See ASPCA v. Ringling Bros. and Barnum & Bailey Circus, 233 F.R.D. 209 (D.D.C. 2006)
This case for declaratory and injunctive relief under the Endangered Species Act, based on defendants’ allegedly unlawful handling of Asian elephants, generated a discovery dispute involving the assertion of privilege claims and the operation of Rule 26(b)(5) in the context of documents withheld by a party from production pending decision of an unresolved responsiveness objection.
The Nature of the Discovery Dispute:"Control" and Waiver Issues
Briefly, in response to plaintiffs’ document requests, defendants lodged numerous general and specific objections, and produced two boxes of responsive documents along with a privilege log identifying five documents. Plaintiffs took issue with the adequacy of defendants’ response. Following a "meet-and-confer," at which defendants revealed they had withheld from production, as nonresponsive, certain documents gathered by counsel (for trial cross-examination purposes) on the basis that they were not within defendants’"possession, custody or control," and otherwise protected against disclosure as work-product, plaintiffs filed a motion to compel. They argued that (a) any documents held by defendants’ counsel were, as a matter of law, in defendants’"possession, custody or control," and, further, (b) to the extent the documents were work product, defendants had waived the protection by not including them on the privilege log filed in connection with their original discovery response.
Application of United States v. Philip Morris Resolves Waiver Issue
Significantly, the work-product waiver argument was ultimately decided on the basis of D.C. Circuit precedent that Chadbourne & Parke LLP won on interlocutory appeal in the course of our engagement in United States v. Philip Morris USA, Inc. (C.A. 99-CV-2496) -- a closely watched civil racketeering case that has been pending decision since the nine-month bench trial ended in June 2005.
Making quick work of defendants’"possession, custody or control" argument, the Magistrate Judge held that "[c]ontrol includes documents that a party has the legal right to obtain on demand" and "[b]ecause a client has the right, and the ready ability, to obtain copies of documents gathered or created by its attorneys pursuant to their representation of that client, such documents are clearly within the client’s control . . . Accordingly, defendants cannot object to the production of documents assembled by their counsel . . . on the ground that they were not in defendants’ control." Id. at 212 (citations omitted). Since the documents had been gathered by trial counsel for impeachment purposes at trial, however, the court held that they "constitute[d] traditional work product," which teed up plaintiffs’waiver argument. Id.
Ruling for defendants, the court held that since the obligation to submit a privilege log is triggered only when one withholds "otherwise discoverable" documents according to Rule 26(b)(5), the privileged documents sought by plaintiff were not "yet ‘otherwise discoverable’ within the meaning" of the rule given that defendants’ responsiveness objection had not been decided to that point. Id. at 212-213. In reaching this conclusion, the court cited United States v. Philip Morris, Inc., holding:
[I]f a party’s pending objections apply to allegedly privileged documents, the party need not log the document until the court rules on its objections. [United States v.] Philip Morris, 314 F.3d [612] at 621 [D.C. Cir. 2003)]. On the other hand, if the court determines that the objection does not cover the allegedly privileged document, or that the objection was not made in good faith as Rule 26(g) requires . . . the court may then decide whether the party should be deemed to have waived the privilege. Waiver is not automatic, particularly if the party reasonably believed that its objections applied to the document. United States v. Philip Morris, Inc., 347 F.3d 951, 954 (D.C. Cir. 2003) (emphasis added).
Id. at 213.
Finding "no evidence that defendants believed anything other than that their objection was justified," the court held that they were not required to assert any privilege or "obligated to list the documents on any privilege log," absent a ruling on their responsiveness objections. Id. at 213. Thus, there was no waiver. It declined, however, to require defendants to include the withheld "impeachment" documents on a privilege log -- since even that limited disclosure would reveal counsel’s work product. Moreover, it added, there was no need for a privilege log in this instance, because (a) the documents were publicly available, and (b) defendants had "already provided plaintiffs with enough information to enable them to assess the applicability of the privilege," which (in the event) plaintiffs had not challenged. Id.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
