United States of America v. State of Louisiana et al

Filing 273

ORDER denying 248 Supplemental Motion to Compel the Production of Documents Asserted to be Privileged. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 8/20/2015. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
UNITED STATES
OF AMERICA

CIVIL ACTION

VERSUS

NO. 11-470-JWD-RLB

STATE OF LOUISIANA AND
LOUISIANA DEPARTMENT OF
HEALTH AND HOSPITALS, et al.

RULING AND ORDER ON UNITED STATES’ MOTION TO COMPEL

Before the Court is the United States’ supplemental Motion to Compel the Production of
Documents Asserted to be Privileged (R. Doc. 248) by Defendants, the Louisiana Department of
Health and Hospitals (DHH) and the Louisiana Department of Children and Family Services
(DCFS). In its Motion, the U.S. objects to 6 documents withheld by DHH and DCFS as
protected by either the work product doctrine, joint defense/common interest privilege or the
deliberative process privilege. The U.S. filed the disputed documents under seal. (Defs.’ Sealed
Exhs. 1-6, R. Docs. 249-1 – 249-6). Defendants, DHH and DCFS, filed an Opposition in
response to the U.S.’s Motion. (R. Doc. 254). For the reasons given below, the United States’
Motion to Compel is DENIED.
I.

APPLICABLE LAW
Rule 26(b)(1) of the Federal Rules of Civil Procedure allows a party to “obtain discovery

regarding any nonprivileged matter that is relevant to any party’s claim or defense.” A relevant
discovery request seeks information that is “either admissible or is reasonably calculated to lead
to the discovery of admissible evidence.” McLeod, Alexander, Powel & Apffel, P.C. v. Quarles,

894 F.2d 1482, 1484 (5th Cir. 1990) (quoting Fed. R. Civ. P. 26(b)(1)). Nonetheless, a party
may withhold otherwise discoverable information on the basis of privilege. Fed. R. Civ. P.
26(b)(1). Here, Defendants have asserted two privileges in withholding documents in discovery:
the work-product doctrine and the deliberative process privilege.
A.

Work Product Doctrine

Rule 26(b)(3) of the Federal Rules of Civil Procedure restricts a party’s ability to obtain
work product from an opponent during discovery. Work product consists of “documents and
tangible things that are prepared in anticipation of litigation or for trial by or for another party or
its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or
agent).” Fed. R. Civ. P. 26(b)(3)(A). The work product protection is broader in scope and reach
than the attorney client privilege. 1 The attorney client privilege “extends only to client
communications, while the work product protection encompasses much that has its source
outside client communications.” Stoffels v. SBC Communications, Inc., 263 F.R.D. 406, 412
(S.D. Tex. 2009).
Work product protections “are held by both the attorney as well as the client” and may be
asserted and waived by either. In re Grand Jury Subpoenas, 561 F.3d 408, 411 (5th Cir. 2009).
Rule 26(b)(3) distinguishes between “ordinary” and “opinion” work product. The party seeking
disclosure of opinion work product is subject to a higher burden because opinion work product
reveals the “mental impressions, conclusions, opinions, or legal theories of an attorney.” Conoco
Inc., 191 F.R.D. at 118 (quotations omitted).

1

The Fifth Circuit also recognizes a “common legal interest” or “joint defense” privilege. In re Santa Fe Int’l Corp,
272 F.3d 705, 710 (5th Cir. 2001). This is not an independent privilege, but is instead an extension of the
underlying privilege. Communications protected under the common legal interest extension include
communications between co-parties in actual litigation and their counsel, and communications between potential coparties and their counsel. Id.

B.

Deliberative Process Privilege

The deliberative process privilege protects documents reflecting “advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies” are made. N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975);
see also Branch v. Phillips Petroleum Co., 638 F.2d 873, 881 (5th Cir. 1981). To be clear, the
“opinions and interpretations” embodying the agency’s “effective law and policy” fall outside
the scope of the deliberative process privilege. N.L.R.B., 421 U.S. at 153. However, documents
reflecting the agency’s “group thinking in the process of working out its policy and determining
what its law shall be” are protected by the deliberative process privilege. Id.
II.

DISCUSSION
The current discovery dispute involves a series of emails that were all generated in 2013

and involve communications, in some part, by attorneys. This litigation has been pending since
July of 2011. Some of the issues presented in this case concern the Scott litigation in the Eastern
District of Louisiana, which is referenced in some of the disputed emails. Scott v. Schedler, No.
11-926 (E.D. La. Filed April 19, 2011). As an initial matter, the Court notes that the result of the
Scott litigation and, in particular, its potential effect on this matter is currently disputed by the
parties and has been in dispute at all times relevant to this Order. (R. Docs. 208, 220, 230, 238,
260). The United States in this matter provided a Notice of Related Action the day after filing
the Complaint, noting the similarity of the allegations and defendants in both actions. (R. Doc.
2). In addition, to the extent any emails at issue involve correspondence between DHH, DCFS
and the Secretary of State, the Court finds that in all respects these emails are between persons or
entities sharing a common legal interest and that those communications were exchanged in
confidence for the limited purpose of assisting in their common cause.

Exhibit Nos. 1 and 4 consist of email communications between DHH’s in-house trial
counsel, Rebecca Clement, and the Secretary of State’s in-house counsel and NVRA coordinator,
Lani Durio. (R. Docs. 249-1 and 249-4). Defendants contend that the emails are privileged
because they reveal counsel’s position on a legal issue before the Court.
Ms. Clement has been a counsel of record in this matter since March of 2012. In her July
10, 2013 email to Ms. Durio, Ms. Clement indicates her “current position” on a legal issue to
which “there has been no Court ruling.” (R. Doc. 249-1 at 3). The content of the email not only
discusses an unresolved legal issue, but also explains that DHH’s position on that issue has been
challenged by the United States. In a later email, Ms. Clement provides the legal authority on
which she bases her position. (Exh. No. 4, R. Doc. 249-4 at 1). The Court agrees with
Defendants’ that these emails fall under the work product doctrine, as the emails contain “DHH
in-house counsel’s mental impressions about legal theories/strategies/positions of DHH in
connection with this litigation.” (R. Doc. 254 at 6).
The email correspondence outlines, in part, Ms. Clement’s position in this litigation. (R.
Doc. 174). The United States has not shown any substantial need for this material. The Court
also notes that the portions of Exhibit No. 1 that relate exclusively to the logistics of complying
with the NVRA and the Secretary of State’s rules were disclosed. The United States’ Motion to
Compel the production of the emails contained in Exhibit Nos. 1 and 4 is, therefore, denied.
Defendants claim that Exhibit Nos. 3 and 5 are protected from disclosure by the
deliberative process privilege. 2 Specifically, Defendants argue that the emails relate to “DHH’s
processes prior to adopting/revising its NVRA-related policies and procedures in conformity
with the [Secretary of State’s] rules.” (R. Doc. 254 at 7, 8). For a document to fall under the

2

Defendants also take the position that Exhibit Nos. 3 and 5 are additionally protected under the work product
doctrine.

deliberative process privilege it must be both “pre-decisional and deliberative.” Pacific Gas &
Electric Co. v. U.S., 70 Fed. Cl. 128, 133 (2006). Information is considered pre-decisional if it
precedes the agency’s ultimate decision and reflects “the personal opinions of the writer rather
than the policy of the agency.” Coastal States Gas Corp. v. Dep’t of Energy, 627 F.2d 854, 866
(D.C. Cir. 1980); see also Janvey v. Adams & Reese, LLP, 2015 WL 2453730, at *3 (M.D. La.
May 22, 2015) (same). “To be deliberative, a document must reflect the give-and-take of the
consultative process . . . .” Pacific Gas & Electric Co., 70 Fed. Cl. at 134.
Exhibit No. 3 is an email authored by Lani Durio, SOS NVRA coordinator and in-house
counsel, and addressed to DHH in-house counsel and another non-attorney employee of DHH.
(R. Doc. 249-3). In the email, Ms. Durio is informing DHH of her belief that a particular course
of action “may be insufficient” as “a means of discharging voter registration under the NVRA”
and recommends an alternative course of action for DHH to undertake.
Exhibit No. 5 is comprised of two e-mails, sent between DHH in-house counsel and Ms.
Durio, regarding the treatment of certain “declaration forms,” which are provided to applicants
along with the application for disability services. (R. Doc. 249-5). The email correspondence
specifically relays concerns expressed by DHH “staff and litigating lawyers” about whether
certain procedures would run afoul of a certification made to the court. Likewise, the email
response from Ms. Durio contains what appear to be the subjective opinions of its author,
provided as guidance for DHH to consider in formulating future policies or procedures.
This Court finds that the communications in Exhibit Nos. 3 and 5 are protected by the
deliberative process privilege. They are pre-decisional and reflect the give and take of the
decision making process of DHH and the subjective opinions of not only the author of the

email(s), but with respect to Exhibit 5, those of trial counsel during the pendency of this action
(“litigating lawyers”).
Defendants assert that Exhibit Nos. 2, 3, 5 and 6 are likewise protected from disclosure
by the work product doctrine. These emails contain communications between DHH and SOS
attorneys and non-attorney employees regarding their obligations under the NVRA following the
Scott litigation. Some of the correspondence is by and between counsel of record in the instant
litigation. The United States urges the Court to adopt a view that these emails relate to
Defendants’ “obligation to comply with the NVRA” and that neither this litigation nor the Scott
litigation created that obligation. (R. Doc. 248-4 at 7). Thus, the United States’ position is that
“communications about complying with either the requirements of the NVRA Rule or the NVRA
itself would have occurred irrespective of this litigation and are not protected work product.” (R.
Doc. 248-4 at 7).
Defendants suggest the emails contain counsels’ opinions, analyses, interpretations
and/or thought processes “specifically regarding their agency-clients’ legal positions in this
litigation as well as their compliance with a court order in the concluded (but still binding)
related litigation in Scott.” (R. Doc. 254 at 2). Defendants argue that the “inevitable conclusion
is that they not only relate to litigation but they constitute opinion work product.” (R. Doc. 254 at
1-2).
The work product “doctrine is not an umbrella that shades all materials prepared by a
lawyer, or agent of the client.” ReedHycalog UK, Ltd. v. Baker Hughes Oilfield Operations Inc.,
242 F.R.D. 357, 360 (E.D. Tex. 2007). Instead, it only protects those documents prepared in
anticipation of litigation that reveal counsel’s “legal theories and mental impressions regarding
strategy in preparation for trial.” Rainbow Investors Grp., Inc. v. Fuji Trucolor Missouri, Inc.,

168 F.R.D. 34, 37 (W.D. La. 1996); see also Teleplus, Inc. v. Avantel, S.A., 2003 WL 23282491,
at *2 (W.D. Tex. April 9, 2003) (“The federal work product doctrine protects trial preparation
materials that reveal strategy, evaluation of strengths and weaknesses of a case, and inferences
drawn from interviews.”). “It is admittedly difficult to reduce to a neat general formula the
relationship between preparation of a document and possible litigation necessary to trigger the
protection of the work product doctrine.” U.S. v. Davis, 636 F.2d 1028, 1040 (5th Cir. 1981).
Put simply, for a document to qualify as work product, “the primary motivating purpose” of the
document must be to aid in litigation. Davis, 636 F.2d at 1040.
In Exhibit No. 2, DHH counsel, Rebecca Clement, is seeking guidance from the SOS’s
NVRA coordinator, Lani Durio, on whether DHH’s particular use of a website link and
distribution of voter registration applications would comply with the NVRA. (R. Doc. 249-2).
Exhibit No. 3 concerns the same subject matter, but more specifically, in light of the ruling and
Permanent Injunction issued by the district court in Scott v. Schedler. (R. Doc. 249-3). Exhibit
No. 5, as referenced above, is an email from DHH counsel raising concerns about the legal
integrity of an SOS policy designed to bring the agencies into compliance with the NVRA, in
light of a certification made to the court. (R. Doc. 249-5). The email correspondence specifically
identifies the source of these concerns as “staff and litigating lawyers.” Finally, Exhibit No. 6
concerns email communications between counsel of record for both DHH and SOS in the Scott
litigation and in this litigation. (R. Doc. 249-6). The emails contain attachments that were
“developed by the Secretary of State in an attempt to comply with the Permanent Injunction
issued in Scott v. Schedler.” (R. Doc. 249-6). 3

3

The Court makes no finding as to the discoverability of the attachment or any other actual procedures or policies
that have been put in place for purposes of NVRA compliance.

Exhibit Nos. 2 and 3 pertain to counsels’ legal interpretations of the binding injunction in
Scott and certain aspects of the NVRA. The emails are dated in October and November of 2013
between attorneys, at least one of whom is counsel of record in the current litigation. There is no
question that the interpretations of Scott and its implications are closely related to this case (as
asserted in the preclusion briefs filed in this proceeding (R. Docs. 184, 185, 189, 220, 230, 238)).
These emails go beyond the recitation of established policies or the logistics of implementing
those policies to comply with the NVRA in the context of that decision. Cf. U.S. v. Louisiana,
No. 11-470, 2015 WL 4619561, at *5 (M.D. La. July 31, 2015) (emails discussing the logistics
of implementing NVRA-compliance policies were not privileged in nature). Rather, they
involve communications by and between attorneys during the pendency of this litigation
interpreting the recent result in Scott and the requirements imposed by the NVRA. Although the
emails do not specifically reference the current litigation, the emails call upon counsels’
impressions and opinions regarding matters at issue in this litigation.
Exhibit No. 5 relays concerns expressed by trial counsel concerning the legal integrity of
certain procedures, as well as, the effects (and presumably the consequences) of employing them,
in light of an earlier certification made to the court. The Court concludes that Exhibit No. 5
constitutes work product as the primary purpose of that email was to express the legal
interpretations and the concerns of trial counsel in connection with litigation.
Finally, Exhibit No. 6 also concerns compliance with the injunction issued in Scott, and
particularly illustrates the relation between the Scott case, which was concluded at that time, and
the current litigation, which was already pending. The emails, dated March of 2013, are sent
exclusively to attorneys. Many of the 16 attorneys involved are outside trial counsel in both this
and the Scott litigation and 14 are listed as counsel of record in this case. Aside from the

participation of trial counsel, the substance of the communication convinces the Court that it
constitutes attorney work product as it relays the legal opinions of counsel and his client in
connection with existing litigation. Specifically, trial counsel for one agency expresses his
client’s legal position on the scope of another agency’s jurisdiction, in the context of compliance
with the Scott Injunction.
Because the email communications in Exhibit Nos. 2, 3, 5 and 6 contain either counsels’
legal interpretations or their clients’ positions with respect to issues pending in this litigation, the
Court finds they are protected from disclosure by the work product doctrine.
As a final matter, Defendants broadly suggest that any emails responsive to discovery,
which reference the Scott litigation or the Permanent Injunction issued in Scott, constitute work
product and remain protected in this subsequent litigation. See F.T.C. v. Grolier Inc., 462 U.S.
19, 25 (1983) (under Rule 26, work product “protects materials prepared for any litigation or trial
as long as they were prepared by or for a party to the subsequent litigation”). The Court
acknowledges that it found the specific emails at issue here, including those referring to the Scott
litigation, qualified as work product. However, the Court does not find that any (or every) email
or document referencing the Scott decision or compliance with the NVRA during the pendency
of this action is necessarily privileged. Counsel should carefully evaluate the assertion of
privilege as it pertains to communications regarding a completed litigation.
III.

CONCLUSION
For the reasons given above, the United States’ Supplemental Motion to Compel (R. Doc.

248) is DENIED.
Signed in Baton Rouge, Louisiana, on August 20, 2015.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE