Free Motion to Compel - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) )

CAROL AND ROBERT TESTWUIDE, et al., Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.

No.: 01-201L (Honorable Victor J. Wolski)

MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DISCOVERY Plaintiffs, pursuant to RCFC 7 and 37, submits this memorandum in support of the motion to compel discovery filed herewith. BACKGROUND 1. Document Requests In response to requests for production of documents, Defendant produced, inter alia, hundreds of e-mails sent or received by Navy personnel, its contractors, civilian employees and agents. Some of these persons are lawyers. A number of the e-mails are redacted to varying degrees. In some instances, whole pages are redacted; in others, only a word or two. In its privilege logs, Defendant has asserted as the basis for each redaction the attorneyclient privilege and the qualified immunity from discovery under the attorney work-product doctrine. On July 28, 2005, counsel for Plaintiffs sent a letter to counsel for Defendant,

challenging the assertion of privilege to 27 documents. (See Exhibit 4 to Motion to Dismiss). With respect to the assertion of the attorney-client privilege, Plaintiffs' counsel requested the underlying information supporting the assertion of the privilege, specifically:

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. . . the attorney involved, the confidential nature of the communication, the position within the Department of the Navy for each recipient, the authority of each recipient within the Department of the Navy, and all persons to whom the document (or redacted material, as the case may be) has been disclosed, including the time up until the date of your response to this inquiry. With respect to the attorney work-product doctrine, Plaintiffs' counsel again requested the underlying information supporting the assertion of qualified immunity, specifically: . . . the attorney involved, the litigation that was anticipated at the time the document was prepared and disclosed, the litigation issues to which the document (or redacted material, as the case may be) is directed, and all persons to whom the document (or redacted material, as the case may be) has been disclosed, including the time up until the date of your response to this inquiry. On August 2, 2005, Defendant's counsel responded by e-mail and stated that they were reviewing the 27 documents that were being challenged. (See Exhibit 4 to the Motion to Compel). Defendant has never provided any of the requested justifications for either the

attorney-client privilege or attorney work-product doctrine. 2. The Deposition Testimony On April 7, 2005, Plaintiffs deposed Joseph Czech. Mr. Czech is an employee of Wyle Laboratories, the acoustical engineering firm that produced the noise contours for the 1998 Environmental Impact Statement on behalf of the Navy. During the deposition, counsel asked Mr. Czech a series of questions directed to the work he did for the Navy after the final noise report was submitted to the Navy in February 1998. Counsel for Defendant directed Mr. Czech not to answer questions about this work, which was termed by Plaintiffs' counsel for purposes of that deposition, the "mystery project." The stated basis for the instruction not to answer the questions was the attorney-client privilege and the qualified immunity from discovery under the

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attorney work-product doctrine. Defendant's counsel would not even let Mr. Czech testify as to the underlying elements for asserting the attorney-client privilege or attorney work-product doctrine. For example, the following exchange took place: Q. Did you ever have conversations with 13 Mr. Zusman when there was no legal representative 14 present regarding this work? 15 16 A. Yes. Q. How often did you talk to him?

17 A. Oh, in some periods on a daily basis. 18 Q. And generally what was the nature of the 19 work? Was it an investigation? 20 MR. BRYANT: If it's an investigation, 21 you can answer that question. 22 A. It was an investigation.

00067 1 Q. Did it involve the noise contours at NAS 2 Oceana? 3 MR. BRYANT: Do not answer that 4 question. 5 MR. WOLF: What's the privilege?

6 MR. BRYANT: Attorney-client and 7 attorney work product privilege. 8 MR. WOLF: I didn't ask him a 9 communications question. I asked him if his work 10 involved noise contours. So there's no 11 communication with an attorney. 12 13 14 15 16 17 MR. BRYANT: Attorney work product. You're getting into clearly the subject matter of what was done. And this clearly falls within the privilege. I mean, I don't have a problem with forming a background in terms of time and place, that kind of thing. But that's getting within the

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18 substance of what was done and is clearly within 19 the privilege. 20 Q. Was your work for the purpose of 21 litigation? 22 MR. BRYANT: If you know the answer. If

00068 1 you don't know don't say that you do. 2 A. It was for the purposes of potential 3 litigation. 4 Q. Was the potential the lawsuit that we're 5 involved in today that we're here to take this 6 deposition for? 7 MR. BRYANT: Again, if you know or don't 8 know ­ 9 A. There would be know way of me knowing if 10 it was for this particular litigation or not. 11 Q. Do you know it was for potential 12 litigation because someone told you that? 13 MR. BRYANT: I direct you not to answer 14 that. You're getting into communications at this 15 point. 16 Q. How do you know it was for potential 17 litigation? 18 MR. BRYANT: Again, same privilege. 19 Don't answer. (Exhibit 2 to Motion to Compel Discovery, Czech Transcript, p. 66, l.ine 12 ­ p. 67, line 19). On September 19, 2005, Plaintiffs' Counsel deposed Alan Zusman. Mr. Zusman is a civilian employee of the Navy who was the point of contact for the Navy with Wyle Labs during the preparation of the report issued in February 1998. During the deposition, Plaintiffs' Counsel asked about the work performed by Wyle after the February 1998 report, the so-called "mystery

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project" alluded to in Mr. Czech's deposition. Once again, Defendant's Counsel instructed the witness not to answer, asserting the attorney-client privilege and qualified immunity under the attorney work-product doctrine. exchanges: 00017 8 Q. What do you recall, if anything, about 9 what Wyle did in respect of Oceana Naval Air 10 Station or Fentress with regard to what Wyle did 11 after February of 1998 with regard to those two 12 airfields? 13 MR. BRYANT: I'm going to object if we're 14 going to get into privileged communications. We 15 may even want to take a break on this. 16 MR. QUINN: I asked him his recollection. 17 I didn't ask him any communications. 18 MR. BRYANT: Okay. That's fine. The following exchange is an illustrative example of the

19 Q. What do you recall about what Wyle was 20 doing? 21 A. I don't recall specifics because there

00018 1 was, post-EIS there was discussions on ­ 2 MR. BRYANT: That's getting into 3 discussions. I think we may want to take a break 4 on this and make sure we're not getting into an 5 area that's going to be privileged. 6 MR. QUINN: I'm concerned about talking 7 to the witness during a deposition ­ 8 MR. BRYANT: I'm concerned about ­

9 MR. QUINN: -- if it is purely a question 10 of privilege. 11 MR. BRYANT: I'm concerned about him

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12 revealing privileged communications. 13 MR. QUINN: This is communications 14 between a lawyer and Mr. Zusman; is that what we're 15 talking about? 16 MR. BRYANT: You know what privileged 17 communications are. We don't need to get into a 18 discussion about that. 19 MR. QUINN: I've got an idea.

20 MR. BRYANT: We've already gone into this 21 in Joe Czech's deposition. I want to make sure 00019 1 we're not getting into areas that are privileged 2 communications. I want to make sure he understands 3 that so let's take a quick break. 4 MR. QUINN: Okay.

After Defendant's Counsel had a private conversation with Mr. Zusman, they continued: 00020 2 Q. After Wyle issued its final noise report 3 prior to the C/D EIS did Wyle perform any work 4 under your supervision in respect of Fentress or 5 Oceana that you can recall? 6 A. There was continued work by Wyle Labs 7 after the EIS was published, yes. 8 9 10 11 12 13 14 15 16 17 18 19 Q. What was that? A. To the best of my recollection, the commanding officer at NAS Oceana, I'm not sure who it was specifically at the time, but because the noise issues were so paramount and the EIS had concern not only to the Navy but the community at large and in keeping with the AICUZ program looking for ways to mitigate noise the commanding officer wanted to look at various operational alternatives to perhaps see if there was other ways we can reduce noise, however small they may be. And so we had Wyle Labs continued under contract and at some

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20 point after the EIS was published there were 21 various alternatives looked at at the request of 00021 1 the Navy that we had Wyle Labs run some analysis 2 on. 3 Q. Now, put some kind of a timeframe on 4 this. Wyle Labs was also the ­ 5 MR. BRYANT: Objection. We're getting 6 into privileged material now. 7 MR. QUINN: What?

8 MR. BRYANT: We're getting into 9 privileged discussions. 10 11 yet. MR. QUINN: I haven't asked the question

12 MR. BRYANT: I'll let you ask the next 13 question. I just want to caution you. 14 MR. QUINN: Can I learn what privilege 15 we're talking about? 16 MR. BRYANT: Attorney-client privilege, 17 attorney work product. 18 19 MR. QUINN: Which? Or is it both? MR. BRYANT: It's both.

20 Q. After they published the final noise 21 study for the C/D they also became the noise 00022 1 contractor for the EIS that was drafted for the 2 movement or the deployment of the E/F to Oceana; is 3 that correct? 4 A. That's correct.

5 Q. So the period I'm talking about now is 6 between the time that they finished their work on

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7 the C/D and the time that they began the EIS. Is 8 that -- is that what you're talking about now? 9 A. As I ­

10 MR. BRYANT: I'm going to have to object 11 and direct you not to answer these questions 12 because we are getting into discussions that are 13 privileged communications. (Exhibit 3 to Motion to Compel Discovery, Zusman Transcript, p. 17, line 8 ­ p. 19, line 4; p. 20, line 2 ­ p. 22, line 13). In the July 28th letter from Plaintiffs' Counsel to Defendant's Counsel trying to resolve this dispute (Exhibit 4 to Motion to Compel Discovery), Plaintiff also requested the information supporting the assertion of the attorney-client privilege and qualified immunity under the attorney work-product doctrine in Mr. Czech's deposition.1 Defendant's counsel has never responded to the request. ARGUMENT 1. Attorney-Client Privilege and Attorney Work-Product Doctrine At its core, the attorney-client privilege protects confidential communications from a client to an attorney made for the purpose of obtaining legal advice. Sparton Corp. v. United States, 44 Fed. Cl. 557 566 (1999). The privilege applies to individual clients as well as "within a government agency or between the agency and the Department of Justice." Paalan v. United States, 51 Fed. Cl. 738, 753 (2002). "Courts generally have accepted that attorney-client

privilege applies in the governmental context, while expressing apprehension at its pernicious potential in a government top-heavy with lawyers." Jupiter Painting Contracting Co., Inc. v.
Defendant's Counsel stated during Mr. Zusman's deposition that the assertions of attorney-client privilege and qualified immunity from discovery were the same as the assertions in the Czech deposition. Plaintiffs' Counsel assumes an effort to resolve the disputes from the Zusman deposition will meet the same non-response.
1

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United States, 87 F.R.D. 593, 598 (E.D. Pa. 1980). Thus, while government agencies may invoke the attorney-client privilege under appropriate circumstances, the agency must bear the burden of establishing the elements of the privilege, namely: (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 subordinate and (b) in connection with this communication is acting as a lawyer; (3) 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 of law or ii. legal services or iii. assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. Resolution Trust Corp. v. Diamond, 137 F.R.D. 634, 643 (S.D.N.Y. 1991); see also, Alexander v. Federal Bureau of Investigation, 186 F.R.D. 154, 161 (D.D.C. 1999)(setting forth identical elements). Although the Defendant has failed to establish any of the elements necessary to assert the privilege, several points are of particular importance in this case. First, a bare assertion of confidentiality is insufficient to satisfy that element of the privilege. It is not enough for the government to show that the document was written by or to an attorney. Mead Data Central, Inc. v. United States Dept of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977). This is particularly true where the document is circulated to staff persons other than those who initially requested the advice. Coastal States Gas Corp. v. Dept. of Energy, 1979 WL 6202, U.S. Dist. Court for the District of Columbia, Civil No. 76-1173 (August 22, 1979). Moreover, documents

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do not become privileged merely because they are routed through an attorney or an attorney's office. Resolution Trust Corp., 137 F.R.D. at 643. The second, and closely related issue, is the wide circulation of the disputed documents. The asserted privilege for a document or communication may be waived if it has been disclosed. The test of whether a government agency has waived the privilege "is whether the agency is able to demonstrate that the documents, and therefore the confidential information contained therein, were circulated no further than among those members who are authorized to speak or act for the organization in relation to the subject matter of the communication." Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980), citing Mead Data, 566 F.2d at 253 n. 24. The attorney work-product doctrine is embodied in RCFC 26(b)(3), which is virtually identical to its counterpart in the Federal Rules of Civil Procedure. The doctrine protects from disclosure material prepared in anticipation of litigation or for trial and is twofold, depending on the nature of the material being protected. First, as to factual materials, the doctrine provides a qualified immunity from discovery. Such materials may be the subject of proper discovery upon a showing by the party seeking discovery that (1) he has a substantial need for the materials to prepare his case, and (2) he is unable to obtain the substantial equivalent without undue hardship. Second, the mental impressions, conclusions, opinions, or legal theories of an attorney concerning the litigation are privileged from disclosure. Banks v. Office of the Senate SergeantAt-Arms, 222 F.R.D. 1, 3-4 (D.D.C. 2004); Resolution Trust, 137 F.R.D. at 644. Once again, the party asserting the doctrine bears the burden of showing the elements necessary to invoke and maintain the doctrine. RCFC 26(b)(5)("When a party withholds information otherwise

discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the

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documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection."); Resolution Trust, 137 F.R.D. at 644. The first and most fundamental element is that the material must have been prepared in anticipation of specific litigation. Id.; Coastal States, 1979 WL 6202 at p. 4. Not everything that an attorney commits to paper or communicates is work product. Coastal States at p. 5, quoting Kent Corp. v. NLRB, 530 F.2d 612, 623 (5th Cir. 1976)("The executive branch of our government employs an uncountable and ever-growing number of attorneys, and the Act can hardly be understood as protecting everything they put on paper."). In order to meet the standard, the situation must have progressed to the point where the prospect of litigation is specifically identifiable, even if litigation had not already commenced. Coastal States at p. 5. Thus, whether a document was prepared in anticipation of litigation will depend on a number of factors, including the date the document was prepared, the purpose for its preparation, whether it is prepared as a regular business practice. Resolution Trust, 137 F.R.D. at 644 n. 3. 2. Application to the Disputed Documents The Defendant has not established any of the elements necessary to invoke either the attorney-client privilege or attorney work-product doctrine as to the 27 documents in question. Without a description of the communication, it is impossible for the Court (or anyone else) to determine that the communication was made by a client to a lawyer for the purpose of obtaining legal advice, etc., or that it was prepared in anticipation of litigation. Thus, the defendant has failed to establish that the attorney-client privilege or work product doctrine should apply to any disputed document. The un-redacted versions with attachments should be produced.

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Even if the Defendant were to supply such information, it appears that any privilege that may have attached to a document was waived. Almost all of the redacted documents were distributed widely in un-redacted form. By way of example, OCE213659-OCE213662 (hereafter "Test Doc") illustrates this point, although it is by no means the only such document. Test Doc is a string of connected e-mails from various authors to various recipients beginning on December 9, 2001 through and including December 11, 2001. The redactions are all manually made, which indicates that the recipients of each e-mail received all preceding e-mails in the string. The final e-mail in the string at the top of page OCE213659 was delivered to 10 e-mail addresses. Most of the names are known to Plaintiffs' Counsel, and many are attorneys in the Department of Justice or the Navy. Two recipients, however, are not even Navy personnel. Micah Downing and Geral Long are both employees of Wyle Laboratories, a contractor that performed work for the Navy. It is almost certain that neither Mr. Downing nor Mr. Long are authorized to speak on behalf of the Navy regarding the communications. Of the 27 documents at issue, at least 19 fall into the category of documents for which the privilege has been waived by dissemination: OCE213574 OCE213635 OCE213642 OCE213646 OCE213647 OCE213650 OCE213652 OCE213655 OCE213659 OCE213663 OCE213664 OCE213665 OCE213683 OCE213716 OCE213717 OCE213721 OCE213578 OCE213635 OCE213645 OCE213646 OCE213649 OCE213651 OCE213654 OCE213656 OCE213662 OCE213663 OCE213664 OCE213665 OCE213683 OCE213716 OCE213720 OCE213721

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OCE213722 OCE213730 OCE213731

OCE213727 OCE213730 OCE213731

In each case, there are recipients who are unknown to Plaintiffs' counsel, unidentified by the Defendant, and/or not attorneys who have appeared in this litigation for the Defendant. 3. Application to the "Mystery Project" The Defendant also has failed to establish the elements necessary to invoke the attorneyclient privilege and attorney work-product doctrine to the disputed questioning in the Czech and Zusman Depositions. Moreover, the Defendant refused to allow the witnesses to answer

questions that might have disclosed some of the information necessary to evaluate the claimed privileges. Finally, the testimony that Mr. Zusman gave demonstrates that the so-called

"Mystery Project" is not the subject or the attorney-client privilege or the attorney work-product doctrine. If the Court will recall, Mr. Czech is an employee of Wyle Laboratories, a contractor for the Navy. During his deposition, when questioned about the "Mystery Project" after

Defendant's Counsel instructed Mr. Czech in private as to the privileges, Mr. Czech testified that the "Mystery Project" "was for the purposes of potential litigation." (Exhibit 2, p. 68, lines 2-3). When asked how he knew that it was for potential litigation, the Defendant invoked the attorneyclient privilege: 00067 20 Q. Was your work for the purpose of 21 litigation? 22 MR. BRYANT: If you know the answer. If 00068 1 you don't know don't say that you do.

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2 A. It was for the purposes of potential 3 litigation. 4 Q. Was the potential the lawsuit that we're 5 involved in today that we're here to take this 6 deposition for? 7 MR. BRYANT: Again, if you know or don't 8 know ­ 9 A. There would be know way of me knowing if 10 it was for this particular litigation or not. 11 Q. Do you know it was for potential 12 litigation because someone told you that? 13 MR. BRYANT: I direct you not to answer 14 that. You're getting into communications at this 15 point. 16 Q. How do you know it was for potential 17 litigation? 18 MR. BRYANT: Again, same privilege. 19 Don't answer. (Exhibit 3, Czech Deposition, p. 67, line 20 ­ p.68, line 19). During Mr. Zusman's deposition, he explained a little more about the "Mystery Project" and the persons involved. What is abundantly clear is that the "Mystery Project" did not involve a lawyer, so there can be no attorney-client privilege, nor any mental processes or legal theories of an attorney. When asked to describe the "Mystery Project," Mr. Zusman said: 2 Q. After Wyle issued its final noise report 3 prior to the C/D EIS did Wyle perform any work 4 under your supervision in respect of Fentress or 5 Oceana that you can recall? 6 A. There was continued work by Wyle Labs 7 after the EIS was published, yes. 8 Q. What was that?

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9 A. To the best of my recollection, the 10 commanding officer at NAS Oceana, I'm not sure who 11 it was specifically at the time, but because the 12 noise issues were so paramount and the EIS had 13 concern not only to the Navy but the community at 14 large and in keeping with the AICUZ program looking 15 for ways to mitigate noise the commanding officer 16 wanted to look at various operational alternatives 17 to perhaps see if there was other ways we can 18 reduce noise, however small they may be. And so we 19 had Wyle Labs continued under contract and at some 20 point after the EIS was published there were 21 various alternatives looked at at the request of 00021 1 the Navy that we had Wyle Labs run some analysis 2 on. (Exhibit 3, Zusman Deposition, p. 20, line 2 ­ p. 21, line 2). It is clear that the "Mystery Project" was undertaken at the request of the commanding officer of NAS Oceana, not an attorney. Moreover, the communications between the Defendant and Wyle Laboratories, both in giving the work to be performed and reporting the results, did not involve lawyers: 00024 10 Q. Are you the person that designed the 11 project that Wyle ultimately submitted an invoice 12 for? 13 A. I was the person that drafted the scope 14 of work for the project in the contract. 15 Q. Were you the person to whom Wyle reported 16 on whatever they did? 17 18 A. One of, yes. Q. Okay. And to whom else did they report?

19 A. They would have contacted staff at NAS 20 Oceana who was also engaged in doing this. Beyond 21 that, I don't know who else they would have talked 00025 1 to.

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2 Q. When you say staff at NAS Oceana who was 3 that? 4 A. Specific names I can't recall. 5 Functionally it would have been the commanding 6 officer, the air ops officer, air traffic control 7 officer, and community plans and liaison officer. 8 Q. Did you talk to Captain Zobel about this 9 project? 10 A. I did. 11 Q. Did you talk to any of the individuals 12 who held the titles that you just named? 13 A. At one point or another, yes.

14 Q. What names do you remember were those 15 people? 16 A. There was a gentleman Robert Rountree, 17 there was a Mr. Ray Ferenzi. Those are the only 18 two I can recall at the moment. 19 Q. Okay. Did you talk to anybody else about 20 the scope of work or about its output when it 21 ultimately finished? 00026 1 A. Staff at the Naval Facilities Engineering 2 Command Atlantic Division. 3 4 Q. Who? A. Mr. Dan Cecchini.

(Exhibit 3, Zusman Deposition, p. 24, line 10 ­ p.26, line 4). Not one communication of either the assignment or the work product involves a lawyer. Neither Mr. Zusman, nor Captain Zobel, nor Mr. Firenze, nor Mr. Rountree, nor Mr. Cecchini, is a lawyer. There is simply no basis for the Defendant to assert either the attorney-client privilege or the attorney work-product doctrine.

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CONCLUSION As the party asserting the privileges, the Defendant bears the burden of demonstrating that the asserted privileges apply. The Defendant has failed to satisfy the requirements to assert either the attorney-client privilege or attorney work-product doctrine regarding the disputed documents or the "Mystery Project" that was the subject of questioning at the Czech and Zusman depositions. Moreover, the limited testimony that was taken indicates that inquiry into the "Mystery Project" does not infringe either the attorney-client privilege or the attorney workproduct doctrine. Accordingly, the motion to compel discovery should be granted. Dated this 24th day of October 2005. Respectfully submitted,

/s/ Jack E. Ferrebee Jack E. Ferrebee Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 [email protected] Counsel of Record for Plaintiffs

Of Counsel: Kieron F. Quinn Martin E. Wolf Quinn, Gordon & Wolf, Chtd. 102 W. Pennsylvania Avenue Suite 402 Towson, Maryland 21204 (410) 825-2300 [email protected] [email protected]

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Charles R. Hofheimer Kristen D. Hofheimer Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 [email protected] [email protected] Thomas Shuttleworth Stephen C. Swain Lawrence Woodward Shuttleworth, Ruloff, Giordano & Swain 4525 South Blvd., Suite 300 Virginia Beach, Virginia 23452 (757) 671-6000 [email protected] [email protected] [email protected]

CERTIFICATION OF GOOD FAITH I HEREBY CERTIFY that I contacted counsel for the Defendant, Steven Bryant, on July 28, 2005, as a good-faith attempt to resolve this discovery dispute without court action. After acknowledging that the letter was received and that the matter was being reviewed, the Defendant made no further response to the good-faith attempt to resolve this dispute. Copies of the communications between counsel are attached as Exhibit 4.

/s/ Martin E. Wolf Martin E. Wolf

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