MEMORANDUM FOR: Personnel Law Staff
FROM: Anthony J. De Marco, Deputy Assistant General Counsel for Personnel Law
SUBJECT: DISCOVERY PRIVILEGES
Rule 26(b)(1), Fed. R. Civ. P., provides that discovery may be had regarding any matter not privileged. Rule 26(b)(5) requires that the party asserting a privilege must make the claim expressly and describe the nature of the documents, communications or things not produced or disclosed in a manner that without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. Withholding materials without providing the information required by Rule 26(b)(5) subjects the attorney to sanctions under Rule 37(b)(2) and may be viewed as a waiver of the privilege or protection.
The privileges were once sought to be codified in Rules 501-510, of the Federal Rules of Evidence (FRE), but Congress declined to adopt them. See Advisory Committee Notes to 1974 enactment. While these privileges were not adopted, Rule 501, as adopted, Pub. L. 93-595, '1, states:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State or political subdivision thereof shall be determined in accordance with State law.
Federal courts therefore have the flexibility to adopt new common law privileges, on a case by case basis, pursuant to Rule 501, FRE. Jaffee v. Redmond, 116 S.Ct. 1923 (1996) (adopting psychotherapist-patient privilege in Federal civil cases); see, University of Pa. v. EEOC, 493 U.S. 182, 189, 110 S.Ct. 577, 582 (1990) (declining to adopt a privilege for peer review in an employment discrimination context). The privileges available are set forth below. Obviously, some are more useful than others in the context of Federal employment matters.
1. Required reports privileged by statute, e.g.,:
a. 5 U.S.C. '552a (Privacy Act, covering systems of records kept by the Federal government and accessible by a personal identifier, but many exemptions).
b. 5 U.S.C. '7362 and 42 U.S.C. '290dd-3 (confidentiality of medical records concerning alcoholism, alcohol abuse and treatment).
c. 13 U.S.C. '9 (prohibiting disclosure of census information.
d. 26 U.S.C. '6103 (income tax returns)
e. 42 U.S.C. 2000e-5(b), -5(e) and -8(e) (prohibiting disclosure of charges, investigations conciliation efforts and statistical reports of individual companies).
f. 42 U.S.C. '2240 (reports of incidents at nuclear facility licensees inadmissible in certain actions).
g. 42 U.S.C. '3610(d)(1) (prohibiting disclosure of conciliation efforts, but not the agreement, unless confidentiality is specified in the agreement).
h. 45 U.S.C. '33, 41 (similar reports of accidents by railroads).
2. Attorney-client privilege. See Upjohn Co., et al. v. United States, et al., 449 U.S. 383, 101 S.Ct. 677 (1981)(discussing privilege in the corporate context); CFTC v. Weintraub, 471 U.S. 343, 105 S.Ct. 343 (1985) (discussing who can waive the privilege); U.S. v. Zolin, 491 U.S. 562, 109 S.Ct. 2619, 2626 (1989); In Re Grand Jury Proceedings, 43 F.3d 966, 970 (5th Cir. 1994); McKenzie v. McCormick, 27 F.3d 1415, 1420 (9th Cir. 1994). This privilege may exist between two Federal agencies. Thill Securities Corp. v. New York Stock Exchange, 57 FRD 133 (E.D. Wis. 1972). However, the confidentiality of communications covered by a privilege must be jealously guarded by the holder of the privilege lest it be waived. In Re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989). See, Gray v. Bicknell, 86 F.3d 1472, 1483-84 (8th Cir. 1995), for discussion of approaches to waiver of attorney client privilege. A party may overcome the privilege when it can demonstrate that the crime/fraud exception applies. In Re: Sealed Case, __F.3d__ (D.C. Cir. March 4, 19977, No. 96-3085). That exception applies where: 1) the client made or received an otherwise privileged communication with the intent to further an unlawful or fraudulent act and 2) the client must have carried out the crime or fraud. Ibid.
3. Joint Defense Privilege (multiparty litigation). This privilege is an extension of the attorney-client privilege. The doctrine provides that communications between and among persons and their respective legal counsel, who share a common interest in presenting or defending a claim, are protected from disclosure. The party asserting this privilege must establish all of the elements of the attorney-client privilege and the additional requirement that the communication in question was made in the course of a common effort and to further a common interest. In Re Grand Jury Subpoenas, 89-3 and 89-4, 902 F.2d 244 (4th Cir. 1990); United States v. Schwimmer, 892 F.2d 237 (2d Cir. 1989), cert. denied, 502 U.S. 810 (1990); United States v. Lopez, 777 F.2d 543 (10th Cir. 1985) (waiver of privilege); United States v. McPartlin, 595 F.2d 1321 (7th Cir.), cert. denied, 444 U.S. 833 (1979) (whether legal interests must be identical or only compatible); Continental Oil Co. v. United States, 330 F.2d 347 (9th Cir. 1964).
4. Deliberative process privilege (intergovernmental opinions and recommendations submitted in the performance of decisional or policymaking functions). Freeman v. Seligson, 405 F.2d 1326 (D.C. Cir. 1968); Davis v. Braswell Motor Freight Lines, Inc., 363 F.2d 600 (5th Cir. 1966); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 FRD 318 (D.D.C. 1966); aff'd per curiam sub nom. V.E. B. Carl Zeiss, Jena v. Clark, 384 F.2d 979 (D.C. Cir. 1966), cert. denied, 389 U.S. 952 (1967); Machin v. Zuchert, 316 F.2d 336 (D.C. Cir.), cert denied, 375 U.S. 896 (1963); Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. 939 (Ct.Cl. 1958); see, Ackerly v. Ley, 420 F.2d 1336 (D.C. Cir. 1969). (consistent with fifth exemption of Freedom of Information Act, 5 U.S.C. '552(b)(5)). This privilege must be invoked by the head of the agency. See, Thill, supra. The bank examiner qualified privilege is also included within the deliberative process privilege. In Re: Supoena Served Upon the Comptroller of the Currency and the Secretary of the Bd. of Governors of the Federal Reserve System, __F.2d __(D.C. Cir. 1992).
5. Executive Privilege (Presidential communications). United States v. Nixon, 418 U.S. 708, 94 S.Ct. 3090 (1974); In Re: Sealed Case, __F.3d__(D.C. Cir. June 17, 1997, No. 96-3124)(detailing explanation and history of Presidential Communications privilege and distinguishing it from deliberative process privilege).
6. Jenks Act, 18 U.S.C. '3500. Usually, in criminal cases, statements or reports in possession of U.S. made by a Government witness shall not be subject to a subpoena, discovery or inspection until the witness has testified on direct examination at trial. However, some agencies utilize the procedures of the Jenks Act in civil matters before an ALJ. See, e.g., 7 C.F.R. '1.141(g)(1)(iii). What is covered by the Jenks Act and its purpose are discussed in such cases as: Norisberg Corp. v. United States Dept. of Agriculture, 47 F.3d 1224 (D.C. Cir. 1995), cert. denied, 116 S.Ct. 474; Blackfoot Livestock Com'n v. USDA, 810 F.2d 916 (9th Cir. 1987); United States v. Carrasco, 537 F.2d 372 (9th Cir. 1981); United States v. Prieto, 505 F.2d 8 (5th Cir. 1974).
7. Identity of informer, civil cases. Dole v. Local 1942, IBEW, 870 F.2d 368 (7th Cir. 1989) (good discussion); Wirtz v. Continental Finance and Loan Co., 326 F.2d 561 (5th Cir. 1964); Wirtz v. B.A.C. Steel Products, Inc., 312 F.2d 14 (4th Cir. 1962); Mitchell v. Roma, 265 F.2d 633 (3d. Cir. 1959). But note, only the identity of the informer is privileged, not the communication itself, unless disclosure would operate to disclose the informer's identity. Brock v. On Shore Quality Control Specialists, Inc., 811 F.2d 282 (5th Cir. 1987); Wirtz v. Robinson & Stephens, Inc., 368 F.2d 114 (5th Cir. 1966); see, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623 (1957).
8. Work-product privilege. Hickman v. Taylor, 329 U.S. 495 67 S.Ct. 385 (1947); Rule 26(b)(3), Fed. R. Civ. P.; Upjohn Co., et al. v. United States, et al., 449 U.S. 383, 101 S.Ct. 677 (1981). Applied to federal attorneys. See, NLRB v. Sears, Roebuck & Co., 412 U.S. 191, 154, 95 S.Ct. 1504, 1518 (1975), citing Kaiser Aluminum & Chemical Corp v. United States, 157 F.Supp 939, 946-947 (Ct.Cl. 1958).
9. Self-critical analysis privilege. A qualified privilege tha allows businesses to candidly assess their compliance with regulatory and legal requirements without creating evidence that may be used against them by their opponents in future litigation. Reichhold Chemicals, Inc. v. Textron, Inc., __F. Supp. __(N.D. Fla. 1994), 1994 WL 532165; Bredice v. Doctor's Hospital, Inc., 50 FRD 249 (D.D.C. 1970), aff'd without op., 479 F.2d 920 (D.C. Cir. 1973); Banks v. Lockheed-Georgia Co., 53 FRD 283 (N.D. Ga. 1971); In Re Crazy Eddie Securities Litigation, 792 F. Supp. 197 (E.D. N.Y. 1992); Keyes v. Lenoir Rhyne College, 552 F.2d 579 (4th Cir.), cert. denied, 434 U.S. 904 (1977); Lloyd v. Cessna Aircraft Co., 74 FRD 555 (E.D. Tenn 1977). But see policy considerations discussed in University of Pa. supra, militating against use of the self-critical analysis privilege in the EEO context.
10. Secrets of state and military secrets. United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528 (1953); Carl Zeiss, supra.
11. Trade secrets. Cases on trade secrets are: E.I. Du Pont de Nemours v. Masland, 244 U.S. 100, 37 S.Ct. 575 (1917); Tavoulareas v. The Washington Post Co., 724 F.2d 1010, 1017-1019 (D.C. Cir. 1984); Paul v. Sinnott, 217 F.Supp. 84 (W.D. Pa. 1963). See also 18 U.S.C. '1905 (prohibiting disclosure of trade secrets by government officials).
12. Grand jury privilege. United States v. Proctor & Gamble Co., 356 U.S. 677, 78 S.Ct. 983 (1958); see, Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211 (1979).
13. Psychotherapist-patient privilege. Counseling sessions between licensed psychiatrist or psychologist and patient and counseling sessions between licensed clinical social worker and patient. Recently adopted in Jaffee v. Redmond, 116 S.Ct. 1923 (1996).
14. Husband-wife privilege. SEC v. Levin, __F.3d__ (D.C. Cir. May 2, 1997, No. 96-5286).
15. Communications to clergy (priest-penitent) privilege.
16. Political vote privilege.
17. Doctor-patient privilege.
18. Researcher's or scholar's privilege. A qualified privilege principally to protect the interest of the researcher in not having the results of his or her research disclosed prematurely. Deitchman v. E.R. Squibb & Sons, Inc, 740 F.2d 556, 560-561 (7th Cir. 1984); Dow Chemical Co. v. Allen, 672 F.2d 1262, 1274-1276 (7th Cir. 1982); but see, In Re American Tobacco Co., 880 F.2d 1520 (2d Cir. 1989); Burka v. U.S. Dpet. of Health and Human Services, 87 F.3d 508 (D.C. Cir. 1996); Smith v. Dow Chemical Co., 173 F.R.D. 54, 57 (W.D.N.Y. 1997); Wilkinson v. FBI, 111 F.R.D. 42 (C.D. Cal. 1986).
A privilege log must be issued by the party claiming privilege, by specifically identifying each document or communication to be protected and the typoe of privilege or protection being asserted. See, e.g., Burns v. Imagine Films Entertainment, Inc., 164 F.R.D. 589, 594 (W.D.N.Y. 1996).