UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

VERONICA RAYNOR, Individually and as : 

the Personal Representative of the : 

Estate of Reuel Griffin, : 

 : 

 Plaintiff, : Civil Action No.: 14-0750 (RC) 

 : 

 v. : Re Document No.: 127 

 : 

DISTRICT OF COLUMBIA, et al., : 

 : 

 Defendants. : 

MEMORANDUM OPINION AND ORDER 

GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR IN CAMERA REVIEW OF 

CERTAIN DOCUMENTS UNDER SEAL AND FOR AN ORDER THAT THE DOCUMENTS ARE NOT 

PRIVILEGED [127] 

On April 29, 2014, Plaintiff Veronica Raynor filed this action against the District of 

Columbia and several other defendants based on the death of Reuel Griffin at Saint Elizabeths 

Hospital in 2012. See generally Compl., ECF No. 1. As part of the discovery in this case, 

Plaintiff has sought communications of various officials at that hospital, the Department of 

Mental Health, and the Department of Healthcare Finance. To date, the District has apparently 

produced more than 250,000 pages of documents. Throughout this process, however, the 

District has made extensive redactions to documents on the grounds that such information was 

subject to attorney-client privilege, deliberative process privilege, or contained personally 

identifiable information of patients. 

On July 24, 2017, the District sent Plaintiff a claw-back letter, claiming that it had 

inadvertently produced privileged information and demanded that Plaintiff return certain 

documents. In total, the District is seeking to claw back approximately 200 documents. 
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Plaintiffs, however, disputed the District’s right to claw those documents back. The parties 

brought this issue to the Court’s attention and the Court directed the parties to meet, confer, and 

attempt to resolve this matter on their own. Regrettably, the parties have been unable to resolve 

the matter without judicial intervention and therefore they now request the Court to review the 

documents and make a ruling. For the reasons stated below, the Court finds that the District has 

conceded any argument on claims of deliberative process privilege and likely waived any 

assertion of attorney-client privilege for the documents at issue for failing to act promptly. 

A. Deliberative Process Privilege 

One of the grounds that the District has claimed for withholding documents is the 

deliberative process privilege. That privilege “protects communications that are part of the 

decision-making process of a governmental agency.” United States v. Farley, 11 F.3d 1385, 

1389 (7th Cir. 1993) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150–52 (1975)). 

Plaintiff argues, however, that the District cannot assert the deliberative process privilege in this 

case because that process is at issue in this very litigation. See Pl.’s Mot. at 3 (citing In re 

Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 145 F.3d 1422, 

1424 (D.C. Cir. 1998) and Convertino v. U.S. Dep’t of Justice, 674 F. Supp. 2d 97, 102 (D.D.C. 

2009)). While this position certainly seems consistent with the law in this Circuit and is most 

likely correct, the Court need not decide this issue because the District has failed to respond to 

the argument in its opposition. It has therefore conceded the point. See Texas v. United States, 

798 F.3d 1108, 1110 (D.C. Cir. 2015) (Local Rule 7(b) “is understood to mean that if a party 

files an opposition to a motion and therein addresses only some of the movant’s arguments, the 

court may treat the unaddressed arguments as conceded.” (internal citations and quotation marks 
3 

omitted)). Accordingly, Plaintiff need not return any information based on the assertion of the 

deliberative process privilege. 

B. Attorney-Client Privilege 

The District also claims that it is entitled to the return of information based on an 

assertion of the attorney-client privilege. The attorney-client privilege “shelters confidential 

communications between an attorney and client, including their agents, made with a primary 

purpose of seeking or providing legal advice.” United States ex rel. Barko v. Halliburton Co., 74 

F. Supp. 3d 183, 187 (D.D.C. 2014). “Traditionally, the courts have concluded that the burden 

falls to the claimant of the privilege . . . to present sufficient facts to establish the privilege.” 

Amobi v. D.C. Dep’t of Corr., 262 F.R.D. 45, 51 (D.D.C. 2009). Likewise, “[t]he D.C. Circuit’s 

strict definition of privilege carries over to the waiver of privilege, placing the burden of 

protecting privileged communications squarely on the proponent of the privilege.” Banneker 

Ventures, LLC v. Graham, 253 F. Supp. 3d 64, 71 (D.D.C. 2017); see also Amobi, 262 F.R.D. at 

53 (“In this district, prior to the enactment of [Rule 502], ‘the proponent of the privilege . . . 

[had] the burden of showing that it [had] not waived attorney-client privilege’” and “I see no 

reason why Rule 502 can be interpreted to modify that rule and I will apply it.”); Educ. 

Assistance Found. for the Descendants of Hungarian Immigrants in the Performing Arts, Inc. v. 

United States, 32 F. Supp. 3d 35, 44 (D.D.C. 2014) (“The party asserting the privilege, even if 

disclosure of the communication was inadvertent, bears the burden of establishing each of these 

three elements.” (citing Williams v. District of Columbia, 806 F. Supp. 2d 44, 48 (D.D.C. 

2011))). Accordingly, it is the District’s burden to show both that the information that it is 

seeking returned is protected by the privilege and that it has not waived the privilege by 

disclosing those documents to Plaintiff. 
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Although the Court is highly skeptical of the vast majority of the District’s privilege 

claims, the Court need not address the issue at this juncture because, even assuming that the 

information is privileged, the Court finds that District has by and large failed to show that the 

privilege was not waived. First, while the District claims that Plaintiff should not be permitted to 

argue waiver based on the June 2017 Protective Order, see Def.’s Opp’n at 14, ECF No. 14 

(citing ECF No. 101), its argument does not carry water. The District points to language in the 

Protective Order, stating that “[i]f a producing party inadvertently discloses documents or items 

that are asserted to be privileged or otherwise immune from discover, the producing party shall 

promptly advise the receiving party in writing and request that the item or information be 

returned and any copies be destroyed.” Protective Order ¶ 3(c), ECF No 101. It states further 

that “[n]o party to this action shall thereafter assert that such disclosure waived any privilege or 

immunity.” Protective Order ¶ 3(c). The problem here is that the overwhelming majority of the 

discovery in this matter was produced long before June 2017, when the Protective Order was 

issued. The District does not explain why the provision of the Protective Order should apply to 

information already produced and the language of the Order itself does not indicate any intent to 

apply retroactively. Thus, the District has not shown why Plaintiff should be precluded from 

arguing waiver in this instance. The Court, therefore, turns to that precise issue. 

The issue of inadvertent waiver is governed by Rule 502(b) of the Federal Rules of 

Evidence. That Rule states that “disclosure does not operate as a waiver in a federal or state 

proceeding if (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took 

reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to 

rectify the error, including (if applicable) following Federal Rule of Civil Procedure 
5 

26(b)(5)(B).” Fed. R. Evid. 502(b). The Court is persuaded that the District has failed to satisfy 

this standard. 

Although the District claims that the production of privileged material in this matter was 

inadvertent, that fact is far from clear. Indeed, it appears more likely that different reviewers 

redacted multiple versions of the same document in different ways based on their different 

understanding of the privilege’s application—not inadvertence due to matters slipping through 

the cracks in a large production. Nevertheless, the Court will assume for purposes of this motion 

that, in fact, the information was produced inadvertently. 

Even if the District’s production of privileged information was inadvertent, it must still 

prove that it took reasonable steps to prevent disclosure. See Williams v. District of Columbia, 

806 F. Supp. 2d 44, 49 (D.D.C. 2011) (“[T]he holder of the privilege bears the burden of 

establishing that it ‘took reasonable steps to prevent disclosure’ in the first place.” (citing Fed. R. 

Evid. 502(b)(2))). But the District makes no effort to provide any detail or in any way explain 

the sorts of procedures or methodologies it followed in reviewing and producing documents. See 

id. at 50 (“The general statement that a privilege review was performed, without any supporting 

details, is completely uninformative.”); Amobi, 262 F.R.D. at 54–55 (“[D]efendants do not meet 

the burden of proving that the privilege was not waived” when “there is no indication of what 

specific efforts were taken to prevent disclosure, let alone any explanation of why these efforts 

were, all things considered, reasonable in the context of the demands made upon the defendants” 

and “the court is left to speculate what precautions were taken by counsel to prevent this 

disclosure.”). Rather, the District argues only summarily, and without record support, that the 

small fraction of privileged documents inadvertently slipped through its process as part of large 

productions on tight deadlines. These assertions come only in the form of unsworn statements 
6 

from counsel, and for whom it is unclear how much personal knowledge counsel may actually 

have on the issues of discovery here. This is simply not enough. Indeed, other Judges on this 

Court have admonished the District on exactly this point. See Williams, 806 F. Supp. 2d at 49 

(holding that the District’s exclusive reliance on “the unsworn averments of its counsel, who is 

almost certain to lack personal knowledge of the circumstances that surrounded the District’s 

review and production” and failure to support arguments with declaration of those involved in 

discovery was “both inexplicable and unacceptable and constitutes sufficient grounds to deny the 

District’s motion outright”). 

But more problematic is the District’s failure to demonstrate, as it must under Rule 

502(b), that it promptly took reasonable steps to rectify the errors that it has identified. Although 

“privilege is not waived by a mere disclosure to another party without an express intent to waive 

such privilege, the party making the disclosure cannot sit idly and do nothing to prevent 

inadvertent disclosures, nor can that party fail to take steps to rectify an inadvertent disclosure 

once one has been discovered.” Absolute Activist Value Master Fund Ltd. v. Devine, 262 F. 

Supp. 3d 1312, 1323 (M.D. Fla. 2017). According to Advisory Committee Notes for Rule 

502(b), one of the factors courts should consider is the “time taken to rectify the error.” Fed. R. 

Evid. 502 advisory committee’s note (2007). 

The District contends, again in conclusory fashion, that it acted “promptly” when it “sent 

Plaintiff a clawback letter to rectify the error.” Defs.’ Opp’n at 15. This assertion is belied by 

the facts in this case. Many of the documents at issue were produced back in 2015. There is 

good reason to believe that the District either knew or should have known about any errors in 

those documents as the District itself referenced some of these documents in its early discovery 

responses and Plaintiff later used them in its Motion to Compel. Yet the District remained silent 
7 

on the issue until July 24, 2017, when it issued its claw back letter. Although the District does 

not specifically indicate when it learned of the errors in each of the documents, it is at least 

reasonable under the facts of this case to expect the District to have both learned about the 

production of privileged material and to have acted on that information within one year of 

production. That is, the District can only reasonably argue that it has acted promptly in issuing 

its claw back letter with respect to documents that were produced within one year of the letter. 

Accordingly, the District has not been prompt with regard to any documents produced before 

July 24, 2016 and has consequently waived any privilege it might have claimed in those 

documents. Thus, Plaintiff need not return documents or information that was produced before 

this date, nor must it return any later-produced copies of the same information. Because there 

are so many different versions of the same communications spanning various Bates ranges, it is 

possible that this finding alone may resolve the dispute for all documents at issue. 

For the forgoing reasons, Plaintiff’s motion is GRANTED IN PART AND DENIED IN 

PART. It is hereby: 

ORDERED that the parties have thirty days from the date of this Memorandum Opinion 

and Order to determine whether there remain any documents or information for which the Court 

must still assess an assertion of attorney-client privilege. If so, the parties are ordered to (1) 

identify those documents by Bates numbers, (2) provide the Court with privilege log entries 

associated with those documents, and (3) the District must provide the Court with any 

unredacted versions of “root” attorney-client communications upon which an assertion of 

privilege is based. 

SO ORDERED 

Dated: February 12, 2018 RUDOLPH CONTRERAS 

 United States District Judge