United States District Court, D. Oregon, Medford Division
AUDUBON SOCIETY OF PORTLAND, an Oregon non-profit Corporation; OREGON WILD, an Oregon non-profit corporation; and WATER WATCH OF OREGON, an Oregon non-profit corporation, Plaintiffs,
RYAN ZINKE, in his official capacity as Secretary of the Interior; GREG SHEEHAN, in his official capacity as Acting Director of the U.S. Fish and Wildlife Service; and UNITED STATES FISH AND WILDLIFE SERVICE, a federal agency of the U.S. Department of the Interior, Defendants, TULELAKE IRRIGATION DISTRICT; KLAMATH WATER USERS ASSOCIATION; TULELAKE GROWERS ASSOCIATION; TALLY HO FARMS PARTNERSHIP dba WALKER BROTHERS; FOUR H ORGANICS, LLC; and WOODHOUSE FARMING AND SEED COMPANY, Intervenor-Defendants.
OPINION & ORDER
D. CLARKE UNITED STATES MAGISTRATE JUDGE.
Secretary of the Interior and the U.S. Fish and Wildlife
Service ("FWS") (collectively, "Federal
Defendants") move the Court for an order directing
Audubon Society of Portland, Oregon Wild, WaterWatch of
Oregon, the Center for Biological Diversity, and Western
Watersheds Project (collectively, "Plaintiffs") to
return a document they contend was inadvertently disclosed
and is subject to the attorney-client privilege (#86).
Plaintiffs oppose this request, arguing the document is not
privileged or, in the alternative, that Federal Defendants
have waived any privilege. For the reasons below, Federal
Defendants' motion is denied.
challenge the Record of Decision, Final Comprehensive
Conservation Plan, and Final Environmental Impact Statement
(collectively, the "Plan") prepared by Federal
Defendants. Plaintiffs allege, inter alia, that Federal
Defendants misinterpreted the Kuchel Act, a federal statutory
scheme that seeks to manage Lower Klamath, Upper Klamath,
Tule Lake, and Clear Lake National Wildlife Refuges. The act
seeks "to preserve intact the necessary existing habitat
for migratory waterfowl, " while at the same time
considering "optimum agricultural use that is
consistent" with "the major purpose of waterfowl
management[.]" 16 U.S.C. §§ 695k-l.
31, 2017, Federal Defendants first lodged the administrative
record. The parties subsequently worked privately to address
concerns regarding the administrative record's
completeness. This led Federal Defendants to file a Corrected
Administrative Record on September 11, 2017, but disputes
remained. Finally, on January 11, 2018, Federal Defendants
lodged the Second Corrected Administrative Record [CM/ECF No.
82.]. Both in this iteration of the administrative record, as
well as in the two previously filed, Federal Defendants
submitted the document bates numbered AR 050198. On March 9,
2017, FWS also disclosed AR 050198 without redaction in
response to a Freedom of Information Act ("FOIA")
request. AR 050198 is part of a seventy-page draft
of the document titled "The Kuchel Act and Management of
Lower Klamath and Tule Lake National Wildlife Refuges, "
the final version of which is found in Appendix M of the
administrative record. The final draft of this document was
incorporated into Federal Defendants' Plan, and part of
its purpose was to "articulate [FWS's]
interpretation of the Kuchel Act in a manner consistent with
the Act's language and Congress' intent[.]" AR
it is a draft, AR 050198 contains comments in the margins.
And comment "TM25" contains a statement from Tim
Mayer, a FWS supervisory hydrologist, rehashing an
interpretation of the Kuchel Act provided to him by
Solicitor's Office attorneys Steve Palmer and Barbara
Scott-Brier. As mentioned, AR 050198 is part of a
seventy-page draft document submitted to Solicitor's
Office attorneys for comment. As Federal Defendants point
out, "This seventy-page document contained eight
comments in track changes that were properly redacted on
account of containing attorney-client privileged information,
and was accordingly placed on the privilege log that was
filed with the Court." Fed. Defs.' Mot., at 2-3. AR
050198 was included in Federal Defendants' privilege log;
however, unlike the eight comments mentioned above, comment
TM25 was included without redaction in all three versions of
the administrative record, as well as in response to the FOIA
Defendants maintain that these disclosures were inadvertent;
in fact, they note that they were unaware of the disclosure
until an attorney for Plaintiffs notified them of the
potential inadvertent disclosure. And, Federal Defendants
state, they immediately moved to rectify the error and
notified Plaintiffs of their intent to file a motion to
compel return of the document.
their motion, Federal Defendants contend that Mr. Mayer's
inadvertently disclosed comment is protected by the
attorney-client privilege and that, despite the disclosure,
this privilege has not been waived. Accordingly, Federal
Defendants ask the Court to order the document returned
pursuant to Fed.R.Evid. 502(b); they further request that the
Court allow them to replace the inadvertently disclosed
version with a redacted version, excluding the
attorney-client-protected material-namely, the last paragraph
of comment TM25.
advance numerous arguments in response. Specifically, they
maintain that (1) nothing contained within AR 050198 is
privileged attorney-client communications; (2) Federal
Defendants waived the attorney-client privilege by disclosing
the document in response to a FOIA request; (3) Federal
Defendants have failed to carry their burden to demonstrate
the disclosure was inadvertent, as they disclosed it on
multiple occasions; (4) Federal Defendants did not take
reasonable steps to prevent disclosure; (5) Federal
Defendants unduly delayed in rectifying the error; (6)
Federal Defendants' proposed redaction is too broad and
seeks to redact unprivileged information; and (7) Federal
Defendants waived any privilege because they voluntarily and
intentionally disclosed other, related attorney-client
communications and the comment at issue here should in
fairness be considered together with the voluntarily
Whether comment TM25 is protected by the attorney-client
discussed, Federal Defendants argue comment TM25 is protected
from disclosure pursuant to the attorney-client privilege.
Plaintiffs maintain, however, that Federal Defendants have
failed to carry their burden of establishing that each
element of the privilege applies to the comment. In
particular, Plaintiffs aver that Federal Defendants have not
shown the comment was made in confidence.
Court finds that an attorney-client relationship exists but
that Federal Defendants have failed to demonstrate the
communication at issue was made in confidence. "The
attorney-client privilege is the oldest of the privileges for
confidential communications known to the common law."
Upjohn Co. v. United States, 449 U.S. 383, 389
(1981) (internal citation omitted). The important
justification for its existence "is to encourage full
and frank communication between attorneys and their clients
and thereby promote broader public interests in the
observance of law and administration of justice."
Id. "Because it impedes the full and free
discovery of the truth, " however, "the
attorney-client privilege is strictly construed, " and
"[t]he party asserting the privilege bears the burden of
proving each essential element." United States v.
Ruehle, 583 F.3d 600, 607-08 (9th Cir. 2009) (internal
quotation and citation omitted). In determining whether
information is covered by the attorney-client privilege, the
Ninth Circuit employs an eight-part test:
"(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or ...