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United States District Court finds that memorandum drafted before the inception of litigation fell within the work product protection

Parker v. U.S. Dep't of Justice Exec. Office for U.S. Att'ys
___ F.Supp.3d ___ (D. D.C. Jan. 21, 2015)

by Wayne C. Heavener, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In Parker v. United States Department of Justice Executive Office for the United States Attorneys, the United States District Court for the District of Columbia examined the scope of the attorney client privilege and work product doctrine in the context of a Freedom of Information Act ("FOIA") request. Writing the opinion of the Court, Judge Amy Berman Jackson held that a memorandum between assistant United States attorneys fell within the attorney-client privilege and work product doctrine, even though no suit had been filed when the requested document had been drafted. Because the requested document fell within the work product doctrine, it likewise fell within a FOIA exemption that permits an agency to deny disclosure for "memorandums (sic) or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552 (b) (5).

This case stems from a FOIA request filed by Lonnie Parker ("Plaintiff") to the United States Department of Justice Executive Office for United States Attorneys ("Defendant") seeking documents related to the unauthorized practice of law by former Assistant United States Attorney Lesa Gail Bridges Jackson. Plaintiff's FOIA request sought, inter alia, documents pertaining to disciplinary actions taken against Ms. Jackson. Defendant did not produce any documents in response to Plaintiff's FOIA request. Over the course of four (4) years, the parties engaged in litigation regarding the disclosure of documents under Plaintiff's FOIA request. The only remaining issue between the parties was whether a particular memorandum, called "Document 2," was amendable to disclosure. Document 2 is a type written memorandum that was located in a file with the Ms. Jackson's name on the folder. Document 2 was exchanged between assistant Unites States attorneys, and discussed documents involved in the discipline of Ms. Jackson. With respect to Document 2, Defendant denied disclosure pursuant to Exception 5 under FOIA, which permits agencies to withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552 (b) (5). Specifically, Defendant argued that Document 2 was protected by the attorney-client and work product privileges.

The Court held that Document 2 fell within the scope of the attorney-client privilege and work product protection. The Court noted that, in order to prevail in a FOIA action, an agency must show that materials withheld from disclosure fall within a FOIA exemption. Exemption 5 protects from disclosure documents that fall within the ambit of the attorney-client and work product privileges. The Court found that the attorney-client privilege protects confidential communications from clients to their attorneys made for the purpose of securing legal advice or services. The Court also found that the attorney work product doctrine protects materials that reflect the mental processes of the attorney. In this case, the Court held that Document 2 fell within the scope of both privileges. In the context of the attorney-client privilege, the Court held that the agency, itself, was the "client," and the agency's lawyers were the "attorneys." Therefore, Document 2 fell within the attorney client privilege. As to the work product privilege, the Court held that the "prepared in anticipation of litigation" standard is satisfied by demonstrating that a lawyer prepared a document in the course of an investigation that was undertaken with litigation in mind, even though no specific lawsuit has been filed. In this case, the Court held that Document 2 was prepared in the course of an investigation that was undertaken with litigation in mind.


Maryland Defense Counsel, Inc.
1218 Broadway Rd.
Lutherville, MD 21093
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