Hamama v.Adducci
Hamama v.Adducci
2018 WL 11361029 (E.D. Mich. 2018)
October 25, 2018
Goldsmith, Mark A., United States District Judge
Summary
The Court ordered that all future submissions of documents for the Court's resolution of discovery disputes related to the attorney-client privilege and the work product doctrine must bear some form of page identification system, such as Bates stamping, and that the Government must provide a list of attorneys and their respective agencies. This is to ensure that the Electronically Stored Information is properly identified and can be used in the Court's resolution of discovery disputes.
Additional Decisions
USAMA J. HAMAMA, et al., Petitioners,
v.
REBECCA ADDUCCI, et al., Respondents
v.
REBECCA ADDUCCI, et al., Respondents
Case No. 17-cv-11910
United States District Court, E.D. Michigan, Southern Division
Signed October 25, 2018
Counsel
Bonsitu A. Kitaba, Wendolyn W. Richards, Miller, Canfield, Daniel S. Korobkin, American Civil Liberties Union Fund of Michigan, William W. Swor, Detroit, MI, Kimberly L. Scott, Miller, Canfield, Margo Schlanger, Ann Arbor, MI, Lee Gelernt, American Civil Liberties Union, New York, NY, Miriam J. Aukerman, American Civil Liberties Union of Michigan West Michigan Regional Office, Grand Rapids, MI, Nadine Yousif, Code Legal Aid, Inc., Madison Heights, MI, Nora Youkhana, Fieger, Fieger, Kenney & Harrington, Southfield, MI, Susan E. Reed, Michigan Immigrant Rights Center, Kalamazoo, MI, David Brian Johnson, South Haven, MI, Maria Martinez Sanchez, American Civil Liberties Union of New Mexico, Albuquerque, NM, for Petitioner Usama J. Hamama.Bonsitu A. Kitaba, Wendolyn W. Richards, Miller, Canfield, Daniel S. Korobkin, American Civil Liberties Union Fund of Michigan, Detroit, MI, Kimberly L. Scott, Miller, Canfield, Margo Schlanger, Ann Arbor, MI, Miriam J. Aukerman, American Civil Liberties Union of Michigan West Michigan Regional Office, Grand Rapids, MI, Nadine Yousif, Code Legal Aid, Inc., Madison Heights, MI, Nora Youkhana, Fieger, Fieger, Kenney & Harrington, Southfield, MI, Susan E. Reed, Michigan Immigrant Rights Center, Kalamazoo, MI, David Brian Johnson, South Haven, MI, Maria Martinez Sanchez, American Civil Liberties Union of New Mexico, Albuquerque, NM, for Petitioners Atheer F. Ali, Ali Al-Dilami, Habil Nissan, Jihan Asker, Moayad Jalal Barash, Sami Ismael Al-Issawi.
Kimberly L. Scott, Miller, Canfield, Ann Arbor, MI, Maria Martinez Sanchez, American Civil Liberties Union of New Mexico, Albuquerque, NM, Wendolyn W. Richards, Miller, Canfield, Detroit, MI, for Petitioner Abdulkuder Hashem Al-Shimmary.
Daniel S. Korobkin, American Civil Liberties Union Fund of Michigan, Wendolyn W. Richards, Miller, Canfield, Detroit, MI, David Brian Johnson, South Haven, MI, Kimberly L. Scott, Miller, Canfield, Ann Arbor, MI, Maria Martinez Sanchez, American Civil Liberties Union of New Mexico, Albuquerque, NM, for Petitioners Qassim Hashem Al-Saedy, Abbas Oda Manshad Al-Sokaini.
Daniel S. Korobkin, American Civil Liberties Union Fund of Michigan, Wendolyn W. Richards, Miller, Canfield, Detroit, MI, David Brian Johnson, South Haven, MI, Kimberly L. Scott, Miller, Canfield, Ann Arbor, MI, for Petitioners Mukhlis Murad, Adel Shaba, Kamiran Taymour, Jony Jarjiss, Jami Derywosh, Anwar Hamad.
August E. Flentje, Cara E. Alsterberg, William C. Silvis, United States Department of Justice, Civil Division, Christina Parascandola, Joseph Darrow, Michael Celone, Nicole N. Murley, Office of Immigration Litigation - District Court Section, U.S. Department of Justice, Civil Division, Washington, DC, Jennifer L. Newby, U.S. Attorney, Defensive Litigation, Detroit, MI, Sarah S. Wilson, U.S. Attorney's Office, Birmingham, AL, for Respondents Thomas Homan, John F. Kelly, Rebecca Adducci.
Cara E. Alsterberg, William C. Silvis, United States Department of Justice, Civil Division, Christina Parascandola, Joseph Darrow, Michael Celone, Nicole N. Murley, Office of Immigration Litigation - District Court Section, U.S. Department of Justice, Civil Division, Washington, DC, Sarah S. Wilson, U.S. Attorney's Office, Birmingham, AL, for Respondents Jefferson Beauregard Sessions, III, Elaine C. Duke.
Goldsmith, Mark A., United States District Judge
OPINION & ORDER SUSTAINING RESPONDENTS’ ASSERTIONS OF THE ATTORNEY-CLIENT PRIVILEGE AND THE WORK PRODUCT DOCTRINE
*1 On September 21, 2018, this Court issued an order which addressed the process for resolving discovery disputes based on the assertion of the attorney-client privilege and work product doctrine. See 9/21/2018 Order (Dkt. 401). The process allows Petitioners, after receiving Respondents’ (“the Government”) documents and accompanying privilege log, to challenge attorney-client privilege and work product doctrine assertions. If challenges are made, the Government is to submit the challenged documents (bearing some form of page identification system) to the Court for an in camera review, along with a memorandum explaining its basis for asserting the privilege. In accordance with this process, the Government, after being notified that Petitioners were challenging its assertion of attorney-client privilege and the work product doctrine over certain documents produced in discovery, submitted to the Court the challenged documents on October 17, 2018. The Government also provided a memorandum explaining its privilege assertions (Dkt. 447), and Petitioners submitted a separate statement contesting the assertions (Dkt. 448). The Court has since reviewed the documents and, for the reasons that follow, sustains the Government's privilege assertions.
As an initial matter, once again, the documents submitted to the Court for in camera review lack any identifiable system of Bates stamping on the documents themselves. The documents were submitted to the Court electronically as 58 separate .pdf files. The file-naming convention includes Bates numbers, but the numbers do not correspond to the number of pages within each document. Therefore, the Court will address the documents by file name. Additionally, there is no explanation as to which individuals in the email threads are attorneys and for which agency they work. The Court was able to glean the information from signature blocks and other sources; however, moving forward a list of attorneys and their respective agency affiliation must be provided to the Court for any in camera review based on the attorney-client privilege and work product doctrine. Finally, with respect to documents 54 through 58, no privilege assertion is explained in the privilege log. Documents 54 and 55 contain appropriate internal redactions that explain which privileges apply; document 56 contains no redactions, but it is clearly covered by the attorney-client privilege; document 57 contains deliberative process privilege redactions, though it is clearly work product; and document 58 contains no redactions, but overlaps with appropriate redactions in other documents such that the Court can make an appropriate determination.
I. ANALYSIS
A. Attorney-Client Privilege and Work Product Doctrine
Federal Rule of Civil Procedure 26 provides for the discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). In a federal question case, such as this one, the federal common law governs issues of privilege. Reed v. Baxter, 134 F.3d 351, 355 (6th Cir. 1998) (citing Fed. R. Evid. 501). It is well established that “[t]he attorney-client privilege ‘is the oldest of the privileges for confidential communications known to the common law.’ ” United States v. Jicarilla Apache Nation, 564 U.S. 162, 169 (2011) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). “The attorney-client privilege only precludes disclosure of communications between attorney and client and does not protect against disclosure of the facts underlying the communication.” Humphreys, Hutcheson & Moseley v. Donovan, 755 F.2d 1211, 1219 (6th Cir. 1985) (citing Upjohn Co., 449 U.S. at 395) (emphasis in original). The Sixth Circuit has recognized that government entities may assert the attorney-client privilege in the context of civil litigation. Ross v. City of Memphis, 423 F.3d 596, 598, 606 (6th Cir. 2005).
*2 The elements of the privilege are:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.
Reed, 134 F.3d at 355-356. The privilege is to be narrowly construed because it “reduces the amount of information discoverable during the course of a lawsuit.” Ross, 423 F.3d at 600 (quotation marks omitted). Nevertheless, “its scope must be determined in light of its purpose of increasing full and frank communication.” Id. “The burden of establishing the existence of the privilege rests with the person asserting it.” United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999).
The attorney-client privilege is generally waived by a client's voluntary disclosure of private communications to third parties. Id. However, the privilege remains applicable where parties are represented by separate attorneys but share “an identical legal interest with respect to the subject matter of the communication,” such that the common-interest doctrine would apply. Ford Motor Co. v. Mich. Consol. Gas Co., No. 08-CV-13503, 2013 WL 5435184, at *5 (E.D. Mich. Sept. 27, 2013) (quotation marks and citation omitted). The doctrine is “an extension of the attorney-client privilege [that applies] to confidential communications shared between co-defendants which are part of an ongoing and joint effort to set up a common defense strategy.” United States v. Moss, 9 F.3d 543, 550 (6th Cir. 1993).
The work product doctrine “is distinct from and broader than the attorney-client privilege.” Williams & Connolly v. United States (In re Antitrust Grand Jury), 805 F.2d 155, 163 (6th Cir. 1986) (quoting United States v. Nobles, 422 U.S. 225, 238 n.11 (1975)). The doctrine is designed to allow an attorney to “assemble information, sift what he [or she] considers to be the relevant from the irrelevant facts, prepare his [or her] legal theories and plan his [or her] strategy without undue and needless interference ... to promote justice and to protect [his or her] clients’ interests.” In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 294 (6th Cir. 2002) (citing Hickman v. Taylor, 329 U.S. 495, 510 (1947)). So-called “fact” work product, the “written or oral information transmitted to the attorney and recorded as conveyed by the client,” In re Antitrust Grand Jury, 805 F.2d at 163, may be obtained upon a showing of substantial need and inability to otherwise obtain without material hardship. See Toledo Edison Co. v. G.A. Technologies, Inc., 847 F.2d 335, 339–40 (6th Cir. 1988). However, absent waiver, a party may not obtain the “opinion” work product of his adversary; i.e., “any material reflecting the attorney's mental impressions, opinions, conclusions, judgments, or legal theories.” In re Antitrust Grand Jury, 805 F.2d at 163–64 (citations omitted).
*3 The Government asserts that the challenged documents are protected either by the attorney-client privilege or the work product doctrine. However, Petitioners make four arguments in response to the Government's assertion of privilege: (i) factual information is not protected by the attorney-client privilege; (ii) communications are not protected if they fall within the crime-fraud exception; (iii) the Government waived its privileges when it shared information with outside agencies; and (iv) the Government has not demonstrated why certain documents are entitled to claw back. The Court will address each argument in turn.
1. Protection of factual information
Petitioners are correct that the attorney-client privilege does not necessarily protect against disclosure of the facts underlying a communication made between an attorney and his or her client. With respect to file 25_ICE-0296035, ICE-0301632, the Government has asserted the attorney-client privilege only. The factual information redacted under the heading “BACKGROUND” is potentially not protected by the privilege. However, based on the review of document 25 and the rest of the documents, the Court finds that there are no underlying facts within communications that should be excluded from the Government's privilege assertion.
2. Crime-Fraud exception
Petitioners next argue that a number of the challenged documents relate to declarations that they maintain represent a fraud on the Court. They further support their assertion by referring the Court to their pending motion for sanctions against the Government (Dkt. 381). The Government argues that Petitioners’ accusations are unsupported and they cannot make a prima facie showing of fraud. “The crime-fraud exception allows a party to access the contents of privileged communications when an attorney-client relationship is used to advance a crime or perpetrate fraud.” Stone Surgical, LLC v. Stryker Corp., 858 F.3d 383, 391 (6th Cir. 2017). The party seeking to use the crime-fraud exception must first “make a prima facie showing that a sufficiently serious crime or fraud occurred to defeat the privilege; second, [the party] must establish some relationship between the communication at issue and the prima facie violation.” In re Antitrust Grand Jury, 805 F.2d at 164. “To satisfy its prima facie showing, the evidence presented by the [party] must be such that ‘a prudent person [would] have a reasonable basis to suspect the perpetration of a crime or fraud.’ ” United States v. Collis, 128 F.3d 313, 321 (6th Cir. 1997).
Whether the crime-fraud exception applies to the challenged documents is a matter better addressed at a later date. In order to resolve this matter, the Court would need to turn to Petitioners’ pending motion for sanctions. However, to do so would be premature in light of the hearing on the motion scheduled to begin on October 23, 2018. Petitioners may reassert their argument with regard to the crime-fraud exception after the hearing on the motion for sanctions.
3. Disclosure to Other Agencies
Petitioners argue that the Government has waived the attorney-client privilege with respect to documents disclosed to other agencies, for example the Department of State. Petitioners do not cite any authority for such a proposition, which is not surprising given the dearth of caselaw on the issue. The Government has not had an opportunity to address this argument.
In United States v. American Telephone & Telegraph Co., 86 F.R.D. 603 (D.D.C. 1979), the district court, in establishing guidelines for a special master, defined “client” to include the following:
In the case of a government department or agency, the department or agency that employed the attorney. The privilege also applies when an attorney provides legal advice or assistance to another agency if the advice or assistance is on a basis that is confidential among the clients and relates to a matter in which the agencies have a substantial identity of legal interest.
*4 Id. at 615. The court reasoned that for the purpose of the attorney-client privilege, the government is a “cluster” of clients. Id. at 17. The court explained that “if the two agencies have a substantial identity of legal interest in a particular matter, the attorneys for each agency can be treated as representing both agencies jointly; if the agencies are in conflict, communications between counsel for the agencies are not within the attorney-client privilege.” Id. Similarly, in Modesto Irrigation Dist. v. Gutierrez, the court rejected the contention that multiple agencies of the federal government must be considered a single client under the “unitary-executive” theory for the purposes of the attorney-client privilege. No. 1:06-00453, 2007 WL 763370, at *15 (E.D. Cal. Mar. 9, 2007); but see Menasha Corp. v. U.S. Dep't of Justice, 707 F.3d 846, 850 (7th Cir. 2013) (finding that 440 documents were protected by the work product doctrine even though Justice Department lawyers had differing interests with regard to a proposed CERLA consent decree). Nonetheless, the Modesto court found that the common interest doctrine applied because the various agencies “shared the common goal of reaching a mutually acceptable policy decision that would withstand legal challenge.” Id. at *18.
Here, the challenged documents were sent by individuals within ICE to attorneys in the State Department, including those at the embassy in Baghdad. The embassy in Baghdad has been intimately involved in the Government's repatriation efforts and with diplomatic negotiations with Iraq. In this sense, ICE and the State Department's interests are aligned and they share a common interest in the outcome of this litigation. The Government stands in a different position than other litigants. “Congress has decreed that the Government must represent more than one interest. When the Government performs such duties it does not by that reason alone compromise its obligation to any of the interests involved.” Nevada v. United States, 463 U.S. 110, 135 (1983) (quoting Hansberry v. Lee, 311 U.S. 32, 44 (1940)). Accordingly, the attorney-client privilege was not waived by communicating with attorneys at the State Department.
4. Claw Back
Finally, Petitioners take issue with the Government's claw back of certain challenged documents under the protective order without providing a privilege log or proffering a reason to do so. They say that these documents do not appear on any privilege log. The Government has not had a chance to address this argument. Nonetheless, Petitioners’ position is sound. Indeed, the Federal Rules of Civil Procedure require as much. See Fed. R. Civ. P. 34(2)(C) (“An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.”). The Government has objected to the production of certain documents, by virtue of clawing them back, without providing an explanation to Petitioners as required under Rule 34. Accordingly, the Government must provide an appropriate privilege log to Petitioners explaining what documents were clawed back under the protective order and the bases for doing so.
II. CONCLUSION
For the foregoing reasons, the Court SUSTAINS the Government's assertion of the attorney-client privilege and work product doctrine as to all of the redactions in the challenged documents. However, with respect to documents 54 to 58, redactions consistent with other documents in this set must be made and the documents produced to Petitioners. To the extent any of the documents in this set have not already been produced to Petitioners with redactions, the Government must do so by 10:00 a.m. on October 30, 2018. The Government also must provide a privilege log with respect to any clawed back documents by 10:00 a.m. on October 30, 2018.
Regarding any future submission of documents for the Court's resolution of discovery disputes related to the attorney-client privilege and the work product doctrine, the documents must bear some form of page identification system, such as Bates stamping, and the Government must provide a list of attorneys and their respective agencies.
*5 SO ORDERED.