North Dakota v. United States of America

Filing 97

Supplement to 96 Order on Motion to Compel. By Magistrate Judge Charles S. Miller, Jr.(KT)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
North Dakota,

)
)
Plaintiff,
)
)
vs.
)
)
United States of America,
)
)
Defendant.
)
____________________________________)
)
Billings County, et. al.,
)
)
Plaintiffs,
)
)
vs.
)
)
United States of America,
)
)
Defendant.
)

SUPPLEMENTAL ORDER RE
PLAINTIFFS’ MOTION
TO COMPEL

Case No. 1:12-CV-125
(Lead Case)

Case No. 1:12-CV-102
(Consolidated Case)

In the table set forth below are the court’s specific rulings with respect to the claims of
attorney-client privilege made by the United States for the reasons expressed more generally in the
Order Granting in Part and Denying in Part Plaintiff’s Motion to Compel dated November 24, 2014,
and filed contemporaneously herewith. The documents that the United States shall produce are
those set forth in the column entitled “Requested by Plaintiffs.”

1

No

USA
Nos.

Description from USA Second Amended
Privilege Log

Requested by
Plaintiffs

Court’s ruling

1

074916074921

Redacted portion of USA074919 contains two
sets of unsigned handwritten notes regarding
communications with the Office of General
Counsel regarding section lines. The first
handwritten note is undated. The second
handwritten note is dated Nov. 3, 1980.

USA074919

Redacted notes by
client employee above
the date of 11/3/80
are not privileged
because no showing
that information was
communicated to
counsel. Redacted
notes under the date
of 11/3/80 that
reference OGC advice
are privileged.
Privilege, however,
has been waived since
the reference appears
to relate to 1980
opinion by OGC
attorney Wood.
Produce full copy of
document sans
redactions.

2

075171075173

Redacted portion consists of handwritten notes
that discuss the content of the Jan. 12, 1962
Office of General Counsel opinion by Morris
Hankins, Attorney in Charge, Office of General
Counsel (USA075171).

USA075171

Any privilege has
been waived because
redacted material
relates to 1962
opinion by OGC
attorney Hankins.
Produce full copy of
documents sans
redaction.

3

076370076382

Redacted portion of USA076370 includes
excerpted text from and discussion of the Jan.
12, 1962 Office of General Counsel opinion by
Morris Hankins and 1975 consultation with the
Office of General Counsel regarding Small v.
Burleigh County

USA076370

Redaction references
privileged 1962
opinion of OGC
attorney Hankins, but
privilege has been
waived. Produce full
copy of document
sans redaction.

4

076417076420

Redacted portions of USA076417 and
USA076419 discuss the Jan. 12, 1962 Office of
General Counsel opinion by Morris Hankins.

USA076417,
USA076419

Redactions reference
privileged 1962
opinion of OGC
attorney Hankins, but
privilege has been
waived. Produce full
copy of documents
sans redaction.

2

No

USA
Nos.

Description from USA Second Amended
Privilege Log

Requested by
Plaintiffs

Court’s ruling

5

076422

Nov. 13, 1980 memorandum by Forest
Supervisor D.C. McIntyre to Regional Forester
that discusses substance of July 3, 1980 Office
of General Counsel opinion by James Woods,
discusses communications with the Office of
General Counsel, requests further review of the
July 3, 1980 opinion and supplies information
regarding the potential effect of that opinion.

USA 076422

Document references
1980 attorney
privileged opinion of
OGC attorney Wood,
but privilege has been
waived. Also, no
showing that the
contents of this
document were
presented to OGC
counsel in
Washington.
Document shall be
produced.

6

076452076455

Redacted portion of April 24, 1985
memorandum by C. Wolf regarding possible
trespass and road construction (USA076453)
discusses content of the 1980 Office of General
Counsel opinions by James Woods.

USA076453

Redaction references
privileged 1980
opinion of OGC
attorney Wood, but
privilege has been
waived. Document
shall be produced sans
redaction.

7

076983076984

Jan. 12, 1962 opinion by Morris Hankins to the
Regional Forester responding to and referencing
Supervisor’s memorandum of December 13,
1961 requesting legal advice relating to the issue
of alleged section line rights-of-way in North
Dakota.

USA076983USA076984

1962 opinion of OGC
attorney Hankins is
privileged, but
privilege has been
waived. Document
shall be produced.

8

077004077006

Redacted portion of USA077005 discusses
substance of the Jan. 12, 1962 Office of General
Counsel opinion by Morris Hankins.

USA077005

Redaction references
privileged1962
opinion of OGC
attorney Hankins, but
privilege has been
waived. Documents
shall be produced sans
redaction.

9

077034077036

Nov. 20, 1980 Memorandum from V.R. Price to
Forest Supervisor enclosing the Nov. 10, 1980
Office of General Counsel opinion by James
Woods relating to section lines in North Dakota
and discussing communications with the Office
of General Counsel.

USA077034USA077036

Documents are
privileged Nov. 1980
opinion of OGC
attorney Wood or
reference the opinion,
but privilege has been
waived. Documents
shall be produced.

3

No

USA
Nos.

Description from USA Second Amended
Privilege Log

Requested by
Plaintiffs

Court’s ruling

10

077037

Dec. 11, 1962 Memorandum from Morris
Hankins to Regional Forester responding to
communication requesting legal advice
regarding section lines and South Dakota.

USA 077037

1962 opinion of OGC
attorney Hankins is
privileged, but
privilege has been
waived. Document
shall be produced.

11

077038

Jan. 22, 1962 memorandum attaching Jan. 12,
1962 Office of General Counsel opinion and
discussing substance of the opinion (opinion
itself is not attached to pdf). The memorandum
references a prior memorandum to the Office of
General Counsel requesting a legal opinion (also
not attached).

USA077038

Document references
privileged 1962
opinion of OGC
attorney Hankins, but
privilege has been
waived. Document
shall be produced.

12

077039077042

Redacted portions of USA077039-USA077042
discusses substance of the Jan. 12, 1962 Office
of General Counsel opinion by Morris Hankins
and 1980 Office of General Counsel opinions by
James Woods as well as subsequent
communications between the Forest Service and
the Office of General Counsel.

USA077039 USA077042

Documents are
privileged Nov. 1980
opinion of OGC
attorney Wood or
reference the opinion
and the earlier
privileged opinion of
attorney Hankins, but
privilege has been
waived. Documents
shall be produced sans
redactions.

13

077047077048

July 8, 1980 Memorandum from V.R. Price
enclosing July 3, 1980 Office of General
Counsel opinion by James Woods. The July 8,
1980 memorandum includes a handwritten note
discussing substance of the Jan. 1962 Office of
General Counsel opinion by Morris Hankins.

USA077047USA077048

Documents are
privileged July 1980
opinion of OGC
attorney Wood or
reference the opinion,
but privilege has been
waived. Documents
shall be produced.

14

077050077052

Redacted portion of USA077050 includes two
sets of unsigned handwritten notes regarding
communications with the Office of General
Counsel regarding section lines. The first
handwritten note is undated. The second
handwritten note is dated Nov. 3, 1980.

USA077050

Redacted notes by
client employee are
not privileged except
for that portion under
the date 11/3/80 that
reference OGC advice
which is privileged.
Privilege, however,
has been waived since
the reference is to
OGC attorney Wood
opinion. Document
shall be produced sans
redactions.

4

No

USA
Nos.

Description from USA Second Amended
Privilege Log

Requested by
Plaintiffs

Court’s ruling

15

077056

Nov. 20, 1980 Memorandum from V.R. Price to
Forest Supervisor enclosing the Nov. 10, 1980
Office of General Counsel opinion by James
Woods relating to section lines in North Dakota
and discussing communications with the Office
of General Counsel. Includes handwritten notes
regarding subsequent communications with the
Office of General Counsel.

USA077056

Document does not
contain attorney-client
privileged
information, but, even
if it did, the privilege
has been waived
because it relates to
Nov. 1980 opinion of
OGC attorney Wood.
Document shall be
produced.

16

077058077063

Redacted portions of USA 077039-USA077040
discuss advice from the Office of General
Counsel, 1962 Office of General Counsel
opinion by Morris Hankins, and the 1980 Office
of General Counsel opinion by James Woods.
Also redacted is a copy of the 1962 Office of
General Counsel opinion by Morris Hankins
(USA077041-USA077042).

USA077058 USA077063

Documents are
privileged 1962
opinion of OGC
attorney Hankins or
reference the Hankins
opinion and the Nov.
1980 privileged
opinion of Wood, but
privilege has been
waived. Documents
shall be produced sans
redactions.

[note the referenced document numbers appear
to be in error and should be USA077058USA077059 with respect to the first reference
and USA077062-USA077063 for the second]
17

077064

Dec. 31, 1980 memorandum from Tom Coston,
Regional Forester, to the Forest Supervisor for
the Custer National Forest, discussing advice
from the Office of General Counsel.

USA077064

Document references
privileged opinion of
OGC attorneys Wood
and public letter of
Hankins, but privilege
has been waived.
Document shall be
produced.

18

077065077073

Redacted portion of Apr. 24, 2002 letter
discusses the substance of 1962 and 1980
opinions by the Office of General Counsel.
Attachments to the Apr. 24, 2002 letter that
either discuss or contain Office of General
Counsel advice are redacted, including: the Dec.
31, 1980 memorandum from Tom Coston (same
document as USA077064); Dec. 18, 1980
memorandum from David Filius discussing
1980 and 1962 opinions by the Office of
General Counsel; and, the Jan. 12, 1962 opinion
from the Office of General Counsel (same
document as USA076983-USA076984).

USA077065 USA077073

Documents are
privileged 1962
opinion of OGC
attorney Hankins or
reference the opinion
and the 1980 opinions
of OGC attorney
Wood, but privilege
has been waived.
Documents shall be
produced sans
redactions.

5

No

USA
Nos.

Description from USA Second Amended
Privilege Log

Requested by
Plaintiffs

Court’s ruling

19

077074077076

Redacted portion of USA077074 discusses the
substance of the Jan. 12, 1962 Office of General
Counsel opinion by Morris Hankins.

USA077074

Redaction reflects
privileged advice
given by OGC
attorney Hankins in
1962, but privilege has
been waived. Produce
the document sans
redactions.

20

077078077079

July 8, 1980 Memorandum from V.R. Price
enclosing July 3, 1980 Office of General
Counsel opinion by James Woods.

USA077078USA077079

Documents are
privileged July 1980
opinion of OGC
attorney Wood or
reference the opinion,
but privilege has been
waived. Produce the
documents sans
redactions.

21

077167077169

Redacted portion of USA077168 discusses the
substance of 1962 and 1980 opinions by the
Office of General Counsel.

USA077168

Redaction reflects
privileged advice
given by OGC
attorney Hankins in
1962, but privilege has
been waived. Produce
the document sans
redactions.

22

077170077171

Redacted portion discusses the substance of the
1980 Office of General Counsel opinions by
James Woods.

USA077171

Redacted portion of
document reflects
privileged advice
given by OGC
attorney Wood in July
1980, but privilege has
been waived. Produce
the document sans
redactions.

IT IS SO ORDERED.
Dated this 25th day of November, 2014.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

6