UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

__________________________________________ ) A.N.S.W.E.R. C OAL I TI ON, ) ) Plaintiff, ) ) v. ) Civil Action No. 05-0071 ( PL F) ) KEN SALAZ AR, Secre tary , ) United States Depa

rtment of the Interior, e t al., ) ) Def endants. ) __________________________________________)

MEMORANDUM OPI

NI ON AND ORDER On August 4, 2010, the Court refe rre d this case to Mag istrate Judge A lan Kay for the purpose of

conducting

an in camera revie w of doc uments that were withheld or produc ed in reda cted f orm by the National Par

k Service (“N PS”) in connec tion with plainti ff’ s reque st for discovery in this case. Mag istrate Judge K ay persona lly

revie wed thirtee n separ ate doc uments consisting of

42 pag es in conjunction with the De clar ation of L inda A. Mende lson-I elmini, the ActingReg ional Direc tor of NPS’ National Capital Reg ion. In her D ecla ration, Ms. Mendelson-I elmini states that she deter mined that the attorne y -client privileg e applied to the thirteen doc uments and that they there fore should be withheld in full. Whi le there is some discussion in the parties’ pa pers a bout the work produc t and deliber ative proc ess privileg es, it is clea r that Mag istrate Judge K ay ’s deter minations were ba sed exclusively on the attorne y -client privileg e, and the parties se em to agree that that is the only privileg e at issue. In considering plaintiff’s objec tions to Magistrate J udg e Ka y ’s Memora

ndum Order , the Court there fore limit s its review to the attorney -client privileg e question.When a par ty objects to a mag istrate judg e’s de termination with respe ct to a non-dispositive matter, such a s the privileg e dete rminations made in this case, the Court must modify or set aside all or par

t of the mag istrate judg e’s or der if it is “c lear ly err oneous” or “contr ary to law.” F E D . R. C I V . P. 72(a); see also L O C . C I V . R. 72.2(c) . This standard is met when, “ althoug h there is evidence to support [ a dete rmination], t he re viewingcourt on the e ntire evidenc e is left with the def inite and firm convic tion that a mistake has bee n committed.” Fede ral Savs. &Loan Ins. Corp. v. Commonwealth Land T itle Ins. Co. , 130 F.R.D. 507, 508 (D.D.C. 1990) ( internal quotations and c itation omit ted); see also Beale v . District of Columbia , 545 F. Supp. 2d 8, 13 (D.D .C. 2008). The Court is convince d that such mistakes we re ma de here

. As noted, Mag istrate Judge K ay revie wed thirtee n documents consistingof 42 pag es with respe ct to NPS’ claim of attorne y-client privileg e. The plaintiff has filed objections with respe ct to only seven of those deter

minations. Two of the docume nts — Document Nos. 0020- 0022 and 0023-0024 — a re de scribed by

Ms. Mendelson-I elmini in her decla ration as “ edited dra ft letter[s] ,” and oneof them has “ attorney ’s hand- written notations” on it. W hile either or

both of these dr aft letter s might constitute attorne y work produc t if draf

ted by an attorne y

— and ther e is no repr esentation that they wer e — or be a par

t of the deliber ative proce ss, NPS does not i nvoke either of those privileg es with respe ct to these doc uments. The Court car efully

has re viewed the se two docume nts and conc ludes that neither dr aft letter is protec ted by

the attorne y -client privileg e. With respect to the ha nd-written notations on Document No. 0023- 0024, while they are very difficult to rea d, they

may be attorne y

work

2product, but a r eview of them makes c lear

that they are not protecte d by

the attorne y -client privileg e. Wit h respe ct to four other documents — Doc ument Nos. 0032-0033, 0034-0035, 0036-0037, and 0038- 0039 — Ms. Mendelson-I elmini’s declar ation makes c lear that NPS claims attorney-client privileg e only with respec t to the hand-wr itten notations by a Solicitor’s Off

ice attorney on eac h of the dra ft excerpts of a n undated Par

k Service permit; NPS does not claim the privileg e with re spect to the dra ft excerpts themselves. A g ain, the Court ca ref ully has re viewed the hand- written notations on eac h of these doc uments. There are very fewnotations on any

of them, and the f

ew notations consist larg ely of such wor ds as “de signated,” “ leadingup to,” and “non-bold.” Such notations are a ttorney work produc t in the colloquial or common usag e sense beca use an a ttorney made them, but they

likely would not enjoy

the protec tions of the attorney work produc t or deliberative proce ss privileg e. Reg ardle ss, since the only question befor e the Court is whether they

are subject to the attorne y -client privileg e, the Court conf idently conclude s that the privileg e does not a pply

. As for the final docume nt, a Park Servic e per mit — Document No. 0016-0018 — Mag istrate Judge K ay

found that it was not privileg ed and tha t it shoul d be produc ed, but permitted the ha

nd-written mar

kings ma de by

a Solicitor’s Off

ice attorney

to be re dacte d pursuant to the attorne y -client privileg e. The Court agree s with Mag istrate Judge K ay that the document is not privileg ed but disagree s with his conclusion that the hand-wr itten marking s are . Those mar

kings c onsist entirely

of the wor d “excer

pts,” arr ows direc ted to cer tain para g raphs, and the c irclingof ce rtain languag e. The Court does not see how suc h marking s are protec ted by the attorne y -client privileg e. F or the for eg oing r easons, it is here by

3ORDERED that Mag istrate Judge K ay ’s Memora ndum Order

of De cembe r 9, 2010 [Dkt. No. 120] is set aside; and it is

FURTHE R ORDERED that the documents discussed he rein must be disclosed promptly to the plaintiff. SO ORDERED.

/s/ PAULL . FRI EDMAN DATE: June 23, 2011 United States District J udg e

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