Ernest FLAGG, as Next Friend of Jonathan Bond; Taris Jackson, as Next Friend of Ashly Jackson; and Brian Greene, as Next Friend of India Bond, Plaintiffs, v. CITY OF DETROIT and Kwame M. Kilpatrick, Defendants Case No. 05-74253 United States District Court, E.D. Michigan, Southern Division Signed October 15, 2010 Counsel Ashley A. Coneff, Howard Y. Lederman, Norman Yatooma & Associates, P.C., Birmingham, MI, Kirkland W. Garey, Norman A. Yatooma, Norman Yatooma and Associates, P.C., Bloomfield Hills, MI, for Plaintiffs. John A. Schapka, Macomb County Corporation Counsel Office, Mt. Clemens, MI, James C. Thomas, O'Reilly Rancilio P.C., Krystal A. Crittendon, Detroit City Law Department, Michael C. Naughton, James C. Thomas, P.C., Detroit, MI, for Defendants. Rosen, Gerald E., United States District Judge ORDER GRANTING PLAINTIFFS' MOTION TO COMPEL TESTIMONY OF DEPONENT RUTH CARTER *1 By motion filed on September 3, 2010, Plaintiffs seek an order compelling non-party witness Ruth Carter to provide responses to certain questions that defense counsel instructed her not to answer at her recent deposition. Neither Defendant has responded to this motion, and the time for doing so has passed. SeeLocal Rule 7.1(e)(2)(B), Eastern District of Michigan. In light of this lack of opposition, and for the additional reasons set forth below, the Court finds that Plaintiffs' motion should be granted. During the course of Judge Carter's August 6, 2010 deposition, counsel for Defendant Kwame Kilpatrick invoked the attorney/client privilege on several occasions, instructing the witness not to answer a number of questions that purportedly implicated this privilege. Specifically, in each instance where Plaintiffs' counsel sought to ask questions about text messages apparently exchanged between Judge Carter—who, at the time of these communications, served as director of the City of Detroit Law Department—and then-Mayor of Detroit Kwame Kilpatrick, Defendant Kilpatrick's counsel invoked the attorney/client privilege and instructed Judge Carter not to answer. No separate record was made with regard to these assertions of privilege, nor was there any effort to explore the circumstances surrounding the communications at issue or to otherwise identify a factual predicate for a claim of privilege. Under these circumstances, the Court concludes on a number of grounds that Defendant Kilpatrick and his counsel have failed to establish a basis for the claims of attorney/client privilege made during Judge Carter's deposition. A party who claims this privilege must show a number of elements, including (i) that legal advice was sought from a professional legal advisor acting in that capacity, (ii) that the communication at issue related to this purpose of securing legal advice, and (iii) that the communication was made in confidence. See Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir. 1998); see also United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999) (confirming that “[t]he burden of establishing the existence of the privilege rests with the person asserting it”). Although the Sixth Circuit has held that a municipality may invoke the attorney/client privilege in civil litigation, it has “cautioned that applying the privilege broadly to governmental entities r[u]n[s] counter to the strong public interest in open and honest government.” Ross v. City of Memphis, 423 F.3d 596, 600-03 (6th Cir. 2005) (internal quotation marks and citation omitted). Moreover, the court emphasized that the municipality itself, and not individual municipal officials, generally is viewed as the client and holds the privilege as to communications between a government employee and the municipality's counsel. Ross, 423 F.3d at 603, 605. Applying these principles here, it certainly cannot be said that Defendant Kilpatrick has established the elements of a claim of attorney/client privilege as to the communications between him and Judge Carter that gave rise to his counsel's objections at Judge Carter's deposition. In some of the text messages that drew assertions of privilege, Judge Carter and Defendant Kilpatrick were merely addressing the “news of the day,” with no apparent effort by Defendant Kilpatrick to seek legal advice and no attempt by Judge Carter to provide it. As one example, Plaintiffs' counsel sought to question Judge Carter about a text message she evidently sent to Defendant Kilpatrick in which she informed him about a Freedom of Information Act (“FOIA”) request made by a newspaper reporter to the City of Detroit and promised to “keep [him] posted.” (Plaintiffs' Motion, Ex. 1, Carter Dep. at 56-57.) Nothing in the record suggests that Defendant Kilpatrick would have been involved in formulating the City's response to this FOIA request, much less that he sought legal advice from Judge Carter arising from this request. Rather, so far as the record reveals, Judge Carter presumably meant through this communication to inform Defendant Kilpatrick about a matter of public knowledge—namely, a FOIA request made by the media to the City. *2 In other instances, the (quite limited) context provided in Judge Carter's deposition suggests that she was being called upon for political or public relations advice, rather than acting in a legal capacity. SeePritchard v. County of Erie (In re County of Erie), 473 F.3d 413, 421 (2d Cir. 2007) (“When an attorney is consulted in a capacity other than as a lawyer, as (for example) a policy advisor, media expert, business consultant, banker, referee or friend, that consultation is not privileged.”). In one text message that elicited a claim of privilege, for example, Judge Carter informed Defendant Kilpatrick about a third party's apparent plan to run for a state court position, and she expressed her opposition to this candidate and urged Defendant Kilpatrick to withhold his support. (See id. at 25.) Similarly, counsel for Defendant Kilpatrick invoked the attorney/client privilege as to communications he exchanged with Judge Carter concerning (i) the possible benefits of Attorney General Mike Cox, as opposed to others, conducting an investigation into the rumored Manoogian Mansion party and alleged misconduct by members of the former mayor's Executive Protection Unit, (ii) the progress of this investigation, and (iii) the Attorney General's announcement of the outcome of this investigation. (See, e.g., id. at 123, 127-28, 137-39, 194-95, 197-98.) While Judge Carter perhaps could have played a role as legal adviser to Defendant Kilpatrick to the extent that he was called upon to provide information or answer questions during the Attorney General's investigation, communications concerning the progress or public perception of this investigation presumably did not implicate this role. Indeed, it is noteworthy that when Judge Carter was asked about communications she exchanged with others, and not Defendant Kilpatrick, on the very same subject matter, she was allowed to answer these questions without any claims of privilege being interposed. (See, e.g., id.at 129-30, 140-41, 152-58, 164-65, 199-200.)[1] Apart from the lack of evidence that any of the objected-to communications between Judge Carter and Defendant Kilpatrick were related in some way to a request for legal advice, there are other apparent defects in Defendant Kilpatrick's claims of privilege. First, most or all of the communications at issue were sent via a text messaging system provided by the City of Detroit to its employees. Such communications seemingly lacked the requisite expectation of confidentiality to qualify as privileged, in light of the City policy (issued by then-Mayor Kilpatrick) informing employees that their electronic communications were “not considered ... as private in nature, regardless of the level of security on the communication,” and that these communications generally were “subject to disclosure whether the communication is routine or intended to be confidential.” (Plaintiffs' Motion, Ex. 3, City Directive at 1-2.) Moreover, and as noted earlier, any attorney/client privilege covering communications between Judge Carter (as counsel for the City of Detroit) and City employees belongs to the City as Judge Carter's client, and must be asserted by the City rather than individual municipal officials. See Ross, 423 F.3d at 605. Yet, counsel for the City elected not to assert any such privilege during Judge Carter's deposition. Finally, even if the communications that drew objections from Defendant Kilpatrick's counsel met the standards for protection under the attorney/client privilege, any such privilege has surely been waived. First, the text messages about which Plaintiffs' counsel sought to question Judge Carter have all been publicly disclosed in the course of Michigan court proceedings. As Plaintiffs point out, if a privileged communication is involuntarily disclosed, the privileged status of the communication is lost “if the privilege holder fails to pursue all reasonable means of preserving the confidentiality of the privileged matter.” United States v. de la Jara, 973 F.2d 746, 750 (9th Cir. 1992). It does not appear that Defendant Kilpatrick exhausted all available legal remedies in an effort to prevent the public disclosure of the communications at issue. Moreover, and as observed earlier, Judge Carter was permitted to testify without objection on the very same subject matter addressed in her purportedly privileged communications with Defendant Kilpatrick, so long as she was asked about communications to which Defendant Kilpatrick was not a party. Likewise, much of this same subject matter—e.g., the circumstances surrounding the dismissal of Detroit Police Department Deputy Chief Gary Brown, and the Attorney General's investigation of the rumored Manoogian Mansion party—has been addressed in the deposition testimony of Defendant Kilpatrick and other witnesses in this case. This testimony touching upon the same subject matter operates as a waiver of any claim of privilege as to the communications between Defendant Kilpatrick and Judge Carter concerning these same matters. See Fed. R. Evid. 502(a); see also John Doe Co. v. United States, 350 F.3d 299, 302 (2d Cir. 2003). *3 This leaves only the few instances in which counsel for the City invoked the “deliberative process” privilege in instructing Judge Carter not to answer particular questions. Again, no effort was made to establish a predicate for this assertion of privilege, and the City has not availed itself of the opportunity to establish the elements of this privilege by responding to Plaintiffs' motion. In addition, the questions that elicited these claims of privilege concerned matters—namely, the dismissal of Deputy Chief Brown and the litigation that followed—about which others (most notably, Defendant Kilpatrick and Christine Beatty) have already testified, so that any claim of confidentiality in the City's deliberations on these matters has surely been forfeited. Accordingly, the City's assertions of a deliberative process privilege, like Defendant Kilpatrick's appeals to attorney/client privilege, cannot be sustained under the record before this Court. For these reasons, NOW, THEREFORE, IT IS HEREBY ORDERED that Plaintiffs' September 3, 2010 motion to compel the testimony of deponent Ruth Carter (docket #439) is GRANTED. IT IS FURTHER ORDERED that the parties and their counsel shall promptly arrange for and convene the continued deposition of Judge Carter, with this continued deposition to be conducted no later than Monday, November 1, 2010. At this continued deposition, Plaintiffs and their counsel may explore those matters about which Judge Carter was instructed not to testify at her earlier deposition, as well as any matters reasonably related to and arising from these permissible lines of inquiry. Footnotes [1] The Court recognizes, of course, that Defendant Kilpatrick could not invoke the attorney/client privilege as to communications between Judge Carter and other City employees—although, notably, his counsel did so at one point in Judge Carter's deposition. (See id. at 8384.) Nonetheless, counsel for the City of Detroit could have asserted this privilege, if counsel believed that the questioning by Plaintiffs' counsel implicated communications in which City employees were seeking legal advice from the head of the City's law department. Tellingly, counsel for the City made no such objection. Likewise, Judge Carter was represented by counsel at her deposition, and her attorney neither asserted any privilege nor instructed her client not to answer any questions.