1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LESTER A. LEACH, Plaintiff,

v. Civil Action No. 18
- 3075 (JEB) JANET YELLEN , Secretary of the Treasury,
Defendant .

MEMORANDUM OPINION
A mere nine lines of text across three email s ha s yielded 45 pages of briefing in this dispute over whether t hese communications are subject to the attorney

- client privilege. The

e mails reflect an ex change between management offici als at the U.S. Mint and d o not concern or involve Plaintiff Lester Leach. He would nonetheless like to use t hem in his own employment

discrimination suit against the Mi nt , a part of the Treasury Department , as the email s could conceivably show that another employee was subject to similar treatment

. Defendant Secretary of the Treasury assert s that because the emails involve the Mint ’s Chief Counsel and seek legal advice , they are privileged and should not be disclosed. Plaintiff rejoins that the email s are not privileged and that , in any event, Treasury has waived any privilege that appli e d. The Court
agrees on the first point: t he emails in question are not shielded by the attorney

- client privilege because they do not involve the giving or receiving of legal advice from the C hief Counsel or anyone else

. I. Background2 This motion arises against the backdrop of the employment

- discrimination case brought by Plaintiff, a Black man employed in the Protection Directorate of the U.S. Mint

. See ECF No. 1 (Compl.), ¶ 15

. He alleges that the Mint retaliated and discriminated against him based on his
race, and also created a hostile and abusive work environment. Id

. , ¶¶ 66

– 88. Those claims , however, are not critical to th is dispute ’s resolution . Rather, what is at issue is whether the attorney

- client privilege applies to an email that was produced following a deposition of another Mint employee, Lisa Nicholson, who works in the Human Resources Department and may be a

“ me - too ” witness who asserts similar discrimination

. See ECF No s
. 41 (Def endant’s Op posit ion to Plaintiff’s Motion to Determine Privilege) at 2 ; 37 (Plaintiff’s Motion to Determine Privilege)
at 4

– 5

. The three emails produ ced were all sent on July 11, 2018 . The first is from Nicholson to her supervisor Margaret Yauss, who was the Director of Human Capital at that time. See Def. Opp. at 2 ; Pl. Mot. at 5 . In that email, Nicholson wrote that she n eeded to update Yauss about “issues associated with” the resum e of another em ployee, Melanie Barber

. See ECF No. 37

- 4 ( Plaintiff’s Second Supplemental Disclosure ) at 4

. Yauss then forwarded that email to Jean Gentry, who was Chief Counsel , and David Croft, who was then the acting Deputy Director of
Human Resources . That second email, which was framed as an FYI , read , “I know I am stating the obvious but good employees should be continue to be ‘attacked’ [ sic ]. I really wish something could be done

. ” Pl

. 2d Supp. Disc. at 4 ; see also Def. Opp. at 3 . Ya uss also
express ed support of Barber as “an excellent employee.” Pl

. 2d Supp. Disc. at 4 ; see also Def. Opp. at 3. Gentry responded in a third email s aying, “I hope this helps” and mentioning that someone would “be reaching out to” both Croft and Yauss “to discuss a proposal that we have to3 start an [administrat ive investigation ] ” regarding nonpublic information that Nicholson had allegedly shared. See Pl

. 2d Supp. Disc. at 4.
As is clear from the emails ’ text , the y do not involve Leach and do not have particular relevan ce to his case beyond the fact that he was also subject to an administrative investigation.
See Comp l ., ¶ 7. It is also unclear how Nicholson obtained the second two emails in the chain as she was not included on th ose messages and was not authorized to access or share the communications

. See Def. Opp. at 3. Th ese question s , however, need not waylay the Court ’ s analysis.
II. Analysis Plaintiff puts forward two theories for why the email chain is not privileged: 1) the emails do not seek or offer legal advice ; and 2) even if any privilege is app lied, t he Mint waived i t by not inv oking it during Nicholson’s depositions

. S ee Pl. Mot. at 7

– 10. Defendant disputes both theories , but the Court need only reach the first as t he case can be resolved on that issue alone.
A. Legal Standard
“T he attorney

- client privilege is the oldest of the privileges for confidential communications known to the common law. Its purpose 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 .” Upjohn Co. v. United States , 449 U.S. 383, 389 (1981) (ci tation omitted)

. In particular, “ the privilege applies to a confidential communication between attorney and client if that communication was made for the purpose of obtaining or providing legal advice to the client. ” In re Kellogg Brown & Root, Inc. , 756 F.3d 754, 757 (D.C. Cir. 2014)

.4 This does not mean, however, that all communications involving a lawyer and a n employee are confidential. The att orney - client privilege “ protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege. ” Fisher v. United States , 425 U.S. 391, 403 (1976)

. Courts in this circuit determine whether a disclosure was made for such a reason by asking “ whether obtaining or providing legal advice was one of the significant purposes of the attorney

- client communication. ” In re Kellogg Brown & Root, Inc. , 756 F.3d at 760

. Deter mining when the attorney

- client privilege adheres can be especiall y di fficult in communications with in

- house counsel like those at issue here

. Although a lawyer’s status as an “in

- house attorney . . . alone does not dilute the privilege ,” such counsel may have “ certain responsib ilities outside the lawyer ’ s sphere .” In re Sealed Case , 737 F.2d 94, 99 (D.C. Cir. 1984)

. B. Application to July 2018 Emails Plaintiff maintains that the email ex chan ge among Gentry , Yauss , and Crof t was run - of

the

- mill wo r kplace griping that only co nveyed facts, while Defe ndant frames the e mails as a
req uest for and the subsequent provision of legal advice

. I n the Mi nt ’ s view, t he email from Yauss to Gentry w as a “request for legal advice ” because b y writing “FYI” and “I really wish something could be done,” Yauss was seeking assistance from Gentry, the Mi nt ’ s Chief Counsel,
in formulat ing a reme d y and “obtain [ing] legal advice in dealing with personnel matters

. ” Defs. Resp. at 10 ; Pl

. 2d Supp. Disc. at 4

. Simila rl y , Defendant frames G entry ’ s response stating , “I hope this helps” and not ing that someone would be reaching out to discuss an administrative investigation as the provision of su ch legal advice. See Defs. Resp. at 10 ; Pl

. 2d Supp. Disc. at 4

. To start, the s imp le fact that this email exchange involved the Min t ’ s Chief Counsel does not automatically elevate it to the status of a privileged communication. T he emails , moreover,5 do not involve legal advice. Rather , t hey reflect Yauss ’ s frustration with a situation in which she though t Nicholson was treating another employee unfairly. He r wi sh that “ something could be done ” is consistent with airing such a grievance. Similarly, Gentry’s response does not bear the indicia of a communication intended to prov ide legal advice . All she wrote was , “I hope this helps” and noted that someone would be reaching out to Yauss abou t a proposal , neither of which was a statement offering advice about how to handle the legal challenges of the personnel action

. Indeed, Gentry was not acting in the capacity of collecting facts and ensuring com pliance in the context of an ongoing internal investigation ; she merely mentioned that someone e lse would be reaching out about a potential administrative investigation in the future

. Cf. Upjohn
Co. , 449 U.S. at 39 7 (finding th at attorn ey - client privilege applied to communications in ongoing internal investigation ) ; In re Kellogg Brown & Root, Inc. , 756 F.3d at 757 ( privilege applied in context of “ internal investigation to gather facts and ensure compliance with the law after being
informed o f potential misconduct ”)

. Overall, n othing about either these emails suggests that

“ obtaining or providing legal advice was one of the significant purposes of ” the e mail exchange. Id

. at 760

. The Court thus finds that the three emails provided by Nicholson are not privileged

. III. Conclusion For the foregoing reasons, the Court will grant Plaintiff’s Motion to Determine Privilege and find that the communications at issue are no t privileged . A contemporaneous Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge
Date: July 8, 2022