UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
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E.B., et al.,
Plaintiffs, ORDER
- against - CV 2002-5118 (CPS)(MDG)
NEW YORK CITY BOARD OF EDUCATION, et al.,
Defendants.
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Plaintiffs are a class of disabled children who bring this
action against defendants the New York City Board of Education,
the New York City Department of Education ("DOE"), and Joel Klein,
the Chancellor of the New York City School District, alleging
violations of 42 U.S.C. § 1983, the Fourteenth Amendment to the
United States Constitution, the Individuals with Disabilities
Education Act, 20 U.S.C. § 1400, et seq. ("IDEA"), Section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Americans
with Disabilities Act ("ADA"), 42 U.S.C. § 12132, et seq.
Plaintiffs claim that under defendants' policies governing
suspensions, plaintiffs and other disabled students are illegally
excluded from school without notice of their right to a hearing
and do not receive a free and appropriate public education.
Plaintiffs move to compel defendants to produce documents
withheld under a claim that they are protected from disclosure by
the attorney-client privilege and the attorney work-product
doctrine or to submit the withheld documents for in camera review.
FACTUAL BACKGROUND
The documents in dispute concern two types of documents that
the DOE claims were created in the course of consultation with
counsel.
Questionnaires and Responses
In or about February 2006, attorneys in DOE's Office of Legal
Services ("OLS") decided to obtain information concerning the
operation of DOE's suspension sites in order to evaluate DOE's
legal position in this action and to provide legal advice to the
Chancellor and Michele Cahill, Senior Counselor of the Office of
Youth Development and School-Community Services. See Declaration
of Theresa Crotty dated March 15, 2007 ("Crotty Decl.") (ct. doc.
158) at ¶ 4. To obtain the information, OLS attorneys, in
conjunction with attorneys at the Office of the Corporation
Counsel, developed a questionnaire to be completed by DOE's
Regional Directors of Student Placement, Youth and Family Support
Services ("SPYFSS"). Id. at ¶ 5. On February 28, 2006, DOE
General Counsel Michael Best sent a memorandum to the Regional
Directors of SPYFSS advising that it was circulating the
questionairre as part of DOE's defense in this litigation, that
recipients were to treat the questionnaire as confidential and
that any questions should be directed to Theresa Crotty, an OLS
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attorney. Id. at ¶¶ 6, 8-10. Ms. Crotty subsequently received a
number of e-mails and letters from DOE employees transmitting
completed questionnaires, containing questions from suspension
sites to Regional personnel concerning the questionnaire, and
reflecting a conversation between Ms. Crotty and a DOE employee
about the questionnaire. See id. at ¶ 12; Declaration of Shawn V.
Morehead dated March 5, 2007 ("Morehead Decl.") (ct. doc. 156-3),
Exh. B (Letter to Shawn Morehead and Sharon Katz from Jane R.
Goldberg dated February 6, 2007).1 The OLS used the completed
questionnaires "to inform [its] view of the DOE's legal position
in this case and to provide legal advice to the Chancellor and
Senior Counselor Michelle [sic] Cahill concerning the
Superintendent suspension process." Crotty Decl. at ¶ 13.
Shane Mulhern, Executive Director of the DOE's Office of
Youth Development and School-Community Services ("OYDSCS"), was
later provided with a copy of the completed questionnaires at his
request. See Declaration of Shane Santo Mulhern dated March 15,
2007 ("Mulhern Decl.") (ct. doc. 157) at ¶¶ 15-16. Mr. Mulhern
believed that the information compiled by OLS would inform his
department's decisions concerning policy, budget and planning
decisions for Superintendent suspensions. Id. at ¶ 16. OYDSCS
organized the information contained in the completed
questionnaires into a document entitled "Suspension Scoring Sheet"
1 Those e-mails that were not sent directly to Ms. Crotty were forwarded to her. See Morehead Decl., Exh. B at 4 n.1.
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and a bar chart. Id. at ¶¶ 17-19. A single set of these
documents and a set of the completed questionnaires were
maintained at OYDSCS's offices. Id. at ¶ 21.
At a conference held on March 29, 2007, I ordered defendants
to submit a sample of the completed questionnaires for in camera
review. See minute entry for conference held on 3/29/07.
Tracking Suggestions
Mr. Mulhern initiated the Superintendent Suspension Process
Improvement Project (the "Project") to review the suspension
process generally and "to develop a data tracking program to
monitor student progress through the suspension process." Mulhern
Decl. at ¶¶ 4-5. In conjunction with the Project, a document
entitled "Corporation Counsel - Suggestions for additional items
to track" ("Tracking Suggestions") was prepared by Jocelyn Gibian,
Director of the Office of Process Improvement, that discusses the
New York City Law Department's recommendations "concerning
additional items to consider including in the DOE's data tracking
project" and a February 16, 2006 meeting between Ms. Crotty, Ms.
Gibian and Aimee Dorosin, from DOE's Office of Special Education
Initiatives. Id. at ¶ 9. This document was maintained in a
dedicated folder on the DOE computer system and was accessible
only to participants of the Project, who were drawn from various
DOE departments. Id. at ¶¶ 6-8.
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DISCUSSION
Legal Standards
"A party invoking the attorney-client privilege must show
(1) a communication between client and counsel that (2) was
intended to be and was in fact kept confidential, and (3) was made
for the purpose of obtaining or providing legal advice." In re
County of Erie, 473 F.3d 413, 419 (2d Cir. 2007); United States v.
Constr. Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996);
see Fisher v. United States, 425 U.S. 391, 403 (1976). To be
sure, the "privilege protects confidential communications between
government counsel and their clients that are made for the purpose
of obtaining or providing legal assistance."2 In re County of
Erie, 473 F.3d at 418. In order to merit protection, the
"predominant purpose" of the communication must be to render or
solicit legal advice as opposed to business or policy advice. See
id. at 420. The burden of establishing the applicability of the
privilege and all of its elements rests with the party claiming
protection. See In re Grand Jury Proceedings, 219 F.3d 175, 182
(2d Cir. 2000); Constr. Prods., 73 F.3d at 473-74.
Federal Rule of Civil Procedure 26(b)(3) embodies the federal
work-product doctrine which provides qualified protection to
"documents and tangible things . . . prepared in anticipation of
2 In civil suits between private litigants and government agencies, the government's claim of the attorney-client privilege is as strong as that of an individual or a corporate entity. See In re Erie, 473 F.3d at 419.
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litigation or for trial" from discovery. Fed. R. Civ. P.
26(b)(3); see Hickman v. Taylor, 329 U.S. 495, 511 (1947); Constr.
Prods., 73 F.3d at 473. Documents prepared in anticipation of
litigation are those that, "in light of the nature of the document
and the factual situation in the particular case . . . can fairly
be said to have been prepared or obtained because of the prospect
of litigation." United States v. Adlman, 134 F.3d 1194, 1202 (2d
Cir. 1998). Thus, documents prepared in the ordinary course of
business or that "would have been created in essentially similar
form irrespective of the litigation" are not protected by the
work-product doctrine. Id. The party asserting work-product
protection bears the burden of establishing its applicability.
See Constr. Prods., 73 F.3d at 473. If a party seeks disclosure
of protected documents, the party must demonstrate a "substantial
need of the materials in the preparation of the party's case and
that the party is unable without undue hardship to obtain the
substantial equivalent of the materials by other means." Fed. R.
Civ. P. 26(b)(3).
Questionnaires and Responses
I find that defendants have met their burden of demonstrating
that the attorney-client privilege applies to the questionnaire,
responses and related correspondence. The questionnaire was
created by OLS attorneys, with input from attorneys at the Office
of the Corporation Counsel, for the predominant purpose of
evaluating DOE's legal position in this case and providing legal
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advice to the Chancellor and Ms. Cahill. See Crotty Decl. at
¶¶ 4-5. The recipients of the questionnaire were advised that it
was being circulated as part of DOE's defense of this action and
cautioned to keep the information confidential. Id. at ¶¶ 6-10.
Under the circumstances, the responses of DOE's employees to the
questionnaire and the related correspondence were created for the
purpose of enabling DOE's attorneys to provide the agency with
legal advice. See Upjohn v. United States, 449 U.S. 383, 388-90,
394-95 (1981) (communications made by corporate employees to
counsel, including written questionnaires, were protected by
attorney-client privilege); Carter v. Cornell Univ., 159 F.3d 1345
(Table), 1998 WL 537842, at *2 (2d Cir. July 9, 1998); Lugosch v.
Conegel, No. Civ. 00-CV-0784, 2006 WL 931687, at *16 (N.D.N.Y.
Mar. 7, 2006).
That the documents were later used by the OYDSCS to make
policy, budget and planning decisions concerning superintendent
suspensions does not undermine defendants' assertion that the
documents were initially created for the predominant purpose of
obtaining or providing legal advice. See In re Erie, 473 F.3d at
422-23 (in holding that e-mails were sent for the predominant
purpose of soliciting or rendering legal advice, the Second
Circuit looked to the context in which the communications
involving government counsel were solicited). However, the
subsequent disclosure of the questionnaire and responses to the
OYDSCS may constitute a waiver of the privilege, as the plaintiff
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contends. Id. at 423. "The party claiming the privilege has the
burden of showing 'that the communications between client and
attorney were made in confidence and have been maintained in
confidence.'" Denney v. Jenkens & Gilchrist, 362 F. Supp. 2d 407,
412 (S.D.N.Y. 2004) (quoting In re Horowitz, 482 F.2d 72, 81-84
(2d Cir. 1973)). As the Second Circuit recognized, "[t]he general
rules governing waiver are more complicated when the issue arises
in the context of corporate entities." Doe, 219 F.3d at 183.
Thus, "[a]lthough dissemination of privileged information to third
parties generally waives attorney-client privilege, the
distribution within a corporation of legal advice received from
its counsel does not, by itself, vitiate the privilege." Strougo
v. BEA Associates, 199 F.R.D. 515, 519-20 (S.D.N.Y. 2001) (citing
Upjohn 449 U.S. at 391-92).
Courts determining whether dissemination of a document to
employees amounts to waiver of an entity's attorney-client
privilege apply "a 'need to know' standard: did the recipient need
to know the content of the communication in order to perform her
job effectively or to make informed decisions concerning, or
affected by, the subject matter of the communication?" Scholtisek
v. Eldre Corp., 441 F. Supp. 2d 459, 464 (W.D.N.Y. 2006).
Critical in such an evaluation is "the nature of the
communication, that is, whether it necessarily incorporates legal
advice." Scholtisek, 441 F. Supp. 2d at 464; Verschoth v. Time
Warner Inc., No. 00CIV1339, 2001 WL 286763, at *2 (S.D.N.Y. Mar.
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22, 2001). Here, the questionnaire and responses did not contain
legal advice. As Mr. Mulhern explains, he sought to obtain the
factual information contained in the responses to aid in making
policy, budget and planning decisions. See Mulhern Decl. at ¶ 16.
Although defendants may be correct that OYDSCS "had a 'need to
know' the content of those documents in order to effectively
perform its duties and to make informed decisions about suspension
sites," see Mem. in Opp. (ct. doc. 159) at 7, defendants do not
claim that the reason OYDSCS obtained the questionnaire and
responses was to secure or act on legal advice. See In re
Horowitz, 482 F.2d at 81 (finding waiver of privilege because
attorney-client communications were later sent to accountant "for
purposes unrelated to the seeking of legal advice"); Restatement
(Third) of Law Governing Lawyers § 73 cmt. g (2000) ("An
organization may not immunize documents and other communications .
. . circulated for a business or other nonlegal purpose"); 3 Jack
B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence
§ 503.22[4][a] (Joseph M. McLaughlin ed., 2006) (communications
distributed to employees are confidential, "provided that those
persons, because of the structure of the corporation, must know of
the communication in order to insure that full and accurate
Defendants argue that the information distributed to Mr.
Mulhern remains protected from disclosure because Mr. Mulhern's
involvement in this litigation, including settlement discussions
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with plaintiffs' counsel, brings him within the ambit of the
attorney-client privilege. However, defendants' argument is based
on the unsupported assumption that a government employee who is a
"client" for purposes of determining the scope of the attorney-
client privilege under one set of circumstances, remains the
client in all other contexts. Such a position ignores the fact
that "the relationship between a government attorney and a
government official or employee is not the same as that between a
private attorney and his client." In re Grand Jury Investigaton,
399 F.3d F.3d 527, 534 (2d Cir. 2005). Just as a government
attorney may be consulted by other employees "in a capacity other
than as a lawyer, as (for example) a policy advisor, media expert,
business consultant, banker, referee or friend . . .," Mulhern, as
the employee, may sometimes consult counsel or obtain information
from counsel, which would not constitute legal advice. In re
County of Erie, 473 F.3d at 421. In any event, since "entities
can act only through agents, . . . any privilege that attaches to
communications on corporate matters between corporate employees
and corporate counsel belongs to the corporation, not to the
individual employee." United States v. Int'l Bhd. of Teamsters,
Chauffeurs, Warehousemen and Helpers of Am., AFL-CIO, 119 F.3d
210, 215 (2d Cir. 1997) (citations omitted). Focusing on the
status of an employee vis à vis counsel at a discrete point in
time in determining whether there is waiver of the attorney-client
privilege with respect to documents created and disseminated at
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other times and for other purposes makes little sense.
Defendants' argument highlights the fact that the
"predominant purpose" test and the "need to know" standard both
utilize a functional approach in determining whether a
communication is or remains privileged. Thus, whether there is
waiver "should [also] be assessed dynamically and in light of the
advice being sought or rendered, as well as the relationship
between advice that can be rendered only by consulting the legal
authorities and advice that can be given by a non-lawyer." In re
County of Erie, 473 F.3d at 420-21. As discussed above, the
dissemination of the survey information to OYDSCS had nothing to
do with the seeking or rendering of legal advice and everything to
do with enabling that office to make more effective decisions, as
defendants admit. While Mr. Mulhern's communications with DOE's
attorneys may be privileged under other circumstances, in this
context, the dissemination of purely factual material to the
OYDSCS was not privileged.
Since the documents do not actually contain any legal advice
and OYDSCS obtained them for a non-legal purpose, the "need to
know" doctrine is inapplicable here. See Scholtisek, 441 F. Supp.
2d at 464; Verschoth, 2001 WL 286763, at *2; cf. In re Horowitz,
482 F.2d at 81. Forwarding copies of the questionnaire and
responses to the OYDSCS was incompatible with the confidential
nature of a communication to an attorney and amounts to waiver of
the privilege. See United States v. Stewart, 287 F. Supp. 2d 461,
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464 (S.D.N.Y. 2003) (holding that defendant waived attorney-client
privilege protecting e-mail to attorney by forwarding a copy of e-
mail to her daughter).
Nevertheless, the documents may be withheld from production
since defendants have met their burden of demonstrating that they
are protected as attorney work-product. Defense counsel drafted
the questionnaire and requested the defendants' responses because
of this litigation, and the related correspondence concerned the
creation of those documents. See United States v. Adlman, 134
F.3d at 1198 (work-product doctrine protects documents that were
prepared because of existing litigation). That the completed
questionnaires were later used for a purpose other than litigation
does not mean that they are not protected by the work-product
doctrine. See Adlman, 134 F.3d at 1202.
Plaintiffs argue that the responses are not entitled to work-
product protection because they were written by non-lawyers and
contained mere facts. See Reply Mem. at 11 n.7 (ct. doc. 160).
However, the work-product doctrine applies not only to documents
created by an attorney but also to documents prepared by the
client. See Lugosch v. Conegel, No. Civ. 00-CV-0784, 2006 WL
931687, at *16 (N.D.N.Y. Mar. 7, 2006); Tilberg v. Next Mgmt Co.,
No. 04CIV7373, 2005 WL 3543701, at *1 (S.D.N.Y. Dec. 28, 2005);
Bank of New York v. Meridien BIAO Bank Tanzania Ltd., No. 95 CIV.
4856, 1996 WL 490710, at *2 (S.D.N.Y. Aug. 27, 1996); Fed. R. Civ.
P. 26(b)(3) (documents prepared by or for a "party or by or for
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that other party's representative"). Although the work-product
doctrine protects the opinions, theories and strategies of an
attorney, the protection extends to facts as well. See In re
Grand Jury Subpoena Dated Oct. 22, 2001, 282 F.3d 156, 161 (2d
Cir. 2002).
Moreover, "the work-product doctrine is distinct from and
broader than the attorney-client privilege." In re Grand Jury
Proceedings, 219 F.3d 175, 182 (2d Cir. 2000) (citing Hickman, 329
U.S. at 508 and quoting Nobles, 422 U.S. at 238 & n. 11). "Unlike
the attorney-client privilege, the work-product privilege is not
necessarily waived by disclosure to any third party; rather, 'the
courts generally find a waiver of the work product privilege only
if the disclosure substantially increases the opportunity for
potential adversaries to obtain the information." Falise v.
American Tobacco Co., 193 F.R.D. 73, 80 (E.D.N.Y. 2000) (quoting
In re Pfizer Inc. Sec. Litig., No. 90 Civ. 1260, 1993 WL 561125,
at *6 (S.D.N.Y. Dec. 23, 1993)); see Tilberg, 2005 WL 3543701, at
*1; Medinol, Ltd. v. Boston Scientific Corp., 214 F.R.D. 113, 114-
15 (S.D.N.Y. 2002). The purpose of the work-product doctrine "is
to protect material for an opposing party in litigation, not
necessarily from the rest of the world generally." United States
v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1299-1300 (D.C. Cir. 1980).
Even where the attorney-client privilege has been waived,
documents "shown to others" may still be protected as attorney
work-product so long as "there was some good reason to show it."
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Adlman, 134 F.3d at 1199-1200 & n.4; see also In re Grand Jury,
219 F.3d at 190; Stewart, 287 F. Supp. 2d at 469 (holding that
defendant did not waive work-product protection by forwarding copy
of e-mail to daughter that she originally sent to her attorney).
Sharing documents with a person who has a common interest with the
disclosing party, rather than an adversarial relationship, does
not waive attorney work-product. See In re Steinhardt Partners,
L.P., 9 F.3d 230, 235-36 (2d Cir. 1993). Since OYDSCS employees
are aligned in interest with DOE and the disclosure does not
substantially increase the risk that plaintiffs would obtain the
documents, there was no waiver of attorney work-product
protection.3
Plaintiffs are unable to establish that they have substantial
need for the documents. This Court previously ordered the
production of on-site reviews of Regional Suspension Centers, on-
site reviews of Alternative Instruction Sites and on-site reviews
of Suspension Hearing Centers, conducted between 2004 and 2005.
See ct. doc. 142. Plaintiffs' expert completed inspections of
several DOE suspension sites this past school year and several
more inspections have been scheduled. Furthermore, plaintiffs'
expert will consult with DOE as to how to reform the suspension
3 Plaintiffs point out that defendants' privilege log suggests that the OLS set of completed questionnaires for certain regions shows fewer pages than the OYDSCS set for the same region. See Reply Mem. at 11 n.5. To the extent that the OYDSCS set contains additional documents that were never transmitted to OLS, those documents should be produced, if they have not yet been produced.
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sites for the new school year and will be permitted to inspect the
newly formed sites in October 2007. Critically, defendants have
already produced a compilation of the responses to the
questionnaires at issue here. See Morehead Decl., Exhs. A, B. In
light of the foregoing, plaintiffs have not demonstrated a
compelling need for the production of documents protected by the
work-product doctrine.
I reach this conclusion warily, since I recognize that a
governmental defendant's efforts in collecting data in order to
assess its legal position may sometimes coincide with its
obligation to provide information to satisfy discovery requests.
In this action, and as is all too often the case in other
litigations involving challenges to governmental policies and
practices, pertinent information sought by plaintiffs may not be
readily available or even collected by a governmental defendant in
the course of its normal operations. Sometimes, the line between
work-product and discovery obligations may intersect. However, I
have no reason to doubt the sworn statements submitted by the
defendants as to the original purpose of the questionnaire and
assume that the defendants took these measures to insure that
"legal considerations will play a role in governmental
policymaking" and that all underlying information has been
disclosed. See In re County of Erie, 473 F.3d at 422.
Nonetheless, should other facts come to light suggesting
otherwise, or should the accuracy of the survey results or its
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methodology become issues in this case, the plaintiffs may seek
reconsideration of this ruling. Cf. Doe, 350 F.3d at 302
(forfeiture of privilege justified where "it would be unfair for a
party asserting contentions to an adjudicating authority to then
rely on its privilege to deprive its adversary of access to
material that might disprove or undermine the party's
contentions").
Tracking Suggestions
As to the Tracking Suggestions, defendants have adequately
demonstrated that the document is protected by the attorney-client
privilege. According to defendants, the document contains legal
advice provided by the Corporation Counsel's Office concerning
items to consider including in the DOE's data tracking project,
which was initiated in response to this lawsuit. See Mulhern
Decl. at ¶ 9. As such, the document is a communication between
counsel and client created for the purpose of providing legal
advice. Although the document was maintained on a shared computer
folder accessible to twenty DOE employees, the system permitted
access to the folder only to employees working on the Project.
See id. at ¶¶ 7-8. Since these recommendations contained legal
advice and the employees with access to the document "needed to
know" the advice provided by the Corporation Counsel's Office for
their work on the Project, the document was kept confidential and
there is no waiver of the attorney-client privilege. See
Scholtisek, 441 F. Supp. 2d at 464; Verschoth, 2001 WL 286763, at
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*2; Bank of New York v. Meridien BIAO Bank Tanzania Ltd., No. 95
Civ. 4856, 1996 WL 474177, at *2 (S.D.N.Y. Aug. 21, 1996). Unlike
the questionnaire and responses, this document not only contains
legal advice but was disclosed to DOE employees for the purpose of
providing legal advice.
Because the Tracking Suggestions document is protected by the
attorney-client privilege, the issue of whether the attorney work-
product doctrine also applies need not be reached.
Privilege Log
Plaintiffs also argue that defendants waived their privilege
claims by submitting an inadequate privilege log and failing to
identify the nature of the privileges claimed. However, as
plaintiffs acknowledge, defendants' February 6, 2007 letter stated
that they withheld the documents "on the grounds of attorney-
client privilege and attorney work product." See Morehead Decl.,
Exh. B; Mem. in Support at 2 n.3 (ct. doc. 156-2). The
defendants' delay in producing the log was discussed at a
conference on December 14, 2006 and, after several extensions of
defendants' time to produce a log, at a conference on January 30,
2007. See minute entries for conferences held on 12/14/2006 and
1/30/07; electronic orders dated 12/15/2006, 1/11/2007 and
1/19/2007. After defense counsel described the nature and volume
of the documents sought to be withheld on privilege grounds, this
Court ruled that the defendants need not separately identify every
document on the privilege log and authorized the grouping of
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similar documents "so long as sufficient information is given to
identify the basis for the privilege, the number of documents and
the reason the documents are of the same nature." Minute entry
for 1/30/07 conference. Both the February 6, 2007 and June 2,
2006 letters described the nature and general subject matter of
the documents withheld as well as the circumstances underlying
their creation. See Morehead Decl., Exh. B. Defendants satisfied
my order, having provided descriptions sufficient to enable
plaintiffs to assess the applicability of the privileges claimed.
See Fed. R. Civ. P. 26(b)(5); Local Civil Rule 26.2(a). Although
it would have been preferable had defendants asserted their
privilege claims earlier, defendants did not waive their right to
do so. Cf. Stewart, 287 F.Supp.2d at 470 (noting that "the
current version of Rule 26.2 makes no reference to waiver").
CONCLUSION
For the foregoing reasons, plaintiffs' motion to compel is
denied.
SO ORDERED.
Dated: Brooklyn, New York September 27, 2007
/s/ MARILYN D. GO UNITED STATES MAGISTRATE JUDGE
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