473 F.3d 413 (2nd Cir. 2007), 06-2459, In re County of Erie

Docket Nº:06-2459-OP.
Citation:473 F.3d 413
Party Name:In re the COUNTY OF ERIE Adam Pritchard, Edward Robinson, and Julenne Tucker, both individually and on behalf of a class of others similarly situated, Plaintiffs-Respondents, v. The County of Erie, Patrick Gallivan, both individually and in his official capacity as Sheriff of the County of Erie, Timothy Howard, both individually and as Undersheriff
Case Date:January 03, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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473 F.3d 413 (2nd Cir. 2007)

In re the COUNTY OF ERIE

Adam Pritchard, Edward Robinson, and Julenne Tucker, both individually and on behalf of a class of others similarly situated, Plaintiffs-Respondents,

v.

The County of Erie, Patrick Gallivan, both individually and in his official capacity as Sheriff of the County of Erie, Timothy Howard, both individually and as Undersheriff of the County of Erie, Donald Livingston, both individually and as Acting Superintendent of the Erie County Correctional Facility, and Robert Huggins, both individually and as Deputy Superintendent of the Erie County Correctional Facility, Defendants-Petitioners,

H. McCarthy Gibson, both individually and as Superintendent of the Erie County Holding Center, Defendant.

No. 06-2459-OP.

United States Court of Appeals, Second Circuit.

January 3, 2007

Submitted: September 12, 2006.

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[Copyrighted Material Omitted]

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Frank T. Gaglione, Hiscock & Barclay LLP, Buffalo, NY, for Defendants-Petitioners.

Elmer Robert Keach, III, Law Offices of Elmer Robert Keach, III, PC, Amsterdam, NY; Jonathan W. Cuneo, Charles J. LaDuca, Alexandra Coler, Cuneo, Gilbert & Laduca, LLP, Washington, DC; Gary E. Mason, Nicholas A. Migliaccio, The Mason Law Firm, PC, Washington, DC; Alexander E. Barnett, The Mason Law Firm, P.C., New York, NY; David Gerald Jay, Buffalo, NY; Bruce E. Menken, Jason J. Rozger, Beranbaum Menken Ben-Asher & Biermam LLP, New York, NY, for Plaintiffs-Respondents.

Before JACOBS, Chief Judge, CARDAMONE and MINER, Circuit Judges.

DENNIS JACOBS, Chief Judge.

In the course of a lawsuit by a class of arrested persons against Erie County (and certain of its officials) alleging that they were subjected to unconstitutional strip searches, the United States District Court for the Western District of New York (Curtin, J.) ordered the discovery of e-mails (and other documents) between an Assistant Erie County Attorney and County officials that solicit, contain and discuss advice from attorney to client. The County defendants petition for a writ of mandamus directing the district court to vacate that order. The writ is available because: important issues of first impression are raised; the privilege will be irreversibly lost if review awaits final judgment; and immediate resolution of this dispute will promote sound discovery practices and doctrine. Upon consideration of the circumstances, we issue the writ ordering the district court: to vacate its order, to determine whether the privilege was otherwise waived, and to enter an interim order to protect the confidentiality of the disputed communications.

I

On July 21, 2004, plaintiffs-respondents Adam Pritchard, Edward Robinson and

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Julenne Tucker commenced suit under 42 U.S.C. § 1983, individually and on behalf of a class of others similarly situated, alleging that, pursuant to a written policy of the Erie County Sheriff's Office and promulgated by County officials, every detainee who entered the Erie County Holding Center or Erie County Correctional Facility (including plaintiffs) was subjected to an invasive strip search, without regard to individualized suspicion or the offense alleged, and that this policy violates the Fourth Amendment.1 They sued the County of Erie, New York, as well as Erie County Sheriff Patrick Gallivan; Undersheriff Timothy Howard; the acting Superintendent of the Erie County Correctional Facility, Donald Livingston; the Deputy Superintendent, Robert Huggins; and the Superintendent of the Erie County Holding Center, H. McCarthy Gibson (collectively, the "County").

During the course of discovery, the County withheld production of certain documents as privileged attorney- client communications; a privilege log was produced instead, pursuant to the Federal Rules of Civil Procedure and Local Civil Rules for the Western District of New York. In August 2005, plaintiffs moved to compel production of the logged documents, almost all of which were e-mails. The County submitted the documents to Magistrate Judge Hugh B. Scott for inspection in camera. In January 2006, Judge Scott ordered production of ten of the withheld e-mails, 2 which (variously) reviewed the law concerning strip searches of detainees, assessed the County's current search policy, recommended alternative policies, and monitored the implementation of these policy changes.

Judge Scott reasoned that:

· These communications "go beyond rendering 'legal analysis' [by] propos[ing] changes to existing policy to make it constitutional, including drafting of policy regulations";

The "drafting and subsequent oversight of implementation of the new strip search policy ventured beyond merely rendering legal advice and analysis into the realm of policy making and administration"; and

· "[N]o legal advice is rendered apart from policy recommendations."

Judge Scott ordered the County to deliver these ten e-mails to the plaintiffs.

After considering the County's objections to this order, the district court independently reviewed the disputed e-mails in camera and, applying a "clearly erroneous" standard, overruled the objections, and directed production. This petition for a writ of mandamus followed.

II

Ordinarily, pretrial discovery orders involving a claim of privilege are unreviewable on interlocutory appeal, "and we have expressed reluctance to circumvent this salutary rule by use of mandamus." In re W.R. Grace & Co., 984 F.2d 587, 589 (2d Cir. 1993). At the same time, the writ is appropriate to review discovery orders that potentially invade a privilege, where: (A) the petition raises an important issue of first impression; (B) the privilege will be lost if review must await final judgment; and (C) immediate resolution

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will avoid the development of discovery practices or doctrine that undermine the privilege. Chase Manhattan Bank, N.A. v. Turner & Newall PLC, 964 F.2d 159, 163 (2d Cir. 1992); In re Long Island Lighting Co., 129 F.3d 268, 270 (2d Cir. 1997). (Although the County argues that any single showing is enough, the test sprouts three prongs; in any event, the County prevails on all three.)

(A) This petition raises an issue of first impression: whether the attorney-client privilege protects communications that pass between a government lawyer having no policymaking authority and a public official, where those communications assess the legality of a policy and propose alternative policies in that light.3 The issue is not unimportant.

"[T]here is little case law addressing the application of the attorney-client privilege" in the government context. In re Grand Jury Investigation, 399 F.3d 527, 530 (2d Cir. 2005); see also Ross v. City of Memphis, 423 F.3d 596, 601 (6th Cir. 2005) (same). The issue of first impression here concerns policy advice rendered by a government lawyer, and the distinction between (on the one hand) attorney-client privileged recommendations designed to achieve compliance with the law or reduce legal risk, and (on the other) recommendations made for other reasons, which advice may not be privileged.4

(B) Post-judgment relief would be inadequate to protect the privilege, if it exists; this consideration "justifies the more liberal use of mandamus in the context of privilege issues." In re Long Island Lighting Co., 129 F.3d at 271; see also In re von Bulow, 828 F.2d 94, 99 (2d Cir. 1987).

A motions panel of this Court denied the County's motion for a stay pending appeal, so the communications at issue are already in plaintiffs' hands. Plaintiffs argue that the dispute is now moot because "the risks associated with the development of discovery practices . . . undermining the privilege . . . have already been realized. "Issuing the writ "cannot unsay the confidential information that has been revealed." In re von Bulow, 828 F.2d at 99. In the circumstances presented, the privilege...

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