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 G RANTING IN P ART AND D ENYING IN P ART P LAINTIFF ’ S M OTION F OR I N C AMERA R EVIEW OF C ERTAIN D OCUMENTS U NDER S EAL A ND F OR A N O RDER T HAT T HE D OCUMENTS ARE N OT P RIVILEGED [127]
On April 29, 2014, Plaintiff Veronica Raynor filed this action against the District of Columbia and several other defe ndants based on the death of Reu el Griffin at Saint Elizabeths Hospital in 2012. See generally Compl., ECF No. 1. As part of the discovery in this case, Plaintiff has sought communica tions of various officials at tha t hospital, the Department of Mental Health, and the Departmen t of Healthcare Finance. To da te, the District has apparently produced more than 250,000 pages of documents. Throughout this process, however, the District has made extensive r edactions to documents on the grou nds that such information was subject to attorney-client pri vilege, deliberative process priv ilege, or contained personally identifiable information of patients. On July 24, 2017, the District sent Plaintiff a claw-back lette r, claiming that it had inadvertently produced privileged information and demanded that Plaintiff return certain documents. In total, the Distric t is seeking to claw back appr oximately 200 documents.2 Plaintiffs, however, disputed the District’s right to claw thos e documents back. The parties brought this issue to the Court’s attention and th e Court direc ted the parties to meet, confer, and attempt to resolve this matte r on their own. Regrettably, the parties have been unable to resolve the matter without judicial int ervention 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 privile ge and likely waived any assertion of attorney-c lient privilege for the documents at iss ue for failing to act promptly. A. Deliberative Process Privilege One of the grounds that the Distri ct has claimed for withholdin g documents is the deliberative process privilege. T hat privilege “protects commu nications 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 th e 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 certa inly seems consistent with th e law in this Circuit and is most likely correct, the Court need not decide this issue because th e 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 under stood 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.” (intern al citations and quotation marks3 omitted)). Accordingly, Plaintiff need not return any informat ion based on the assertion of the deliberative process privilege. B. Attorney-Client Privilege The District also claims that i t is entitled to the return of i nformation based on an assertion of the attorney-clientprivilege. The attorney-clien t privilege “shelters confidential communications between an attorne y and client, including their agents, made with a primary purpose of seeking or pr oviding 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 suffici ent 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 car ries over to the waiver of pr ivilege, placin g the burden of protecting privileged communica tions 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], ‘t he proponent of the privilege . . . [had] the burden of showing that it [had] not waived attorney-c lient privilege’” and “I see no reason why Rule 502 can be interpr eted to modify that rule and I will apply it.”); Educ. Assistance Found. for the Descendant s 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 w as inadvertent, bears the burd en 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 prot ected by the privilege and that it has not wai ved the privilege by disclosing those documents to Plaintiff.4 Although the Court is highly skept ical of the vast majority of the District’s privilege claims, the Court need not addres s the issue at this juncture b ecause, even assuming that the information is privileged, the C ourt finds that District has byand large failed to show that the privilege was not waived. First , while the District claims tha t 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 argumen t does not carry water. The D istrict points to language in the Protective Order, stating that “[i]f a producing party inadvert ently discloses documents or items that are asserted to be privileg ed or otherwise immune from dis cover, the producing party shall promptly advise the receiving party in writing and request that the item or information be returned and any copies be destro yed.” Protective Order ¶ 3(c) , ECF No 101. It states further that “[n]o party to this action s hall thereaf ter assert that su ch 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 e xplain why the provision of the Protective Order should apply to information already produced and the language of the Order itse lf does not indicate any intent to apply retroactively. Thus, the D istrict has not shown why Plai ntiff should be precluded from arguing waiver in this instance . The Court, therefore, turns t o that precise issue. The issue of inadvertent waiver is governed by Rule 502(b) of t he Federal Rules of Evidence. That Rule states th at “disclosure does not operate a s 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 disc losure; and (3) the holder prom ptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure5 26(b)(5)(B).” Fed. R. Evid. 502(b) . The Court is persuaded th at the District has failed to satisfy this standard. Although the District claims tha t the production of privileged material in this matter was inadvertent, that fact is far from clear. Indeed, it appears m ore likely that different reviewers redacted multiple versions of the same document in different ways based on their different understanding of the privilege’s a pplication—not in advertence d ue to matters slipping through the cracks in a large producti on. Nevertheless, the Court will assume for purposes of this motion that, in fact, the informati on was produced inadvertently. Even if the District’s producti on of privileged information was inadvertent, it must still prove that it took reasonable ste ps to prevent disclosure. See Williams v. District of Columbia , 806 F. Supp. 2d 44, 49 (D.D.C. 2011) (“[T]he holder of the priv ilege 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 Distr ict makes no effort to provide any detail or in any way explain the sorts of procedures or methodologies it followed in reviewi ng and producing documents. See id. at 50 (“The general statement th at a privilege review was perfo rmed, without any supporting details, is completely uninformative.”); Amobi , 262 F.R.D. at 54–55 (“[D]ef endants do not meet the burden of proving that the pr ivilege was not waived” when “ there is no indication of what specific efforts were taken to pr event disclosure , let alone an y explanation of why these efforts were, all things considered, reason able in the context of the d emands made upon the defendants” and “the court is left to speculate what precautions were takenby counsel to prevent this disclosure.”). Rather, the Dis trict argues only summarily, andwithout record support, that the small fraction of privileged documen ts inadvertently slipped th rough its process as part of large productions on tight deadlines. T hese assertions come only in the form of unsworn statements6 from counsel, and for whom it is unclear how much personal know ledge counsel may actually have on the issues of discovery he re. This is simply not enoug h. Indeed, other Judges on this Court have admonished the Dis trict on exactly this point. See Williams , 806 F. Supp. 2d at 49 (holding that the District’s ex clusive 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 de claration of those involved in discovery was “both inexplicable and unacceptable and constitut es sufficient grounds to deny the District’s motion outright”). But more problematic is the Dist rict’s failure to demonstrate, as it must under Rule 502(b), that it promptly took reasonable steps to rectify the errors that it has identi fied. Although “privilege is not waived by a mer e disclosure to another party without an express intent to waive such privilege, the party making the disclosure cannot sit idlyand 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 Ma ster Fund Ltd. v. Devine , 262 F. Supp. 3d 1312, 1323 (M.D. Fla. 2017). According to Advisory Co mmittee 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 c onclusory fashi on, that it act ed “promptly” when it “sent Plaintiff a clawback letter to r ectify the error.” Defs.’ Opp’ n at 15. This assertion is belied by the facts in this case. Many of the documents at issue were pr oduced back in 2015. There is good reason to believe that the D istrict 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 us ed them in its Motion to Compel . Yet the District remained silent7 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 inf ormation within one year of production. That is, the Distric t can only reasonably argue th at it has acted promptly in issuing its claw back letter with respe ct to documents that were produc ed within one year of the letter. Accordingly, the District has not been prompt with regard to an y documents produced before July 24, 2016 and has consequently w aived any privilege it migh t have claimed in those documents. Thus, Plaintiff need not return documents or inform ation that was produced before this date, nor must it return a ny later-produced copies of the same information. Because there are so many different versions of the same communications spann ing various Bates ranges, it is possible that this finding alone m ay resolve the dispute for al l 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 fro m the date of this Memorandum O pinion and Order to determine whether there remain any documents or in formation for which the Court must still assess an assertion of attorney-client privilege. I f 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 prov ide the Court with any unredacted versions of “root” a ttorney-client communications up on which an assertion of privilege is based. SO ORDERED
Dated: February 12, 2018 RUDOLPH CONTRERAS United States District Judge