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Audubon Society of Portland v. Zinke

United States District Court, D. Oregon, Medford Division

March 27, 2018

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


         The 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.


         Plaintiffs 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.

         On May 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.[1] 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 015241.

         Because 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 request.

         Federal 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.

         In 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.

         Plaintiffs 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 disclosed communications.


         I. Whether comment TM25 is protected by the attorney-client privilege

         As 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.

         The 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 ...

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