A.N.S.W.E.R. v. Norton ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
A.N.S.W.E.R. COALITION, )
)
Plaintiff, )
)
v. ) Civil Action No. 05-0071 (PLF)
)
SALLY JEWELL, )
1
Secretary of the Interior, et al., )
)
Defendants. )
__________________________________________)
OPINION AND ORDER
This matter is before the Court on plaintiff’s objections to Magistrate Judge Alan
Kay’s decisions regarding the nondisclosure by the United States Secret Service of certain
documents during discovery. Plaintiff contends that the Court should set aside certain portions
of Judge Kay’s February 3, 2012 Memorandum Order and his September 27, 2012 Memorandum
Order as clearly erroneous and contrary to law. See FED. R. CIV. P. 72(a). After careful
consideration of the parties’ memoranda, Judge Kay’s decisions, this Court’s own in camera
review of the disputed documents, and the relevant legal authorities, the Court concludes that
Judge Kay’s privilege and relevance rulings are correct, although the Court disagrees with one
aspect of Judge Kay’s reasoning. The Court therefore will overrule in part and sustain in part
plaintiff’s objections.2
1
Sally Jewell, the current Secretary of the Interior, has been substituted for former
secretary Ken Salazar, and Julia A. Pierson, the current Director of the Secret Service, has been
substituted for former director Mark Sullivan. See FED. R. CIV. P. 25(d).
2
The papers reviewed in connection with the pending motions include the
following: Judge Kay’s Memorandum Order, Dkt No. 131 (Feb. 3, 2012) (“Feb. 3 Mem.
I. BACKGROUND
Plaintiff A.N.S.W.E.R. (Act Now to Stop War and End Racism) Coalition
(“ANSWER”) filed this lawsuit in January 2005 to challenge certain governmental policies that
have restricted ANSWER’s ability to engage in expressive activity during the Presidential
Inaugural Parades in Washington, D.C. One of these policies – and the only policy relevant to
the matter now before the Court – is the Secret Service’s prohibition on sign supports along the
Inaugural Parade Route.
This Court granted ANSWER’s request for Rule 56(f) discovery (now Rule
56(d)) for the production of all documents relating to the prohibition of sign supports by the
Secret Service. See Order, Dkt. No. 56 (Nov. 13, 2007); Memorandum Opinion and Order, Dkt.
No. 75 (Nov. 14, 2008). During the discovery that followed, ANSWER challenged the
government’s withholding of certain documents as privileged, and the Court agreed to review the
disputed documents in camera. See Memorandum Opinion and Order, Dkt. No. 104 at 3 (Apr.
23, 2010). On August 3, 2010, the Court referred the matter to Magistrate Judge Alan Kay to
conduct the in camera review. See Referral Order, Dkt. No. 117 (Aug. 3, 2010). Judge Kay
issued his privilege rulings for most of the documents on the Secret Service’s 27-page privilege
log on February 3, 2012, and directed counsel for the Secret Service to provide him with certain
Order”); plaintiff’s objections to the February 3 Memorandum Order, Dkt. No. 141 (March 12,
2012) (“Pl.’s 1st Obj.”); defendant’s opposition to plaintiff’s first objections, Dkt. No. 151 (Apr.
11, 2012) (“Def.’s 1st Opp’n”); plaintiff’s reply in support of its first objections, Dkt. No. 156
(Apr. 30, 2012) (“Pl.’s 1st Reply”); Judge Kay’s Memorandum Order, Dkt. No. 160 (Sept. 27,
2012) (“Sept. 27 Mem. Order”); plaintiff’s objections to the September 27 Memorandum Order,
Dkt. No. 161 (Oct. 15, 2012) (“Pl.’s 2nd Obj.”); defendant’s opposition to plaintiff’s second
objections, Dkt. No. 163 (Nov. 6, 2012) (“Def.’s 2nd Opp’n”); and plaintiff’s reply in support of
its second objections, Dkt. No. 164 (Nov. 16, 2012) (“Pl.’s 2nd Reply”).
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other missing documents. See Feb. 3 Mem. Order. Judge Kay addressed the remaining
documents in a decision dated September 27, 2012. See Sept. 27 Mem. Order.
ANSWER timely filed objections “in general and categorically” to Judge Kay’s
orders on the ground that Judge Kay failed to state his reasoning with respect to each document.
See Pl.’s 1st Obj. at 2; Pl.’s 2nd Obj. at 1. ANSWER does not ask this Court, however, to
review de novo every document withheld by the Secret Service. Rather, ANSWER has
identified certain privilege and relevance determinations within each of Judge Kay’s orders to
which it specifically objects.
First, ANSWER asserts that Judge Kay erred in approving the withholding of the
following documents, in whole or in part, on the basis of attorney-client privilege: Bates Nos.
000185, 000186, 000191, 000316, 000537, 000562, 000563, 000566, and 000588. See Pl.’s 1st
Obj. at 2 n.2, 17-19. Second, ANSWER maintains that Judge Kay erred in deeming the
following documents protected, in whole or in part, as attorney work product: Bates Nos.
000174, 000175-80, 000183, and 000326. Id. at 2 n.2, 21-26. Third, ANSWER challenges
Judge Kay’s ruling that the law enforcement privilege protects the following documents from
compelled disclosure: 000668, 000682, 000726, 000734-35, 000740, 000750, 000795-97. Pl.’s
2nd Obj. at 1-2. Fourth, ANSWER asserts that Judge Kay erred in ruling that the document
marked “Withheld 74-84” was properly withheld as nonresponsive. Id. ANSWER requests that
the Court conduct an in camera review of these four categories of withheld documents and order
their production.
In addition, ANSWER asks the Court to order that all remaining withheld
documents be reviewed and produced in accordance with the principles articulated in any
opinion issued in response to these objections. Pl.’s 1st Obj. at 2.
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II. DISCUSSION
A. Standard of Review
When a party objects to a magistrate judge’s determination with respect to a non-
dispositive matter, such as the privilege and relevance determinations made in this case, the
Court must modify or set aside all or part of the magistrate judge’s order if it is “clearly
erroneous” or “contrary to law.” FED. R. CIV. P. 72(a); see also LOC. CIV. R. 72.2(c). This
standard is met when, “although there is evidence to support [a determination], the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake has been
committed.” Federal Savs. & Loan Ins. Corp. v. Commonwealth Land Title Ins. Co., 130 F.R.D.
507, 508 (D.D.C. 1990) (internal quotation omitted); see also Beale v. Dist. of Columbia, 545 F.
Supp. 2d 8, 13 (D.D.C. 2008).
B. Documents Withheld Pursuant to the Attorney-Client Privilege
“The attorney-client privilege protects confidential communications made
between clients and their attorneys when the communications are for the purpose of securing
legal advice or services.” Blumenthal v. Drudge, 186 F.R.D. 236, 241 (D.D.C. 1999) (quoting In
re Lindsey, 158 F.3d 1263, 1267 (D.C. Cir. 1998)); see also Feb. 3 Mem. Order at 2-3. The D.C.
Circuit construes the privilege narrowly to apply when a communication “relates to a fact of
which the attorney was informed . . . by his client . . . for the purpose of securing primarily
either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding.’” In
re Grand Jury, 475 F.3d 1299, 1304 (D.C. Cir. 2007) (alteration in original) (quoting In re Sealed
Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984)). The privilege also protects a communication made
by an attorney to a client if the communication is “based, in part at least, upon a confidential
4
communication to the lawyer from the client.” United States v. Naegele, 468 F. Supp. 2d 165,
169 (D.D.C. 2007) (quoting In re Sealed Case, 737 F.2d at 99) (emphasis in original) (internal
brackets omitted).
Although all of the documents withheld by the Secret Service pursuant to this
privilege involve a communication to or from an attorney, ANSWER contends that the
government has failed to show that the communications reflect an attorney-client relationship, or
that they relate to the provision of legal services or advice. See Pl.’s 1st Obj. at 8, 10-19; Pl.’s
1st Reply at 3-5. Specifically, ANSWER asserts that the relevant attorneys – Anne Rowland,
legal counsel to the Secret Service, and Assistant United States Attorney Marina Braswell,
responsible for litigating this case on behalf of all the defendants – were acting in regulatory or
policy-making roles, rather than as attorneys providing legal advice to an agency client. See
Pl.’s 1st Obj. at 8, 10-12; Pl.’s 1st Reply at 3-5.
As this Court previously has noted, “communications made by and to [an] in-
house lawyer with respect to business matters, management decisions or business advice are not
protected by the [attorney-client] privilege.” Minebea Co., Ltd. v. Papst, 228 F.R.D. 13,
21 (D.D.C. 2005) (quoting Boca Investering P’ship v. United States, 31 F. Supp. 2d 9, 11-12
(D.D.C. 1998)); see also Feb. 3 Mem. Order at 4-5. Similarly, when a government attorney
“act[s] more in the nature of a business advisor, legislator, adjudicator, or regulator, the attorney-
client privilege generally does not apply.” General Elec. Co. v. Johnson, Civ. Action No.
00-2855, 2006 WL 2616187, at *16 (D.D.C. Sept. 12, 2006) (collecting cases); see also Nat’l
Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 360-61 (2d Cir. 2005) (deeming attorney-
client privilege inapplicable to legal memorandum adopted as or incorporated into agency
policy). A communication by an attorney working for a government agency is protected,
5
however, when the communication “relate[s] to some legal strategy, or to the meaning,
requirements, allowances, or prohibitions of the law.” General Elec. Co. v. Johnson, 2006 WL
2616187, at *15.
The Court has carefully reviewed the documents withheld on the basis of the
attorney-client privilege and concludes that Ms. Rowland and Ms. Braswell were not acting as
regulators; nor were they simply providing “neutral, objective analyses of agency regulations.”
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980). Rather, it is
apparent from the documents and their contents that the attorneys were acting “within the bounds
of the privileged attorney-client relationship” in “weigh[ing] the legal risks associated with
certain undertakings” and working to “tailor those undertakings to the requirements of the law.”
General Elec. Co. v. Johnson, 2006 WL 2616187, at *16.3 The Court therefore concludes that
Bates Nos. 000185, 000186, 000191, 000537, 000562, 000563, 000566, and 000588 are properly
redacted or withheld under the attorney-client privilege.
With respect to Bates No. 000316, ANSWER characterizes this document as an
attorney-to-attorney communication (Ms. Rowland to Ms. Braswell) “which was forwarded to an
agency official” and “[a]s such, even facially . . . does not fall within the attorney-client
privilege.” See Pl.’s 1st Obj. at 19. ANSWER neglects to note that the agency official, Tim
Foley, is an attorney himself. See Supp. Discovery Doc. Priv. Log, Dkt. No. 152 Ex. 2 at
CPLrev-02 (describing Foley as a Secret Service “Agent Attorney”). Moreover, it appears that
3
ANSWER also suggests that the Secret Service did not specify the individual
recipients of Bates Nos. 000006-65, 000273-74, 000275-81, and 000282-87, thereby failing to
meet the Secret Service’s burden “to demonstrate that confidentiality was expected in the
handling of these communications” in order to invoke the attorney-client privilege. See Pl.’s 1st
Obj. at 16 (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d at 863). These
documents, however, were not withheld as privileged attorney-client communications, but rather
were withheld under the law enforcement privilege or as non-responsive.
6
this document from Ms. Rowland was forwarded to Mr. Foley – who, in the circumstances, was
the representative of the client – in order “to apprise [him] of the legal advice sought and
received.” See Feb. 3 Mem. Order at 5 (quoting In re Vioxx Products Liability Litig., 501 F.
Supp. 2d 789, 810 (E.D. La. 2007)). It therefore is protected by the attorney-client privilege.
Having identified no error in Judge Kay’s reasoning or conclusions, the Court will
overrule ANSWER’s objections to Judge Kay’s determinations relating to the attorney-client
privilege.
C. Documents Withheld as Attorney Work Product
The attorney work product rule “protects from disclosure any material prepared
by or for a party or its attorney or by or for a party’s representative in anticipation of litigation.”
Hertzberg v. Veneman, 273 F. Supp. 2d 67, 75 (D.D.C. 2003); see also Feb. 3 Mem. Order at
5-7; FED. R. CIV. P. 26(b)(3). “While litigation need not be imminent or certain in order to
satisfy the anticipation-of-litigation prong of the test, this circuit has held that ‘at the very least
some articulable claim, likely to lead to litigation, must have arisen,’ such that litigation was
‘fairly foreseeable at the time’ the materials were prepared.” Hertzberg v. Veneman, 273 F.
Supp. 2d at 75 (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d at 865).
ANSWER asserts that certain emails withheld or redacted as attorney work
product – Bates Nos. 000174, 000175-80, and 000183 – could not possibly have been prepared
in anticipation of litigation or for trial, as these communications were sent in December 2004,
before this action had been filed. See Pl.’s 1st Obj. at 20. The Secret Service responds that the
documents themselves show that “the government attorneys working on this issue obviously
7
knew that there would be a challenge to any action involving restrictions on facilitative conduct
connected to First Amendment activity.” Def.’s 1st Opp’n at 17-18.
The Court rejects ANSWER’s contention that the documents cannot be protected
as attorney work product simply because the present litigation had not yet commenced. Not only
was such litigation “fairly foreseeable,” but the possibility of litigation is explicitly discussed in
these documents.4
As for ANSWER’s objection to Judge Kay’s ruling with respect to Bates No.
000326, ANSWER does not contest the claim that the withheld material constitutes attorney
work product. This document consists of an email exchange between Anne Rowland and
intelligence research specialist Zachary Ainsworth, dated January 15 and January 16, 2005. In
the unredacted portion of this document, Mr. Ainsworth states: “Sticks can be used to pry up
cobbles, planters, etc.,” referring to an image attached to the original email. The redacted portion
contains two emails: Ms. Rowland’s request for more information about the attached image, and
Mr. Ainsworth’s communication of this information. ANSWER itself notes that these emails,
sent in the days immediately following the filing of this lawsuit, “appear to be prepared in
anticipation of – and, indeed in specific response to – litigation . . . over the sign support issue.”
Pl.’s 1st Obj. at 26. Upon reviewing the redacted material, the Court agrees that this
communication constitutes attorney work product, as it involves an attorney working with an
employee of her agency client on a theory of defense in the present litigation.
ANSWER contends, however, that the work product rule embodies only a
qualified privilege, and that ANSWER has a “substantial need for the information” redacted
4
In addition, Judge Kay concluded that Bates No. 000174 was subject to the
attorney-client privilege. See Feb. 3 Mem. Order at 14. ANSWER has not contested this
determination.
8
from Bates No. 000326 because the redacted material may relate to “post-hoc rationalizations
being presented in Court by the Government as purported security justifications for the ban.”
Pl.’s 1st Obj. at 20, 26. But this assertion is not enough to satisfy the burden of “the one who
would invade [the] privacy” of the work product privilege to present sufficient reasons to compel
production. United States v. Deloitte LLP, 610 F.3d 129, 135 (D.C. Cir. 2010) (quoting
Hickman v. Taylor, 329 U.S. 495, 512 (1947)); see FED. R. CIV. P. 26(b)(3). Upon review of the
document, the Court finds that the redacted material provides no substantive information about
the Secret Service’s “purported security justifications” for the sign prohibition, nor does it
contain evidence of a post-hoc rationalization. Rather, the redacted material merely contains a
statement of fact about the image attached to an unredacted email. As such, ANSWER has not
shown, and the Court does not perceive, adequate reasons to compel production through court
order.
Finding no error, the Court will overrule ANSWER’s objections to Judge Kay’s
determinations relating to attorney work product.
D. Documents Withheld Pursuant to the Federal Law Enforcement Privilege
The federal law enforcement privilege is a qualified privilege that allows for the
nondisclosure “of information that would be contrary to the public interest in the effective
functioning of law enforcement.” Tuite v. Henry, 181 F.R.D. 175, 176 (D.D.C. 1998). It serves
to protect “the integrity of law enforcement techniques and confidential sources, protects
witnesses and law enforcement personnel, safeguards the privacy of individuals under
investigation, and prevents interference with investigations.” Id. at 176-77. In the D.C. Circuit,
the government may invoke the law enforcement privilege by presenting a formal claim of
9
privilege by the head of the relevant law enforcement agency, after actual personal consideration
by that individual, with a detailed explanation of the information withheld and the privilege’s
applicability to that information. Landry v. F.D.I.C., 204 F.3d 1125, 1135 (D.C. Cir. 2000)
(citing In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988)).
The Secret Service withheld or redacted several documents on the basis of this
privilege, including portions of its Presidential Advance Manual, see Bates Nos. 000668,
000682, 000726, 000734-35, 000740, and 000750, and portions of a powerpoint presentation
entitled “JFT-AFIC J-G Verizon/Parade Route Coordination Meeting,” Bates Nos. 000795-97.
The Secret Service maintains that the Presidential Advance Manual contains information on
“protective equipment and methodology,” “protective communication means,” “information
regarding motorcade alignment and duties of agent personnel in motorcade,” and “protective
communication signal.” Supp. Discovery Doc. Priv. Log, Dkt. No. 152 Ex. 2 at CPLrev-15. The
Secret Service asserts that the redacted portions of the powerpoint “pertain to security
preparations and information regarding potential vulnerabilities regarding [the] parade route” and
“the location of a law enforcement command post,” and “do not pertain to the admission or
prohibition of items into the Inaugural parade route.” See id. at CPLrev-17.
Although the Secret Service has properly presented a formal claim of law
enforcement privilege, ANSWER correctly notes that because the privilege is a qualified one, the
“public interest in nondisclosure must be balanced against the need of a particular litigant for
access to the privileged information.” Tuite v. Henry, 98 F.3d 1411, 1418 (D.C. Cir. 1996)
(quoting In re Sealed Case, 856 F.2d at 272). As noted by Judge Kay, the D.C. Circuit has
identified the following ten factors “as illustrative of the factors the district court must consider”
in balancing these interests:
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(1) the extent to which disclosure will thwart governmental
processes by discouraging citizens from giving the government
information; (2) the impact upon persons who have given
information of having their identities disclosed; (3) the degree to
which governmental self-evaluation and consequent program
improvement will be chilled by disclosure; (4) whether the
information sought is factual data or evaluative summary;
(5) whether the party seeking discovery is an actual or potential
defendant in any criminal proceeding either pending or reasonably
likely to follow from the incident in question; (6) whether the
police investigation has been completed; (7) whether any inter-
departmental disciplinary proceedings have arisen or may arise
from the investigation; (8) whether the plaintiff’s suit is non-
frivolous and brought in good faith; (9) whether the information
sought is available through other discovery or from other
sources[; and] (10) the importance of the information sought to the
plaintiff’s case.
In re Sealed Case, 856 F.2d at 272 (quoting Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.
Pa. 1973)); see also Feb. 3 Mem. Order at 7-8.
After reviewing the withheld documents, Judge Kay found that the relevant
Frankenhauser factors weigh in favor of nondisclosure. In his analysis, however, Judge Kay
drew an analogy between this dispute and the facts in McNamara v. City of New York (In re
City of New York), 607 F.3d 923 (2d Cir. 2010), in which the Second Circuit concluded that the
law enforcement privilege protected intelligence reports prepared by undercover police officers
who had investigated potential security threats prior to a political convention. Id. at 943-47; see
also Feb. 3 Mem. Order at 8. ANSWER asserts that in following McNamara, Judge Kay
erroneously applied the Second Circuit’s “strong presumption” against disclosure, a presumption
that has never been adopted by our circuit. See Pl.’s 1st Obj. at 27-29; Pl.’s 2nd Obj. at 1-2.
ANSWER is correct that the Second Circuit’s standard is distinct from the
standard articulated in this circuit. In the Second Circuit, once a party has invoked the law
enforcement privilege, the party opposing the privilege must overcome the “strong presumption
11
against disclosure” by demonstrating that its suit is in good faith, the information sought is
otherwise unavailable, and the party has a “compelling need” for the information. McNamara v.
City of New York, 607 F.3d at 945; see also Dorsett v. County of Nassau, 762 F. Supp. 2d 500,
522 (E.D.N.Y. 2011) (applying presumption). Only after the party overcomes this “strong
presumption” does the Second Circuit apply the ten-factor balancing test discussed above.
McNamara v. City of New York, 607 F.3d at 945.
By contrast, the D.C. Circuit has not recognized any strong presumption against
disclosure, and the district courts in this circuit generally have conducted the balancing test,
weighing the relevant Frankenhauser factors, “with an eye toward disclosure.” Tuite v. Henry,
181 F.R.D. 175, 177 (D.D.C. 1998) (Lamberth, J.); see also Singh v. South Asian Soc’y of the
George Washington Univ., Civ. Action No. 06-0574, 2007 WL 1556669, at *5 (D.D.C. May 24,
2007) (Collyer, J.) (applying no presumption of nondisclosure). The portion of Judge Kay’s
analysis that applies a “strong presumption against disclosure” therefore is erroneous.
ANSWER has requested that the Court review certain of the documents withheld
under the law enforcement privilege, see Bates Nos. 000668, 000682, 000726, 000734-35,
000740, 000750, 000795-97, and order that the remaining documents be reviewed and produced
consistent with the principles articulated in any rulings made after such review. Pl.’s 1st Obj. at
2. Because Judge Kay may have adopted a presumption against disclosure, the Court agrees that
an additional review of the remaining documents is appropriate. Rather than initiating a second
round of review and production by the Secret Service and then by Judge Kay, however, the Court
has independently reviewed in camera the full set of documents that Judge Kay deemed
protected by the law enforcement privilege.
12
On a de novo review of all documents withheld under the law enforcement
privilege, including those documents specified in the preceding paragraph and in footnote three,
and upon consideration of the relevant legal factors, without reliance on the Second Circuit’s
“strong presumption,” this Court concludes that Judge Kay reached the right result: the law
enforcement privilege in fact does protect each of these documents. The withheld information
does not relate to materials banned along the parade route, but rather pertains to staffing
protocols, the use of certain technological equipment, the geographic locations of security
facilities, and the email addresses and telephone numbers of security personnel. Therefore, at
least three factors weigh heavily against disclosure. First, the withheld documents are at most
marginally relevant to ANSWER’s claim. Second, as the Secret Service correctly maintains, the
production of the withheld material “would disclose law enforcement techniques,” and
“[d]isclosure of the . . . information could forewarn potential attackers by providing them with
sensitive information that could be utilized to circumvent law enforcement efforts.” See Def.’s
2nd Opp. at 6-7 (quoting Declaration of Nicolas Trotta, Dkt. No. 163 Ex. 3 at 2, 4). Third,
compelling production of security documents such as these likely would chill governmental self-
evaluation and consequent program improvement in this area.
As to other of the Frankenhauser factors, clearly this lawsuit is non-frivolous and
has been brought in good faith. Furthermore, the withheld information does not pertain to the
investigation or arrest of any particular individuals; so there is little risk that disclosure will
discourage citizens from cooperating in an investigation or violate the privacy rights of particular
persons, other than security personnel. But balanced against the minimal relevance of these
documents to ANSWER’s claims, the security risk presented by disclosure, and the possible
chilling effect, these pro-disclosure factors do not carry the day.
13
The Court will sustain in part and overrule in part ANSWER’s objections to
Judge Kay’s privilege determinations relating to the law enforcement privilege. It will affirm
Judge Kay’s designation of these documents as protected by the law enforcement privilege, but
will do so on different grounds from those articulated in Judge Kay’s decisions. See Feb. 3
Mem. Order at 10-25; Sept. 27 Mem. Order at 1-2. The Court will set aside the reasoning therein
pertaining to the strong presumption against disclosure. See Feb. 3 Mem. Order at 8-9; Sept. 27
Mem. Order at 1-2 (applying legal standards set forth in Feb. 3 Mem. Order).
E. Document Withheld as Not Relevant
ANSWER objects to the withholding of the document entitled “Standard
Operating Procedures for Screening Persons and Property, Parade Security,” numbered as
“Withheld 74-84.” Pl.’s 2nd Obj. at 1, 3-5; see Sept. 27 Mem. Order at 1-2. ANSWER asserts
that the document is relevant because it discusses “what items were to be included or permitted,
excluded or screened out or searched for at the checkpoint.” Pl.’s 2nd Obj. at 4. This draft
document, however, was prepared by the Transportation Security Administration – not by the
Secret Service – and the Secret Service represents that it was not used by the Secret Service with
respect to its ban on sign supports. See Def.’s 2nd Opp. at 9-10. After examining the document,
the Court agrees that it is not relevant to ANSWER’s claims. The Court therefore will overrule
ANSWER’s objection to Judge Kay’s relevance determination.
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F. Request for Additional Review
ANSWER has requested that “the remainder of all documents under review by the
Magistrate Judge be reviewed and produced consistent with the principles articulated in any
opinion to issue in response to these objections.” Pl.’s 1st Obj. at 2. The Court finds no error in
either Judge Kay’s analysis or his conclusions relating to the attorney-client privilege, attorney
work product, or relevance. It therefore declines to order, or undertake itself, an additional
review of the remaining documents withheld on these grounds. As discussed above, because the
Court did detect error in one portion of Judge Kay’s analysis of the law enforcement privilege,
the Court has conducted an independent review of all documents that he deemed protected by
this privilege. An additional review of these documents by the Secret Service or Judge Kay
therefore is unnecessary.
For the foregoing reasons, it is hereby
ORDERED that plaintiff’s objections are overruled in part and sustained in part; it
is
FURTHER ORDERED that the Court affirms in part and sets aside in part
Magistrate Judge Kay’s February 3, 2012 decision [131]; it is
FURTHER ORDERED that the Court affirms in part and sets aside in part
Magistrate Judge Kay’s September 27, 2012 decision [160]; it is
FURTHER ORDERED that plaintiff’s request that defendant Secret Service be
compelled to produce certain documents (Bates Nos. 000174, 000175-80, 000183, 000185,
000186, 000191, 000316, 000326, 000537, 000562-63, 000566, 000588, 000668, 000682;
000726, 000734, 000735, 000740, 000750, and 000795-000797; and Withheld 74-84) is
DENIED; and it is
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FURTHER ORDERED that plaintiff’s request that the remainder of documents
that Judge Kay deemed properly withheld be subjected to an additional review is DENIED.
SO ORDERED.
/s/______________________
PAUL L. FRIEDMAN
DATE: May 16, 2013 United States District Judge
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