NANTICOKE LENNI-LENAPE TRIBAL NATION v. HOFFMAN
Filing
77
OPINION FILED, Re: 76 Order on Motion for Protective Order. Signed by Magistrate Judge Joel Schneider on 9/19/17. (js)
[Doc. No. 65]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
NANTICOKE LENNI-LENAPE TRIBAL
NATION,
Civil No. 15-5645 (RMB/JS)
Plaintiff,
v.
CHRISTOPHER S. PORRINO,
Attorney General of New
Jersey, In His Official
Capacity,
Defendant.
OPINION
Plaintiff, the Nanticoke Lenni-Lenape Tribal Nation, claims
the State of New Jersey unlawfully repudiated its recognition as
an American Indian Tribe. This Opinion addresses whether certain
documents designated by defendant are protected from discovery
by the attorney-client and deliberative process privileges. 1 For
the reasons to be discussed, defendant’s privilege assertions
are granted in part and denied in part. 2
1
The Court received defendant’s Motion for Protective Order
[Doc. No. 65] and plaintiff’s response [Doc. No. 66]. The Court
also reviewed defendant’s documents in camera. The Court
determined oral argument was not necessary. Fed. R. Civ. P. 78;
L. Civ. R. 78.1.
2
In
addition
to
objecting
to
“deliberative
material,”
defendant’s
privilege
log
also
refers
to
“advisory”
“consultative” and “Inter/Intra-Agency Advisory” material. The
Court assumes these references are subsumed within defendant’s
deliberative process objection.
1
Background
The plaintiff is the Nanticoke Lenni-Lenape Tribal Nation.
Plaintiff
filed
its
complaint
on
July
20,
2015,
its
first
amended complaint on October 19, 2015, and its second amended
complaint on May 5, 2016. On October 27, 2016, the Honorable
Renée Marie Bumb granted in part and denied in part defendant’s
motion to dismiss the second amended complaint. See Lenni-Lenape
v. Lougy, C.A. No. 15-5645 (RMB/JS), 2016 WL 6393802 (D.N.J.
Oct. 27, 2016). The case is now at the tail end of document
discovery and depositions will commence after this motion is
decided.
In a nutshell, plaintiff alleges the State of New Jersey
recognized it as an official New Jersey tribe as early as 1982
and then repudiated the recognition. Plaintiff’s argument is not
derived from whole cloth. In 1982, the State Legislature adopted
a concurrent resolution, “officially recognize[ing] plaintiff as
an American Indian Tribe.” Nanticoke Lenni-Lenape Tribal Nation
v. Hoffman (“Hoffman”), 2017 WL 2919182 at *1 (App. Div. July
10, 2017). 3 After the resolution was passed, plaintiff received
benefits under different federal statutes and programs based on
3
Before this case was filed plaintiff filed essentially the same
lawsuit in state court. The trial court granted defendant’s
motion to dismiss finding plaintiff’s claims were barred because
the state never enacted a statute expressly recognizing
plaintiff as an American Indian Tribe. Id. The Appellate
Division reversed the decision on July 10, 2017. At the present
time plaintiff plans to proceed with its state and federal cases
simultaneously.
2
New
Jersey’s
Tribe. Id.
recognition
Plaintiff
also
of
plaintiff
relies
as
upon
an
the
American
September
Indian
9,
1992
letter written by the New Jersey Director of Ethnic Affairs from
the Office of the Governor, addressed to the General Manager,
Indian Arts and Crafts Board, U.S. Dept. of the Interior, which
states:
Governor Florio has asked me to respond to your recent
letter about the status of state-recognized Indian
tribes in New Jersey.
The New Jersey State Legislature … is the law-making
body that is responsible for the legal recognition of
Indian tribes. Formal recognition is accomplished by
State Resolutions, which remain in effect until
rescinded.
To date, three tribes have been
Nanticoke Lenni-Lenape Tribe was
Senate in 1981. 4
Despite
this
history,
plaintiff
recognized…. [T]he
recognized by the
argues
the
State
backtracked
when on December 14, 2001, the Director of New Jersey’s Division
of
Gaming
Enforcement
(“DGE”)
wrote
to
the
Indian
Arts
and
Crafts Board and stated: “the State has not enacted any statute
for the specific purpose of officially recognizing any Indian
group as a tribe.” The Director also wrote that New Jersey’s
resolutions do not “officially recognize” plaintiff as a tribe….
They
do
not
demonstrate
a
legislative
design
to
formally
acknowledge a tribe’s existence as a domestic independent nation
4
Additional evidence plaintiff relies upon is summarized in the
Appellate Division’s Hoffman decision. See 2017 WL 2919182, at
**1-3; see also 2016 WL 6393802, at **2-5.
3
with tribal sovereignty or to deal with the group in a special
relationship or a government to government basis.” As a result
of the December 14, 2001 letter, plaintiff has lost benefits and
recognition that it enjoyed for years. Plaintiff’s subsequent
efforts to get the State to change and modify its position were
unsuccessful. Plaintiff then resorted to the state and federal
courts for relief.
The Honorable Renée Marie Bumb’s October 27, 2017 Opinion
granting and denying in part defendant’s motion to dismiss ruled
plaintiff
presented
two
viable
claims.
First,
plaintiff
may
proceed on its claim it was denied procedural due process. The
Opinion noted:
In this case, Plaintiff has alleged that no process
whatsoever was provided prior to the loss of their
property
interest….
Simply
put,
as
alleged
by
Plaintiff, one day they were a state-recognized tribe
(and had been for decades), and the next day—with the
swipe of pen and an absence of due process—they were
not.
2016
WL
6393802,
at
*13.
Second,
Judge
Bumb
ruled
plaintiff
could proceed on its equal protection claim.
Here, Plaintiff has alleged they were targeted for the
revocation of their state recognition by Defendant
because of a stereotypical belief concerning Native
Americans
and
their
gaming
rights….
Their
conversations with Defendant concerning this decision
appear to have irrationally focused not on whether the
Defendant was proper in adopting an about-face on
their state recognition, but rather on whether state
recognition would give the tribe a pathway to gaming….
Viewed in the light most favorable to Plaintiff,
Plaintiff has stated a cause of action for violation
of its equal protection rights.
4
Id. at *15. Obviously, the Court’s ruling frames the scope of
permissible
discovery
in
26(b)(1)(“Parties
may
privileged
that
matter
the
obtain
is
case.
Fed.
discovery
relevant
to
R.
Civ.
regarding
any
any
party’s
P.
non-
claim
or
defense and proportional to the needs of the case[.]”).
Turning to the documents at issue, they cover two general
subject areas. The first general area consists of analyses and
discussion of proposed (but not adopted) legislation and its
impact,
inter
alia,
on
whether
plaintiff
was
or
could
be
recognized in some capacity as an American Indian Tribe of New
Jersey. The second general subject area consists of analyses and
discussion
plaintiff
of
as
an
whether
American
the
State
Indian
“officially
Tribe
from
New
recognized”
Jersey.
Also
included is some discussion of tribal gaming issues. Several
types of documents are at issue including “Bill Analysis” with
associated internal memos, various internal memos, legal memos,
draft
letters
to
third
parties,
emails
and
miscellaneous
documents.
Defendant makes several arguments as to why its documents
are not discoverable: (1) the documents are not relevant under
Fed. R. Civ. P. 26(b)(1); (2) the discovery is not proportional;
(3)
the
documents
privilege,
deliberative
and
(4)
process
are
the
protected
documents
privilege.
5
by
the
are
Defendant
attorney-client
protected
makes
a
by
the
separate
argument that its draft letters are irrelevant and privileged.
Not unexpectedly, plaintiff opposes defendant’s relevance
and proportionality arguments. Plaintiff also argues defendant’s
Gaming Division documents are not protected by the attorneyclient privilege because the Gaming Division has no statutory
role
in
state
tribal
recognition
and,
therefore,
its
communications were not made for the purpose of rendering legal
opinions
or
documents
analysis.
intended
for
In
addition,
production
plaintiff
to
third
argues
parties
draft
are
not
arguments
are
privileged.
Discussion
1.
Relevancy and Proportionality
Defendant’s
relevancy
and
proportionality
rejected out of hand. As the parties know, Fed. R. Civ. P.
26(b)(1) provides that parties may obtain discovery regarding
any
non-privileged
matter
relevant
to
any
party’s
claim
or
defense and proportional to the needs of the case. The documents
at issue are unquestionably relevant to key issues in the case.
The
documents
recognition
positions.
address
history
These
and
topics
and
discuss
the
State’s
are
plainly
New
Jersey’s
seemingly
relevant
to
tribal
inconsistent
plaintiff’s
procedural due process claim and its argument that defendant
acted in an arbitrary and capricious manner. The documents also
touch on the DGE’s involvement in tribal recognition issues.
6
This topic is directly relevant to plaintiff’s equal protection
claim
and
plaintiff’s
“pernicious
racial
contention
stereotypes”
that
when
defendant
it
relied
developed
on
policies
related to plaintiff.
Defendant’s
relevancy
objection
is
based
on
a
false
premise. Defendant essentially argues the only issue in the case
is
whether
plaintiff
was
“officially
recognized.”
Defendant
further argues that since its internal documents cannot confer
this recognition, they are irrelevant. (“Quite simply, internal
memoranda
and
Attorney
correspondence
General’s
recognition
of
a
Office
prepared
cannot
putative
by
lawyers
constitute
Native
American
within
official
Tribe
the
State
or
the
repudiation thereof.” Defendant’s Brief (“DB”) at 9). Defendant,
however, ignores plaintiff’s procedural due process and equal
protection claims that survived its motion to dismiss. Not only
is the fact of plaintiff’s recognition a relevant issue, but so
too is the manner in which the State made the decision and why.
Defendant’s argument that its “draft” letters and memos are
irrelevant is also misguided. (“Quite simply, a draft letter
prepared by a lawyer within the Attorney General’s Office cannot
constitute
American
official
Tribe
or
State
have
recognition
any
bearing
on
of
a
the
putative
outcome
Native
of
this
dispute.” DB at 16). For the reasons just stated, defendant is
wrong. Draft letters certainly may bear on whether recognition
7
was granted and if not why not.
Defendant’s
proportionality
objection
also
carries
no
weight as the relevant factors to consider favor plaintiff. The
issues in the case are enormously important to plaintiff as they
significantly
impact
plaintiff’s
livelihood.
Further,
the
requested documents are not available from another source. In
addition, the documents are relevant to core issues in the case.
Further, there is no material burden or expense to defendant to
produce the relatively small number of documents at issue since
they have already been collected and are available to produce.
Having rejected defendant’s relevancy and proportionality
objections,
whether
defendant’s
depends
whether
they
on
are
documents
privileged
should
and,
be
if
produced
so,
if
the
privilege should be pierced.
2.
Attorney-Client and Deliberative Process Privileges
The
gravamen
documents
are
deliberative
of
defendant’s
protected
process
the
by
privileges.
objections
the
The
that
its
attorney-client
and
Court
is
will
proceed
to
discuss the general principles that apply to these privileges.
The
Court
will
then
apply
the
principles
to
defendant’s
documents to decide if they are privileged.
A.
Attorney-Client Privilege
The burden of establishing that a document is privileged is
on the party asserting the privilege. Torres v. Kuzniasz, 936 F.
8
Supp. 1201, 1208 (D.N.J. 1996). The attorney-client privilege
protects communications when: (1) the asserted holder of the
privilege is or sought to become a client, (2) the person to
whom the communication was made (a) is a member of the bar of a
court,
or
his
communication
subordinate
is
acting
and
as
a
(b)
in
lawyer,
connection
(3)
the
with
the
communication
relates to a fact of which the attorney was informed (a) by his
client (b) without the presence of strangers (c) for the purpose
of securing primarily either (i) an opinion on law or (ii) legal
services or (iii) assistance in some legal proceeding, and (d)
not for the purpose of committing a crime or tort, and (4) the
privilege has been (a) claimed and (b) not waived by the client.
Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 862
(3d Cir. 1994).
The attorney-client privilege does not apply just because a
statement was made by or to an attorney. Thus, the mere fact
that a lawyer authors or receives a document does not prove it
is privileged. Spiniello Companies v. Hartford Fire Insurance
Company,
C.A.
No.
07-cv-2689
(DMC),
2008
WL
2775643,
at
*2
(D.N.J. July 14, 2008)(simply copying or “cc’ing” an attorney on
an
email
is
not
enough
to
establish
a
privilege);
Andritz
Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609, 633
(M.D. Pa. 1997)(“What would otherwise be routine, non-privileged
communications
between
corporate
9
officers
or
employees
transacting the general business of the company do not attain
privileged status solely because in-house or outside counsel is
‘copied in’ on correspondence or memoranda”). This makes perfect
sense because otherwise parties could facilely avoid producing
relevant
document.
discovery
See
Orion
by
simply
Corp.
copying
v.
Sun
an
attorney
Pharmaceutical
on
every
Industries,
Ltd., C.A. Nos. 07-5436 (MLC), 08-5545 (MLC), 2010 WL 686545, at
*8 (D.N.J. Feb. 22, 2010)(“Because the privilege may be employed
to obstruct the search for truth, the privilege is not absolute
and care must be taken to insure the privilege is not abused”).
The attorney-client privilege applies to communications and
not facts. Rhone-Poulenc Rorer, Inc., 32 F. 3d at 862 (“The
client … may not refuse to disclose any relevant fact within his
knowledge merely because he incorporated a statement of such
fact
into
his
communication
to
his
attorney.”)(citation
and
quotation omitted); see also La Mun. Police Employees Ret. Sys.
v. Sealed Air Corp., 253 F.R.D. 300, 305 (D.N.J. 2008)(“In all
instances, the facts underlying any given communication remain
discoverable”); Upjohn Co. v. U.S., 449 U.S. 383, 395-96 (1976).
Instead, “[t]he [attorney-client] privilege protects only those
disclosures - necessary to obtain informed legal advice – which
might not have been made absent the privilege.” Westinghouse
Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414, 1423-
10
24 (3d Cir. 1991) (citation, quotation and emphasis omitted);
see also Fisher v. United States, 425 U.S. 391, 403 (1976).
An
attorney
who
is
not
performing
legal
services
or
relaying legal advice and who performs non-legal duties does not
qualify
for
the
privilege.
Payton
v.
New
Jersey
Turnpike
Authority, 148 N.J. 524, 550-51 (1997); Fredericks v. Atlantic
City Bd. of Educ., C.A. No. 08-3082 (RBK/JS) 2010 WL 3429605, at
*5
n.6
(D.N.J.
Aug.
26,
2010)(not
infrequently
lawyers
are
engaged to perform non-legal services); see also Ellerstein v.
Herman Body Co., 23 N.J. 348, 352 (1957), adopting the lower
Court’s ruling that if an attorney “is engaged for the rendition
of work which inherently is not the practices of law and his
knowledge
of
law
engagement
is
for
litigation
may
may
along
non-legal
arise
from
the
line
work.”
the
come
This
subject
is
of
into
true
the
play,
even
the
if
attorney’s
activities. Payton, 148 N.J. at 551.
B.
Deliberative Process Privilege 5
5
In order to assert the deliberative process privilege three
procedural requirements must be satisfied. First, there must be
a formal claim of privilege by the head of the department which
has control over the matter. Second, the responsible agency
official
must
provide
specific
reasons
for
asserting
confidentiality over the government documents. Third, the
government documents sought to be protected must be identified
and described. U.S. v. Ernstoff, 183 F.R.D. 148, 152 (D.N.J.
1998)(citations omitted). The Certification of B. Stephan
Finkel, Director of Legislative Affairs in the Attorney
General’s Office [Doc. No. 65-5], as well as defendant’s
privilege log, satisfies these procedural requirements.
11
When
a
plaintiff’s
claim
is
based
on
federal
law,
like
here, the issues concerning privilege are governed by federal
common law. See Fed. R. Evid. 501. Federal common law recognizes
the deliberative process privilege. U.S. v. Pechiney Plastics
Packaging, Inc., C.A. No. 09-5692 (PGS), 2013 WL 1163514, at *13
(D.N.J.
March
protects
19,
2013).
communications
The
that
deliberative
are
part
of
process
the
privilege
decision-making
process of a government agency. NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 150-152 (1975). The privilege “prevent[s] injury
to
the
quality
premature
of
or
agency
decisions
indiscriminate
which
disclosure
could
of
result
from
deliberations
comprising part of a process by which government decisions and
policies
are
formulated.”
Delaware
River
Basin
Delaware
Com’n,
300
Riverkeeper
F.R.D.
207,
Network
210
v.
(D.N.J.
2014)(citation and quotation omitted).
A party’s assertion of the deliberative process privilege
requires a two-step review in the district court. First, it must
be decided whether the communications at issue are privileged.
Second, the court must balance the parties’ interests. Redland
Soccer Club, Inc. v. Department of Army of U.S., 55 F.3d 827,
854 (3d Cir. 1995). The initial burden of showing the privilege
applies is on the government. Id. Further, like other executive
privileges,
the
deliberative
process
narrowly construed. Id. at 856.
12
privilege
should
be
In
order
to
be
privileged,
the
material
sought
to
be
protected must be pre-decisional and deliberative. Abdelfattah
v. United States Dept. of Homeland Sec., 488 F.3d 178, 183 (3d
Cir.
2007).
Pre-decisional
documents
“must
concern
an
anticipated agency decision and have been generated prior to the
actual decision being reached; it cannot involve a communication
concerning the decision made after the decision has already been
adopted.” Delaware Riverkeeper, 300 F.R.D. at 211 (citation and
quotation omitted). In order to be deliberative a document must
contain
“advisory
opinions,
recommendations
and
deliberations
comprising part of a process by which governmental decisions and
policies
are
formulated.”
Id.
A
document
that
reflects
the
writer’s personal opinions rather than the policy of the agency
is
also
protected.
Otherwise,
disclosure
could
inaccurately
reflect or prematurely disclose the views of the agency rather
than a personal opinion. Id. In sum, therefore, “[a] document is
predecisional
if
it
reaching
his
or
her
reflects
the
was
drafted
decision,
give[]-and-take
to
and
of
aid
it
the
is
a
decision
maker
deliberative
consultative
if
in
it
process.”
Qatanani v. Department of Justice, C.A. Nos. 12-4042(KSH)(CLW),
12-5379 (KSH)(CLW), 2015 WL 1472227, at *8 (D.N.J. March 31,
2015).
The deliberative process privilege is not absolute. Redland
Soccer Club, 55 F.3d at 854. The privilege does not protect
13
factual information, even if such information is contained in an
otherwise protectable document, as long as the information is
severable.
Id.;
see
also
U.S.S.E.C.
v.
Sentinel
Mgmt.
Grp.,
Inc., No. 07 C 4684, 2010 WL 4977220, at *3 (N.D. Ill. Dec. 2,
2010)(internal citations omitted)(“Discussion of objective facts
as opposed to opinions and recommendations, generally is not
protected
“[w]hile
by
the
factual
deliberative
information
process
is
privilege.”)
generally
not
However,
exempt
from
disclosure, in certain circumstances, purely factual material is
presented in a manner such that its release in itself would
compromise the deliberative process.” Novo Labs v. F.T.C., C.A.
No. 80-1989, 1981 WL 2214, at *4 (D.D.C. July 21, 1981)(citing
Mead Data Central Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242,
256 (D.C. Cir. 1977)); Montrose Chem. Corp. v. Train, 491 F.2d
63,
68
(D.C.
Cir.
1974);
see
also
F.T.C.
v.
Hope
Now
Modifications, LLC, C.A. No. 09-1204 (JBS/JS), 2011 WL 2634029,
at *3 (D.N.J. July 5, 2011)(“[P]urely factual information must
be segregated from deliberative material and produced unless it
is
inextricably
would
itself
intertwined
reveal
the
with
the
deliberative
privileged
material
process”)(citation
or
and
quotation omitted).
As noted, the deliberative process privilege is qualified.
Redland, 55 F.3d at 854. If the privilege applies the party
requesting documents may attempt to show that its need for the
14
documents outweighs the government’s interest in non-disclosure.
Relevant
factors
to
consider
are
(1)
the
relevance
of
the
requested documents, (2) the availability of other evidence, (3)
the seriousness of the litigation and issues involved; (4) the
role of the government in the litigation; and (5) the potential
for inhibiting candor by government employees resulting from the
disclosure. Id. 6
3.
Defendant’s Documents
For ease of analysis the Court will address defendant’s
documents by category. These are: (1) Bill Analyses, (2) legal
memos, (3) draft letters to Meridith Stanton with associated
cover memos, (4) internal memos, and (5) miscellaneous.
A.
Bill Analyses
In the 2001-2002 time period several bills were proposed to
address Indian issues. They include Assembly Bill (“AB”) No.
2957, introduced on November 9, 2000, AB No. 2292, introduced on
May 9, 2002, and Assembly Substitute No. 2292, introduction date
unknown. The content and impact of these Bills were discussed in
memos exchanged between and amongst personnel from the DGE and
various personnel in the Department of Law and Public Safety,
including Legislative Analysts, Assistant Attorney Generals and
6
Other factors courts consider are: (1) the interest of the
litigant, and ultimately society, in accurate judicial fact
finding;
(2)
the
presence
of
issues
concerning
alleged
governmental misconduct; and (3) the federal interest in the
enforcement of federal law. U.S. v. Irvin, 127 F.R.D. 169, 173
(C.D. Cal. Aug. 9, 1989).
15
the Attorney General. The bulk of the bill analyses were done by
DAG Beverly Tanenhaus, Esquire, from the DGE. The Court finds
these documents are protected from discovery by the deliberative
process privilege. 7
The focus of these documents is whether the Department of
Law
and
Public
legislation.
The
Safety
should
documents
support
are
or
protected
oppose
by
the
the
proposed
deliberative
process privilege because: (1) the documents are pre-decisional
and
deliberative
in
the
sense
that
they
address
whether
the
Department should support or oppose the proposed legislation, a
decision that had not yet been made, (2) the documents involve
advisory opinions and recommendations about how the Department
should
act,
and
(3)
the
documents
do
not
contain
primarily
factual material, and to the extent facts are mentioned they are
already in the record.
The Court disagrees with plaintiff that its interest in
production of these documents outweighs defendant’s interest in
non-disclosure.
Recognizing
that
the
deliberative
process
privilege is qualified, and applying the relevant factors to
consider, the Court does not find that plaintiff’s interests
outweigh those of the State. There is no question this is a
significant
case
with
important
7
implications
for
plaintiff.
Although plaintiff concedes defendant’s bill analysis documents
are protected by the deliberative process privilege (Plaintiff’s
Brief (“PB”) at 13), the Court will nevertheless proceed to
justify its ruling.
16
However,
in
the
Court’s
judgment
these
documents
are
not
materially relevant to the core issues in the case. The case
focuses on the State’s past legislative and executive actions.
The case does not focus on proposed legislation that was not
passed. The reasons expressed in the Department’s documents for
or against the proposed legislation will not, in the Court’s
judgment, have a material impact on the outcome of the case.
Further,
the
recognition
cumulative
State’s
are
justifications
mentioned
discussion
in
in
the
other
for
opposing
produced
subject
tribal
documents.
documents
will
not
The
add
material new information to discovery already produced.
The Court recognizes it could be argued the State’s reasons
for opposing certain legislation are relevant to its underlying
motivation. Although this may be true, the State’s analyses of
proposed legislation is not directed to the crux of plaintiff’s
case
which
is
that
the
State
backtracked
on
its
previous
official tribal recognition. As to these documents, the State’s
interest
in
plaintiff’s
especially
protecting
interest
true
given
its
in
the
deliberative
reviewing
the
importance
of
process
documents.
the
bill
outweighs
This
is
analyses.
“These bill comments inform whatever positon or course of action
the Attorney General decides to take on a bill, or the legal
advice the Attorney General might provide to the Office of the
Governor’s counsel to assist them in dealing with or advising
17
the
Governor
on
pending
legislation.”
Cert.
of
&8.
Finkel
Further, the bill comments “are a primary, critical source for
the
confidential
deliberations
undertaken
by
the
Legislative
Affairs Unit in devising an appropriate strategy or course of
action in dealing with pending legislation.” Id. &9.
The Court does not accept plaintiff’s argument that since
defendant’s analyses addressed old proposed legislation that is
no longer being considered, production will not have a chilling
effect
because
no
government
employee
can
reasonably
expect
his/her communications will always be confidential. PB at 13. To
the
contrary,
candid
and
production
frank
of
defendant’s
communications
that
analyses
are
could
necessary
chill
to
an
effectively run state government. While defendant’s analyses may
not remain confidential forever, a decision this Court is not
addressing,
the
State’s
deliberations
should
not
be
produced
while the issues they address are at the forefront of current
events being actively litigated.
For
these
reasons,
therefore,
the
State’s
interest
in
protecting its confidential deliberations outweigh plaintiff’s
interests in discovery concerning proposed legislation that was
not passed. Therefore, defendant’s documents analyzing proposed
legislation
is
protected
from
discovery
by
the
deliberative
process privilege. The Court finds the following specific “bill
analysis” documents are protected from discovery:
18
1.
AG218 – 226 – May 22, 2001 “Bill Analysis” of AB
2957 prepared by DAG Tanenhaus and addressed to John
Peter Suarez, Director, DGE.
2.
AG317 – 327 – June 10, 2002 “Bill Analysis” of AB
2292 prepared by DAG Tanenhaus and addressed to Lori
Dawes, Administrative Analyst. 8
B.
At
Legal Memos
various
times
DAG
Tanenhaus
and
Assistant
Attorney
General Lewis Scheindlin prepare lengthy legal memos addressing
Indian gaming issues.
The documents that fit into this category
include:
1.
AG175 - 187 – February 10, 2000 memo from T.
Tanenhaus to Suarez re: Acquisition of Trust Land and
Casino Gaming.
2.
AG335 – 367 – June 13, 2002 draft memo from
Tanenhaus to Mark J. Fleming, Deputy Chief Counsel,
Office of the Governor re: Federal Acknowledgement of
Indian Tribes.
3.
AG385 - 412 – July 30, 2002 Final version of June
13, 2002 draft memo.
4.
AG987 - 998 – September 13, 2011 memo from Lewis
A. Scheindlin, Assistant Attorney General to Robert
Hanna, Director Division of Law re: Recognition of
Indian Tribes.
Although the listed legal memos are unquestionably relevant
to
issues
in
the
case,
they
are
classic
attorney-client
privileged documents that are not discoverable. The memos were
prepared
by
lawyers
for
their
clients
for
the
purpose
of
providing legal opinions and advice. Further, the memos were
8
The internal memos that accompany these documents are addressed
infra.
19
intended to remain confidential as evidenced by their limited
distribution. The mere fact that privileged material is relevant
and material is not enough in and of itself to justify piercing
the
attorney-client
privilege.
Liberty
International
Underwriters Canada v. Scottsdale Insurance Co., C.A. No. 124934 (NLH/JS), 2015 WL 9480014, at *2 (D.N.J. Dec. 29, 2015).
Under New Jersey law there are only three limited situations
where
the
attorney-client
privilege
may
be
pierced,
none
of
which apply here: (1) when the nature of the claim places the
content
of
the
communication
“at
issue”;
(2)
to
protect
an
accused’s constitutional rights; and (3) when the client “calls
his attorney to the stand.” Id. at 3.
Plaintiff
discovery
of
communications
argues
the
its
listed
involving
“highest
materials
the
is
Gaming
priority
to
in
obtain
Division.”
pressing
access
PB
at
to
7.
Plaintiff argues the DGE’s documents are not privileged because
they were not prepared for the “purpose of securing a legal
opinion, service, or assistance.” Plaintiff argues:
Communications with the Gaming Division regarding the
Tribe’s state recognition cannot possibly meet these
standards because the Gaming Division has no statutory
role in state tribal recognition…. The Gaming Division
has no statutory responsibilities regarding tribal
recognition, and could not have been requesting legal
opinions, services, or assistance from its attorneys.
Nor could the Division’s communications have been
“designed to meet [predominantly legal] problems” …
with respect to the Tribe’s state recognition status.
Any communications about the Tribe that involved the
Gaming Division were, on their face, not legal in
20
nature and thus not protected by the attorney client
privilege. (Emphasis in original).
PB at 8-9. Plaintiff believes the DGE’s communications cannot be
privileged because, “the Gaming Division has no proper role to
play
in
state
tribal
recognition,
or
indeed
in
any
tribal
recognition, or indeed in any tribal business, unless and until
a tribe seeks a casino license.” PB at 9.
The Court disagrees with plaintiff. As to the legal memos
listed
above,
it
is
unquestionably
the
case
that
the
DGE’s
attorney provided legal opinions and advice to her client. The
DGE is a division of the Department of Law and Public Safety
headed by the Attorney General. Cert. of Finkel &3. As discussed
infra, AG533 - 535 is not privileged. This memo confirms that
the DGE’s attorney advised the Attorney General and Governor
with
respect
to
various
issues
of
Indian
law.
The
DGE’s
attorney’s client was not just the DGE, but also the Department
of Law and Public Safety. After reviewing the documents at issue
there can be no legitimate dispute they are “designed to meet
problems
which
can
fairly
be
characterized
as
predominantly
legal.” La. Mun. Police Employees Ret. Sys., 53 F.R.D. at 306.
The
fact
recognize
that
an
the
DGE
Indian
did
not
Tribe
is
have
statutory
irrelevant
to
authority
whether
to
its
attorney’s legal analysis provided to the client is privileged.
Also, the fact that the DGE’s attorney was formally assigned to
21
the
DGE
did
not
bar
her
from
doing
legal
work
for
other
departments or divisions.
The attorney-client privilege is not pigeon-holed in the
fashion plaintiff posits. The privilege analysis focus on the
nature
of
the
bureaucratic
communication
hierarchy.
The
provided,
State’s
not
on
attorney’s
the
State’s
legal
analysis
regarding a relevant Indian Tribe issue is privileged no matter
what department, division or section the attorney works in. To
the extent plaintiff argues the DGE had no legitimate interest
in
gaming
issues,
it
is
wrong.
Whether
Indian
groups
could
legally establish gambling in New Jersey is certainly a relevant
topic for the DGE to consider.
C.
On
wrote
December
to
Crafts
Draft Letters to Meridith Stanton with Associated
Cover Letters
14,
Meridith
Board,
2001,
the
Stanton,
Department
Director
Acting
of
of
Director,
Interior,
and
the
DGE,
Indian
responded
Suarez,
Arts
and
to
her
letters asking to be advised whether New Jersey has any State
recognized tribes as defined by the Indian Arts and Crafts Act
of 1990 (“Act”), as well as the process for State recognition of
Indian tribes, if any. The record reflects that at least four
(4)
draft
prepared.
versions
These
of
the
documents
December
include:
14,
AG200
2001
-
202
letter
(August
were
25,
2000), AG214 - 216 (April 23, 2001), AG233 - 234 (July 10, 2001)
22
and AG239 – 241 (November 20, 2001). 9 Plaintiff argues defendant
waived its privilege as to draft versions of a letter intended
to be sent to a third-party.
There is a split of authority as to whether draft versions
of a privileged document eventually disclosed remains privileged
or if the privilege is waived by the publication. Some courts
hold
that
draft
documents
intended
to
be
published
are
not
privileged. In re Grand Jury Proceedings, 33 F.3d 342, 354(4th
Cir.
1994)(“[I]f
a
client
communicates
information
to
his
attorney with the understanding that the information will be
revealed
to
others,
that
information
as
well
as
the
details
underlying the data which was to be published will not enjoy the
privilege.”)(citation and quotations omitted); United States v.
Lawless, 709 F.2d 485, 487 (7th Cir. 1983)(“When information is
transmitted to an attorney with the intent that the information
will be transmitted to a third party …, such information is not
confidential”); In re Grand Jury Subpoena, 204 F.3d 516, 521
(4th
Cir.
2000)(no
communications
on
blanket
privilege
information
a
for
client
drafts
intends
and
to
related
eventually
publish). These courts reason that if a draft was intended to be
disclosed there is no expectation of confidentiality.
9
The Court holds these draft letters are protected by the
attorney-client privilege. The drafts were prepared by lawyers
and
include
legal
advice
and
opinions
regarding
State
recognition of Indian groups. Thus, the Court must decide
whether the State waived its privilege when the final December
14, 2001 draft was published.
23
Other
Courts
reach
a
different
conclusion.
See
U.S.
v.
Schlegal, 313 F. Supp. 177 (D. Neb. 1970); Schenet v. Anderson,
678 F. Supp. 1280 (E.D. Mich. 1988). These decisions hold that a
“privilege
is
waived
only
as
to
those
portions
of
the
preliminary drafts ultimately revealed to third parties.” Id. at
1284.
Although relevant precedent from this District is sparse,
the
issue
(SDW),
was
2009
discussed
WL
1684467
in
S.E.C.
(D.N.J.
v.
June
Teo,
12,
C.A.
2009).
No.
In
04-1815
Teo
the
defendant sought to quash an injunction issued by the S.E.C. to
their attorneys. One issue the Court had to decide was whether
drafts of publicly filed documents were privileged. The Court
ultimately
held,
adopted
“that
any
what
appears
information
to
be
contained
the
in
majority
draft
rule
and
documents,
communicated between an attorney and his/her client which were
not revealed ultimately in a public filing is protected by the
attorney-client privilege.” Id. at *6. This Court agrees with
Teo and the majority of courts that have addressed whether draft
documents intended to be released to the public are privileged.
The Court’s holding encourages frank and complete communications
between an attorney and a client. It is simply not the case that
a client expects everything in a draft letter to be publicly
released. The client and the attorney may not know what will be
24
publicly released until their draft document is finalized. 10
noted
in
Ciesla
v.
New
Jersey
Dept.
of
Health
and
As
Senior
Services, 429 N.J. Super. 127, 141 (App. Div. 2012), “[b]y their
very
nature,
further
draft
documents
revision.”
In
are
preliminary
addition,
and
“[t]entative
subject
findings
to
and
recommendations within [drafts] may be reconsidered, qualified,
supplemented, withdrawn, and even, in some instances, radically
changed
to
reflect
entirely
different
conclusions.”
Id.
The
Court agrees that, “[a] different rule would not … support the
purpose of the privilege which is to encourage free disclosure
of information by the client to the attorney.” Schlegal, 313 F.
Supp. at 179; see also Schenet, 678 F. Supp. at 1280 (“[T]he
Schlegal rule encourages clients to disclose information freely
to their attorneys, and thus is most consistent with the purpose
of
the
attorney-client
privilege.”).
Further,
“[p]reliminary
drafts may reflect not only client confidences, but also the
legal
advice
and
opinions
of
attorneys,
all
of
which
is
protected by the attorney-client privilege.” Id. at 1284.
Based on the Court’s ruling, therefore, the Court rejects
defendant’s
argument
privileged.
The
defendant’s
privilege
Court
that
all
also
is
of
rejects
waived
10
as
its
draft
plaintiff’s
to
all
documents
are
argument
that
drafts
documents
The Court is not addressing a “sham” draft document where it
is known the document will be released but it is marked draft
solely to protect a privilege.
25
intended
to
be
publicly
released.
The
Court
has
carefully
reviewed the numerous drafts of the Stanton letter and the final
version that was sent on December 14, 2001. It turns out that
essentially
all
of
the
information
in
the
December
14,
2001
letter is contained in the earlier drafts. Therefore, relying on
Teo and the leading Schlegal and Schenet cases, the Court rules
that all of the draft Stanton letters are discoverable (AG200 –
202, 214 – 216, 233 -234, and 239 -241). These draft letters are
discoverable
because
the
information
contained
therein
was
publicly released in the December 14, 2001 final version of the
letter that was sent to Stanton. These drafts shall be produced.
D.
Internal Memos
Given their importance, the Court will address each of the
State’s internal memos separately.
(1). December 7, 1999 Memo from J. Bender, AAG to
J. Miller, Director, Division of Law (AG159
– 160)
This memo addresses a request from the Secretary of State
asking whether the State “officially recognized” plaintiff as a
tribe. The State claims the memo is protected by the attorneyclient and deliberative process privileges. The Court agrees and
disagrees in part.
For
the
most
part
this
memo
is
simply
a
summary
of
historical facts regarding “the State record on recognition[.]”
As noted, historical facts are not privileged. Redland Soccer
26
Club, 55 F.3d at 854. Further, the facts in the memo are easily
segregated from the privileged material. See F.T.C., 2011 WL
2634029, at *3 (fact material that is severable from privileged
information must be produced). Nonetheless, portions of the memo
include privileged material. The first sentence of the second
paragraph beginning with, “[t]he State record” reflects attorney
advice and opinions. So too does the last two sentences of the
paragraph
beginning
with,
“[t]he
actions”
and
ending
with
“Indian Tribes.” In addition, the next to last paragraph of the
memo
beginning
and
ending
with,
“In
responding
…
as
Indian
tribes,” contains material protected by the deliberative process
privilege as it discusses a proposed strategy for how to respond
to
the
Secretary
of
State’s
inquiry.
Thus,
the
State
shall
produce this memo and redact the designated material.
The
State’s
interest
in
protecting
its
deliberations
outweighs plaintiff’s interest in reviewing the entire document.
The
State
important
must
issues
know
that
remain
its
private.
strategy
decisions
Otherwise,
frank
regarding
and
candid
discussions will be chilled which will be detrimental to the
effective functioning of the State’s departments and agencies.
Further,
the
substance
of
the
redacted
material
is
not
materially relevant to the underlying merits issues in the case.
Thus, this memo shall be produced except for the noted material
to be redacted.
27
(2). February 14, 2000 Memo from
Furey, Executive AAG (AG174)
Suarez
to
J.
This memo addresses “tribal gaming issues relevant to New
Jersey, “and attaches the privileged February 10, 2000 legal
memo from Tanenhaus to Suarez (AG175 – 187). The State claims
the memo is protected by the attorney-client and deliberative
process privileges. The memo is privileged because it summarizes
the legal opinions addressed in the attached privileged legal
memo.
(3). August 25, 2000 Memo from Tanenhaus to
Suarez (AG198 – 199)
This memo attaches a draft response to Stanton’s inquiry
whether New Jersey officially recognizes plaintiff as a tribe
and discusses the author’s strategic thinking for the wording in
the
draft.
privilege
The
as
it
memo
is
addresses
protected
legal
by
the
issues
and
attorney-client
advice
and
the
author’s opinions and strategy. The memo is also protected by
the deliberative process privilege because it addresses how to
respond
to
Stanton’s
inquiry.
The
memo
does
not
have
to
be
produced.
(4). May 22, 2001 Memo from T. Auriemma, Deputy
Director, DGE to K. Lyons (AG217)
This memo addresses AB-2957 and attaches the privileged May
22,
2001
legal
memo
prepared
by
Tanenhaus
(AG218
-
226).
Defendant claims this memo is protected by the attorney-client
28
privilege. For the same reasons the legal memo is privileged,
this memo is also privileged.
(5). November 19, 2001 Memo from Suarez to J.
Holl, AAG (AG237 - 238)
This memo addresses a response to Stanton’s inquiries and
attaches the November 20, 2001 draft response. Defendant claims
this memo is protected by the attorney-client and deliberative
process privileges. The Court finds this memo is protected by
the deliberative process privilege as it addresses how and when
to
respond
outweighs
to
Stanton’s
plaintiff’s
inquiries.
interest
in
The
State’s
production
interest
of
the
memo
because, inter alia, the memo does not address matters material
to the merits of the case.
(6). September 16, 2002 Memo from B. Hutcheon,
AAG, Director, Legislative Affairs to D.
Samson, Attorney General (AG421 - 422)
This memo addresses AB-2292. Defendant claims the memo is
protected
by
the
attorney-client
and
deliberative
process
privileges. The memo is not protected by the attorney-client
privilege
because
it
does
not
relay
any
legal
advice
or
opinions. The Court agrees the bulk of this memo is protected by
the deliberative process privilege as it addresses the State’s
deliberations
regarding
its
position
vis-à-vis
proposed
legislation AB-2292. However, as to most of the memo plaintiff’s
interest
in
disclosure
outweighs
the
State’s
interest
in
confidentiality. This is true because for the most part the memo
29
summarizes
historical
facts.
Although
some
of
the
writer’s
opinions are interspersed, they are inconsequential.
However, the Court finds the first paragraph on page 1 of
the memo beginning and ending with, “[w]e want … the Department
“shall be redacted. The Court finds the first paragraph on page
two of the memo referring to a letter to Assemblywoman WatsonColeman is not privileged. The Court finds the Department had no
expectation
of
confidentially
in
a
letter
sent
to
an
Assemblywoman, even if the letter addressed the State’s reasons
for opposing AB-2992. The only other portion of this memo that
shall be redacted is the last paragraph beginning and ending
with, “Assistant Governor’s … to attend.” The “To-From” portion
of the memo shall also be produced.
(7). November 25, 2002 Memo from Hutcheon to A.
Accurso, AAG in Charge of Litigation (AG464)
This memo asks for an analysis of AB-2992. Defendant claims
the memo is protected by the attorney-client and deliberative
process
privileges.
This
memo
is
protected
by
the
attorney-
client privilege because it seeks legal advice on an issue of
concern to the Department of Law and Public Safety. The topic to
be addressed is privileged because it may reveal the State’s
strategic thinking.
(8). January 30, 2003 Memo from Mike Haas, DAG to
B. Hutcheon, AAG (AG500)
30
This memo addresses the February 20, 2002 Affidavit of Mark
M. Gould, plaintiff’s Chairman. Defendant claims the document is
protected
by
privileges.
the
The
attorney-client
document
is
and
protected
deliberative
by
the
process
attorney-client
privilege as it addressees legal strategy for how the affidavit
may be used in the future.
(9). December 17, 2003 Memo from Auriemma to P.
Josephsen, Director, Division of Law (AG533535)
This memo addresses the assignment of responsibility for
handling
Indian
protected
by
privileges.
law
the
The
matters.
Defendant
attorney-client
Court
disagrees.
and
This
claims
the
memo
deliberative
memo
merely
is
process
addresses
personnel issues and whether the DGE or the Division of Law
should
handle
Indian
law
matters.
The
memo
does
not
address
legal advice or opinions or deliberative issues. Thus, this memo
shall be produced.
(10). June 12, 2012 Memo from Kathryn Winfree,
Policy Analyst to Deborah L. Gramiccioni,
Deputy Chief of Staff and Cabinet Liaison
(AG1020 - 1021)
This
memo
addresses
plaintiff’s
request
to
the
Attorney
General’s office asking for assistance in obtaining recognition
from the State of New Jersey. Defendant claims the document is
protected
privileges.
by
the
The
attorney-client
document
is
not
31
and
deliberative
attorney-client
process
privileged
because it was not written by, to or for an attorney seeking
legal advice.
As to the deliberative process privilege, the issues is
more
complicated.
Most
of
the
memo
addresses
how
the
State
should negotiate with plaintiff. This is classic deliberative
process
protected
information
that
must
remain
confidential.
However, other portions of the memo simply discuss background
facts. This includes the first paragraph beginning and ending
with “In March … the force of law”, and the third and fourth
paragraphs beginning and ending with, “[t]he federal government
… of the State.” These three paragraphs, as well as the “ToFrom” portion of the memo, shall be produced.
The first and second paragraphs on page two of the memo
(AG1021)
beginning
rights,”
is
privilege.
and
arguably
However,
ending
with,
protected
the
Court
by
“This
the
finds
issue
…
deliberative
plaintiff’s
casino
process
interest
in
disclosure of these paragraphs outweighs the State’s interest in
keeping the material confidential. Therefore, these paragraphs
shall be produced. These paragraphs discuss the State’s critical
December 14, 2001 letter and touch on why it was sent. This
issue
goes
to
the
heart
of
plaintiff’s
case.
Plaintiff
is
entitled to get to the bottom of why, in its view, the State
backtracked on its official recognition. In comparison to the
State’s
discussion
regarding
its
32
settlement
and
mediation
strategy,
the
paragraphs
Court
does
will
not
find
materially
the
production
chill
candid
of
these
government
communications. To be clear, the Court is not directing that the
portions
of
this
memo
discussing
settlement
strategy
be
produced. Discussions of this ilk are simply too important to
the effective functioning of State government to be released.
Only the cited portions of this memo along with the “To-From”
section
shall
be
produced.
The
remaining
material
shall
be
redacted.
(11). August 25, 2000 Memo from Tanenhaus to
Suarez (OPRA0015)
This
memo
attaches
the
August
25,
2000
draft
response
letter to Stanton. The memo is a duplicate of AG198 – 199 and
does not have to be produced.
(12). March 20, 2001 Memo from Tanenhaus to Mary
Louise Burke, Asst. Director, DGE with
attached two pages (OPRA16-18)
This
memo
attaches
an
update
of
Indian
issues
for
the
Department’s Briefing Book (FY2001). Defendant claims the memo
is
protected
by
the
attorney-client
and
deliberative
process
privileges. The March 30, 2001 memo and attachment is protected
by
the
attorney-client
privilege
because
it
addresses
legal
advice or opinions regarding Indian issues related to the Indian
Gaming
Regulatory
Act,
25
U.S.C.
'2701
et.
seq.
(1988).
The
document is also protected by the deliberative process privilege
because
it
addresses
the
State’s
33
deliberations
and
strategy
regarding ongoing relevant developments. The State’s interest in
preparing
concise
developments
and
and
timely
strategies
summaries
outweighs
of
relevant
plaintiff’s
issues,
interest
in
disclosure of the document.
(13). November 19, 2001 Memo from Suarez to John
Hall, AAG (OPRA19-20)
This memo duplicates AG237-238 discussed supra and does not
have to be produced.
(14). September 4, 2002 Memo from Auriemma to D.
Samson, Attorney General (OPRA0024-25)
This memo addresses an August 13, 2002 letter from Stanton
again
inquiring
claims
the
about
document
the
is
State
protected
recognition
by
the
issue.
Defendant
attorney-client
and
deliberative process privileges. The Court agrees the document
is attorney-client privileged as it contains legal advice and
opinions. The document is also protected by the deliberative
process
privilege
as
it
addresses
how
the
Division
and
Department should address Indian recognition issues. Since the
memo contains a detailed discussion of the State’s strategic
thinking,
the
State’s
interest
in
confidentiality
outweighs
plaintiff’s interest in production.
(15). January 7, 2003 Memo from Auriemma to
Hutcheon (OPRA0026)
This memo addresses Stanton’s August 13, 2002 letter. This
memo is not protected by the attorney-client privilege as it
does not address the substance of legal opinions or advice. The
34
memo is protected by the deliberative process privilege as it
addresses how to respond to Stanton. Since the memo does not
contain information germane to the relevant issues in the case,
the
State’s
interest
in
confidentiality
outweighs
plaintiff’s
interest in disclosure.
E.
The
Miscellaneous
binder
of
documents
reviewed
in
camera
contains
different types of documents that are not clear as to whether
they were already produced. Although it is likely the documents
have already been produced, for completeness sake the Court will
address the documents.
(1). AG328 -329 - Copy of AB-2292. This AB is not
privileged and shall be produced.
(2). AG330 - 332 – December 14, 2001 letter from
Suarez to Stanton. This letter released to
the public is not privileged and shall be
produced.
(3). AG368 – 371 – January 18, 2002 letter from
plaintiff to R. Lee Fleming. This nonprivileged letter shall be produced.
(4). AG373 -374 – January 7, 2002 letter from
plaintiff to Assistant Secretary – Indian
Affairs. This non-privileged letter shall be
produced.
(5). AG375 -376 – February 8, 2002 letter from
Acting Director, Office of Tribal Service,
Bureau of Indian Affairs, U.S. Dept. of the
Interior. This non-privileged letter shall
be produced.
(6). AG377 - 378 – June 10, 2002 letter from
Tanenhaus to Rita Souther. This nonprivileged letter shall be produced.
35
(7). AG379 – 380 – January 24, 2002 letter and
June 10, 2002 fax cover sheets. These
irrelevant pages do not have to be produced.
(8). AG432 – October 15, 2002 email from John
Bender to Michael Haas. This non-privileged
email shall be produced. The email does not
address legal issues and does not reveal any
deliberative discussions.
(9). AG465 – Draft Assembly Substitute No. 2292 –
This draft legislation is not privileged and
shall be produced.
(10). December 2, 2002 Email from Lori Dawes to
Michael Haas (AG470 – 471)(Duplicates)
This email summarizes Haas’s phone call with Rita Souther
from the Bureau of Indian Affairs. The email is not privileged
because it simply summarizes the discussion with Souther. No
legal
advice
or
opinions
are
addressed
and
the
memo
is
not
deliberative in nature. The email shall be produced.
(11). December 5, 2002 Email from Gary Ehrlich to
Accurso, et al. (AG472)
This
email
addresses
AB-2992.
The
email
is
privileged
because it relays legal advice. The email is also protected by
the
deliberative
deliberations
process
regarding
privilege
proposed
because
changes
to
it
addresses
A-2292
and
the
positions of the Division and Department. Since the email does
not
contain
case,
the
materially
State’s
important
interest
in
plaintiff’s interest in publication.
36
information
to
confidentiality
plaintiff’s
outweighs
(12). Assembly Substitute 2292 (AG473 - 474)
This proposed substitute bill is not privileged and shall
be produced.
(13). February 20, 2002 Declaration of Mark M.
Gould (AG501-505)
This Declaration is not privileged and shall be produced.
(14.) June 9, 2008 Email from Nina Wells to
Rowena Madden (AG906)
This email sent to the Secretary of State provides comments
regarding “Draft 6 of Executive Order from Clarke Bruno.” The
email is not protected by the attorney-client privilege because
it is not sent by, to or at the request of an attorney. The
email is classic deliberative process privileged material as it
addresses
drafts
of
paramount
interest
a
proposed
Executive
Order.
in
keeping
communications
of
The
State’s
this
type
confidential outweighs plaintiff’s interest in publication.
(15). August 18, 2013 Email from Lewis Scheindlin
to Stephen Finkel (AG974 – 976)
In
these
emails
Finkel
cites
to
February
2011
emails
regarding the tribal recognition issue. The email is protected
by the attorney-client privilege as it contains conversations
amongst attorneys regarding their legal opinions and conclusions
regarding issues related to tribal recognition.
(16). January 14, 2013 Email from David Rebuck to
Mary Jo Flaherty and January 9, 2013 Email
from Flaherty to Rebuck (OPRA35)
37
These
emails
concern
background
materials
for
a
meeting
with plaintiff. No legal advice or opinions are exchanged so the
attorney-client
deliberative
privilege
process
is
not
privilege
is
applicable.
not
Further,
applicable
the
because
no
deliberations are discussed. These emails shall be produced.
(17). Additional Miscellaneous Documents
The Court assumes, but is not certain, that all of the
documents in its binder after OPRA26 and before OPRA35 have been
produced. (These pages are not numbered). If not, the documents
shall be produced as they are not privileged. These include:
January 7, 2013 fax cover sheet, August 13, 2012 Stanton letter
to McIntyre and Suarez, December 14, 2001 letter from Suarez to
Stanton, September 9, 1992 letter from M. Efstratiados to R.
Hart, AB2292, July 29, 2002 fax cover sheet, Senate Concurrent
Resolution
104,
Senate
Concurrent
Resolution
73,
Assembly
Concurrent Resolution, 303, July 22, 2002 letter from plaintiff
to Stanton, July 15, 2002 letter from Stanton to M. Gould, June
15, 2001 letter from Stanton to J. Farmer, and August 10, 1998
letter from Stanton to P. Verniero.
(18). December 3, 1999 Draft letter from Deputy
Attorney General to D. Soaries, Secretary
of State (AG146 – 158, 161 – 173)
This is a draft letter to the Secretary of State regarding
whether
plaintiff
recognized
as
and
tribes
of
two
the
other
State
38
tribes
of
New
were
Jersey.
officially
The
draft
contains
legal
opinions
and
advice
and,
therefore,
is
privileged. At this time, the Court does not know if a final
version
of
this
letter
was
sent
and
who
were
the
final
recipients. Defendant is directed to determine if the letter was
finalized and sent out. If yes, a copy shall be sent to the
Court
to
determine
what
portions
of
the
draft
and/or
final
letter should be produced, if any.
Conclusion
For
Protective
all
the
Order
foregoing
is
GRANTED
reasons,
in
part
defendant’s
and
DENIED
Motion
in
part.
for
An
appropriate accompanying Order was entered on September 15, 2017
[Doc. No. 76].
/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
Dated: September 19, 2017
39
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