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Thursday, June 23, 2011

Discovery of public employer’s electronic records in federal litigation


Discovery of public employer’s electronic records in federal litigation
Pritchard, et al v County of Erie and others, 546 F.3d 222

Pritchard obtained an order from a federal district court justice compelling Erie County to produce certain electronic communications – e-mails - between County officials and an attorney employed by the County. The County objected, claiming that these e-mails were protected by the attorney-client privilege. The Circuit Court of Appeals agreed and vacated the district court’s order.

However, the Circuit Court then remanded the matter back to the lower court to consider another issue: “whether the privilege was otherwise waived.” Accordingly, the Circuit Court directed the lower court “to enter an interim order to protect the confidentiality of the disputed communications” until the issue of whether the privilege claimed by the County had been waived was decided.

United States District Court Justice Curtin had initially authorized the discovery of e-mailed communications, among other documents, that had been exchanged by an Assistant Erie County Attorney and County officials. The County characterized these e-mails as e-mails that “solicit, contain and discuss advice from attorney to client.”

In the words of the Second Circuit, Erie County’s petition “raises an issue of first impression: whether the attorney-client privilege protects communications that pass between a government lawyer having no policymaking authority and a public official, where those communications assess the legality of a policy and propose alternative policies in that light.”

The attorney-client privilege protects confidential communications between client and counsel made for the purpose of obtaining or providing legal assistance. As the Supreme Court said in Upjohn Co. v. United States, 449 U.S. 383. at 389, “This permits attorneys and their clients to communicate fully and frankly and thereby to promote ‘broader public interests in the observance of law and administration of justice.’”

In civil suits between private persons and government agencies, the attorney-client privilege protects most confidential communications between government counsel and the agency that are for the purpose of obtaining or providing legal assistance.

The Circuit Court said that “Access to legal advice by officials responsible for formulating, implementing and monitoring governmental policy is fundamental to promot[ing] broader public interests in the observance of law and administration of justice,” again citing Upjohn.

In this instance, the Circuit Court decided that the e-mails in question were exchanged between the county officials and their county attorney for “the predominant purpose of soliciting or rendering legal advice." They convey to the public officials responsible for formulating, implementing and monitoring Erie County’s corrections policies, a lawyer’s assessment of Fourth Amendment requirements, and provide guidance in crafting and implementing alternative policies for compliance. This advice -- particularly when viewed in the context in which it was solicited and rendered--does not constitute “general policy or political advice” unprotected by the privilege.

The issue of privilege with respect to electronic communications and records kept in electronic form will probably be the subject of future litigation. Changes to the Federal Rules of Civil Procedure [Rules 5.1, 16(b), 24, 26(a), 26(b)(2), 26(b)(5), 26(f), 33, 34(a), 34(b), 37(f), 45], and the Federal Rules of Evidence [Rules 404, 408, 606, 609], among others, took effect on December 1, 2006.

These amendments essentially address electronically stored information for the purpose of “discovery” in the course of litigation, including the obligation of the litigants to meet and confer about electronic discovery early in litigation and the discovery of information “electronically stored.” The new rules also require the parties to include information about electronically stored information in initial disclosures; the mandated early discovery-planning conference of counsel; the report to the court; and the pretrial scheduling conference with the judge. 

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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