United States District Court, D. Maryland
COURTNEY L. MORGAN,
CITY OF ROCKVILLE, et al.
JILLYN K. SCHULZE, Magistrate Judge.
Presently pending is Plaintiff's Memorandum Re: Attorney-Client Privilege, hereinafter referred to as Plaintiff's Motion to Compel Production of the Saul Ewing Report. ECF No. 51. The issues have been fully briefed and no hearing is necessary. See Local Rule 105.6. For the reasons set forth below, Plaintiff's motion will be denied.
This case arises out of a racial discrimination claim filed by Plaintiff against Susan Swift and the City of Rockville. During discovery, Plaintiff sought the production of an investigative report conducted on behalf of the City by Saul Ewing, LLP. ECF No. 40-1. The City hired Saul Ewing as part of an effort to address recent complaints by city employees about the workplace environment. On May 4, 2012, the City and Saul Ewing executed a written agreement setting out the terms of the project. ECF No. 52-1. Exhibit A to the agreement states that Saul Ewing will "[r]eview, revise, and supplement the City's Personnel Policy and Procedures Manual" and "[c]onduct investigations of... [c]omplaints by former City employees... [and] [w]orkplace complaints by current City employees." Id. The document also explains that Saul Ewing was required to submit a "Confidential Report summarizing [its] findings and offering recommendations to the City." Id. The hourly rates of the Saul Ewing lawyers assigned to the project also are included.
After the report was completed, the City of Rockville issued a news release stating that the City had engaged Saul Ewing to conduct an internal review of Rockville's personnel policies and procedures and that "Saul Ewing identified no unlawful conduct." ECF No. 52-2 at 1. The news release stated that the report contained several recommendations, including (1) refining the City's employee performance evaluation policies; (2) updating the City's Personnel Policies and Procedures Manual; and (3) improving training to ensure consistent application of the City's policies across the organization. Id.
Defendants refused to produce the report to Plaintiff, claiming that the document was protected by the attorney-client privilege. The court held a telephone conference on July 17, 2014 to address the issue and, after some discussion, directed the parties to brief the matter further. The issues presented in those briefs are the same issues presently pending before the court, namely: (1) whether the Saul Ewing report is protected by the attorney-client privilege and (2) if so, whether Defendants waived the privilege by disclosing the content of the report in a news release.
a. Attorney-Client Privilege.
The aim of the attorney-client privilege is "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.'" United States v. Jicarilla Apache Nation, 131 S.Ct. 2313, 2320-21 (2011) (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). The objectives of the attorney-client privilege apply to governmental or corporate clients just as they do to individual clients. Id. "The privilege aids government entities and employees in obtaining legal advice founded on a complete and accurate factual picture." Id. at 2321. "Unless applicable law provides otherwise, the Government may invoke the attorney-client privilege in civil litigation to protect confidential communications between Government officials and Government attorneys." Id. (citation omitted). "Admittedly complications in the application of the privilege arise when the client is a corporation [or a government entity], which in theory is an artificial creature of the law, and not an individual; but this Court has assumed that the privilege applies when the client is a corporation." Upjohn Co., 449 U.S. at 389-90.
A party asserting the attorney-client privilege must demonstrate that:
(1) the asserted holder of the privilege is or sought to become a client;
(2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer;
(3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal ...