3:15-mc-03005-SEM # 121 Page 1 of 27 E-FILED Friday, 12 February, 2016 04:23:37 PM Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION
IN RE SPRINGFIELD GRAND ) JURY ) Case No. 15-mc-3005 )
SEALED OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This matter is before the Court on a review of Aaron Schock’s privilege log and the documents submitted in camera. Since the original filing of the privilege log and submission of the documents,
the parties have resolved the issues pertaining to the documents in
Rows 2, 9-11, 13, 17, 18, 22-32, 34-39, 42-57, 59-62, 64, 66, and
68-72 of the privilege log. As for the remaining documents, the
Court finds the following documents are protected by the attorney- client privilege: the documents in Rows 1, 3, and 4. The following document must be produced with redactions as noted in this
Opinion: the document in Row 8. The following documents must be
produced: the documents in Rows 5, 6, 7, 12, 14-16, 19-21, 33,
40,41, 63, 65, and 67. In addition, the document in Row 58 need not be produced because the Government has already received
substantially the same document from third parties. Page 1 of 27
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I. BACKGROUND
This matter arises out of the Government’s continued attempts
to obtain documents from former U.S. Congressman Aaron Schock
pursuant to several grand jury subpoenas. After extensive
litigation, including a contempt hearing, the parties reached an
agreement whereby Mr. Schock would “complete the production of
records in his personal possession that were responsive to the
subpoena issued in his name and served on him personally on
March 31, 2015.” Agreement (d/e 54). The parties agreed to
continue the contempt hearing to August 28, 2015. Id.
On August 26, 2015, Mr. Schock filed a Notice of Compliance with Subpoena (d/e 82), asserting that he had completed his production of records in his personal possession that were responsive to the subpoena and asking the Court to find that Mr.
Schock had shown just cause for the contempt hearing to be terminated. Counsel for Mr. Schock also indicated that they had identified a set of 2,944 records that they believed were not
responsive to the subpoena’s request for financial records. Counsel offered to produce those records to the Court for an in camera, ex parte inspection. In addition, counsel for Mr. Schock attached to Page 2 of 27
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the Notice a copy of a letter counsel had sent to the Government indicating that certain documents produced had been redacted or withheld based on the attorney-client privilege and the work- product doctrine.
The Government filed a Response (d/e 84), asking in part that the Court order Mr. Schock to produce all withheld records to the
Court for an in camera inspection. The Government attached Mr.
Schock’s privilege log , which was filed under seal.
On August 27, 2015, the Court ordered Mr. Schock to produce to the Court the withheld documents for an ex parte, in camera review. Order (d/e 86). The Court also set a briefing schedule and cancelled the August 28, 2015 hearing.
Mr. Schock submitted the requested documents to the Court.
See Notice of Compliance (d/e 90). The parties ultimately resolved the issue pertaining to the set of 2,944 records Mr. Schock believed
were not responsive to the subpoena. See Letter (d/e 107).
Therefore, only the documents that were withheld based on attorney-client privilege or the work-product doctrine remain at issue.
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Mr. Schock ultimately claimed that 72 documents were protected by the attorney-client privilege or work-product doctrine.
The documents are listed by row on the privilege log.
Since then, however, the Government has obtained some of the documents from third parties or otherwise determined that no objection would be raised to several of Mr. Schock’s privilege claims:
Rows 2, 9-11, 13, 17, 18, 22-32, 34, 36-38, 42-44, 47, 50, 54-56,
60, 62, 69, and 71.1 In addition, Mr. Schock represented that several documents had otherwise been produced to the
Government: Rows 35, 39, 45-46, 48-49, 51-53, 57, 59, 61, 64, 66,
68, 70, and 72. The Government requests that the Court confirm
Mr. Schock’s prior production of the documents. If the documents have, in fact, been produced, the Government does not object to the assertion of the privilege as to those documents.
Mr. Schock provided the Court with Bates-stamped copies of the documents that have been produced to the Government. The
Court compared those documents with the documents that were withheld and confirmed that Mr. Schock has, in fact, produced the
1 Mr. Schock also withdrew his privilege claim for the documents listed in Rows 30-32. See Unredacted Ex Parte Submission Regarding Privileged Documents at 12 (d/e 94). Page 4 of 27
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documents in Rows 35, 39, 45-46, 48-49, 51-53, 57, 59, 61, 64, 66,
68, 70, and 72 to the Government. Consequently, only the documents in the following Rows remain at issue: Rows 1, 3-8, 12,
14-16, 19-21, 33, 40-41, 58, 63, 65, and 67.
II. ANALYSIS
Mr. Schock asserts that the documents at issue are protected by either the attorney-client privilege, the work-product doctrine, or both.
The attorney-client privilege applies to confidential communications made with an attorney in connection with the provision of legal services and in the context of an attorney-client relationship. United States v. BDO Seidman, LLP, 492 F.3d
806, 815 (7th Cir. 2007). The purpose of the attorney-client privilege “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.”
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
Generally, communications between an attorney and his client made in the presence of third parties are not privileged. Matter of
Walsh, 623 F.2d 489, 495 (7th Cir. 1980). Nonetheless, the Page 5 of 27
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attorney-client privilege attaches to otherwise privileged attorney- client communications with third parties who share a common legal interest with respect to the communication. BDO
Seidman 492 F. 3d at 815-16; Pampered Chef v. Alexanian, 737
F.Supp.2d 958, 964-66 (N.D. Ill. 2010). The privilege also extends
to communications about the privileged material between non-
attorneys who are properly privy to the privileged information.
IBJ Whitehall Bank & Trust Co. v. Cory & Associates, Inc., No. CIV
A. 97 C 5827, 1999 WL 617842, at *6-7 (N.D. Ill. August 12, 1999); see also Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir. 2007)
(noting that the attorney-client privilege is not waived when the presence of the third party was necessary to “assist the attorney in rendering legal services”); United States v. Evans, 113 F.3d 1457,
1462 (7th Cir. 1997) (noting, as a general matter, that “the attorney-client privilege will not shield from disclosure statements made by a client to his or her attorney in the presence of a third party who is not an agent of either the client or attorney”) (citing 8
Wigmore, Evidence § 2311). The attorney-client privilege is to be narrowly construed. Jenkins, 487 F.3d at 490.
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Mr. Schock also argues that some of the documents are protected by the work-product doctrine. “The work-product doctrine protects documents prepared by attorneys in anticipation of litigation for the purpose of analyzing and preparing a client’s case.” Sandra T.E. v. South Berwyn Sch. Dist. 100, 600 F.3d 612,
618 (7th Cir. 2009); see also United States v. Nobles, 422 U.S. 225,
239 (1975) (providing that the work-product doctrine “shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case”). A document is prepared “in anticipation of litigation” when prepared “because some articulable claim, likely to lead to litigation, [has] arisen.”
Sandra T.E., 600 F.3d at 622 (emphasis in original) (citations and quotations omitted).
The doctrine protects both fact and opinion work product.
Wagner v. Shearson Lehman Bros., Inc., No. 93 C 509, 1985 WL
1759, at *3 (N.D. Ill. June 18, 1985) (describing opinion work
product as documents that show an “attorney’s legal strategy, his
intended lines of proof, his evaluation of the strengths and
weaknesses of his case, and the inferences he draws from
interviews of witnesses”); Doe v. Society of Missionaries of Sacred Page 7 of 27
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Heart, No. 11-cv-02518, 2014 WL 1715376, at *3 (N.D. Ill. May 1,
2014) (describing fact work product as “raw factual information”).
The work-product doctrine “shields materials that are prepared in
anticipation of litigation from the opposing party, on the theory that
the opponent shouldn’t be allowed to take a free ride on the other
party’s research, or get the inside dope on that party’s strategy.”
Mattenson v. Baxter Healthcare Corp., 438 F.3d 763, 767-68 (7th
Cir. 2006).
Mr. Schock bears the burden of proving that all of the essential elements of the privilege exist. United States v. BDO
Seidman, 337 F.3d 802, 811 (7th Cir. 2003); Allen v. Chicago
Transit Auth., 198 F.R.D. 495, 499 (N.D. Ill. 2001). The Court will address each document or set of documents in turn.
A. The Documents in Rows 1, 3, and 4 Are Privileged
The Row 1 document is an email string dated September 2,
2010 among the following: outside counsel Jessica Furst, general counsel for the National Republican Congressional Committee;2
2 Mr. Schock asserts that counsel from the National Republican Congressional Committee (NRCC) provide legal advice to NRCC members. Redacted Ex Parte Submission Regarding Privileged Documents at 6 (d/e 93).
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staffer Steven Shearer, Chief of Staff for Congressman Schock3; and
Aaron Schock. The email pertained to a joint fundraising agreement. The document in Row 3 is an email string from
September 2010. In the redacted portion of the document in Row 3,
Tania Hoerr, Political Director for Schock for Congress, requests and receives legal advice from Attorney Furst and forwards that information to Mr. Schock. The document in Row 4 is an email string among Attorney Furst, staffers Shearer and Hoerr, and Mr.
Schock regarding joint fundraising committee requests.
Mr. Schock asserts that these emails contain outside counsel’s legal opinions and are protected by the attorney-client privilege. The
Government responds that the documents are not privileged unless the third party’s presence was necessary to the giving of legal advice to Schock, the attorney involved was Schock’s attorney, and the communication was confidential.
The Court has reviewed the documents in Rows 1, 3, and 4.
Those documents clearly involve the seeking of legal advice and the provision of that legal advice by the attorney. Moreover, the emails
3 Schock also refers to Shearer as his “political advisor.” See Unredacted Ex Parte Submission Regarding Privileged Documents at 6 (d/e 94). Page 9 of 27
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suggest that Shearer, as Chief of Staff, and Hoerr, as Political
Director, sought legal advice on Mr. Schock’s behalf and forwarded
the attorney’s response to Schock. As such, because Shearer and
Hoerr acted as Schock’s agent and were necessary to the provision
of legal advice, their presence and involvement did not waive the
attorney-client privilege. See, e.g., Heriot v. Byrne, 257 F.R.D. 645,
665 (2009) (“the attorney-client privilege applies to third parties who are agents of either the lawyer or the client”); Schlicksup v.
Caterpillar, Inc., No. 09-CV-1208, 2011 WL 11737159, at *2 (C.D.
Ill. Aug. 19, 2011) (“Confidential communications by non-lawyers for the purpose of assisting the lawyers to provide legal advice are
also protected by the attorney-client privilege”); Stafford Trading,
Inc. v. Lovely, No. 05-C-4868, 2007 WL 611252, at *7 (N.D. Ill. Feb.
22, 2007) (limiting the privilege to those instances where the client’s investment advisor communicated confidentially with the client’s counsel for the purpose of obtaining or providing legal advice);
Comrie v. Ipsco, Inc. No. 08 C 3060, 2009 WL 4403364, at *1 (N.D.
Ill. Nov. 30, 2009) (finding privileged communication by attorney agent of the client to client’s outside counsel).
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B. The Documents in Rows 5, 7, 12, 14-16, and 19-21 Are Not Privileged and Must Be Produced
The documents in Rows 5 and 7 are draft joint fundraising agreements both purportedly drafted on January 3, 2011. The privilege log identifies Tyler Roberts as the author and Attorney
Furst as a participant. Mr. Schock asserts that these drafts are protected by the attorney-client privilege because they contain outside counsel’s legal opinion. However, the identity and role of
Mr. Roberts is unclear, and he is not identified as an attorney on the privilege log.
The documents contained in Rows 12, 14-16, and 19-21 consist of draft limited liability company (LLC) agreements or
portions thereof related to Mr. Schock’s personal business dealings.
The privilege log identifies Stephanie Kruger as the author and
Attorney John Elias as the other participant.
Mr. Schock asserts that the drafts are protected by the
attorney-client privilege. Attorney Elias discussed the LLC
agreement with Schock and the business partner, thus reflecting
the joint provision of legal advice. The identity of Kruger is unclear,
and she is not the business partner to whom Mr. Schock refers.
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Given the involvement of third parties Roberts and Kruger,
whom Schock has not identified, the Court finds that Mr. Schock
has not met his burden of showing that the attorney-client privilege
applies to these documents. See Burden-Meeks v. Welch, 319 F.3d
897, 899 & 901 (7th Cir. 2003) (providing a document to a third party typically waives the attorney-client privilege). The Court also notes that drafts of documents that are ultimately made public may remain protected by the attorney-client privilege if the disclosure of the drafts would reveal legal advice provided by attorney to the client. See, e.g., Roth v. Aon Corp., 254 F.R.D. 538, 541 (N.D. Ill.
2009) (“So long as the initial legal advice sought from an attorney in legally formulating the drafts is made in confidence and protected by the client as confidential information without waiver, there is no apparent reason why the drafts should cease to be privileged once the final product becomes public”); United States v. Segal, No. 02-
CR-112, 2004 WL 830428, at *4 (N.D. Ill. Apr. 16, 2004) (noting that “[t]he disclosure of early drafts and discussions of the editing process could reveal confidential information provided to
Defendants' attorneys that was either omitted from the final letters or implicit in the editing process”); Musa-Muaremi v. Florists’ Page 12 of 27
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Transworld Delivery, Inc., 270 F.R.D. 312 (N.D. Ill. 2010) (no privilege in drafts of documents where there is no legal advice or request for legal advice apparent in any of the documents); Acosta v. Target Corp., 281 F.R.D. 314, 321 (N.D. Ill. 2012) (“counsel's comments on, and revisions to, drafts of documents that are intended for ultimate disclosure to third parties can be privileged to the extent that the comments and revisions communicate legal advice and have been maintained confidential”). However, it is not obvious from the documents that they reflect legal advice from counsel. None of the documents contain attorney notes or comments. Moreover, any revisions are not readily apparent.
Because Mr. Schock has not met his burden, the documents must be produced.
C. The Document in Row 6 Is Not Privileged and Must Be Produced
The document contained in Row 6 is a January 11, 2011 email among a consultant, Hetaf Kraydi; Chief of Staff Shearer; Mr.
Schock; Political Director Hoerr; and Attorney Furst. According to
the privilege log, the email pertains to the joint fundraising
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committee and relays outside counsel’s legal opinion. Mr. Schock
claims the document is protected by the attorney-client privilege.
However, upon the Court’s review of the email, the Court finds
that it does not relay confidential information as it merely tells
Schock to review the attached document, sign it, send it to the
attorney, and then wait to receive a final copy to send to the
treasurer. The document in Row 6 must be produced.
D. The Document in Row 8 Shall Be Redacted and Produced
The document in Row 8 is a February 2012 email string among the following: outside counsel Attorney John Fogarty, Jr.;
Chief of Staff Shearer; Political Director Hoerr; and Schock. The email concerns the “primary nomination decision.” See Privilege
Log. Schock asserts that the email is protected by the attorney- client privilege and the work-product doctrine because the email contains outside counsel’s legal opinion and was prepared in connection with litigation.
The email appears to be a cover email for an invoice submitted
by Attorney Fogarty, Jr. to Ms. Hoerr, who then forwarded the email
to Mr. Schock and Mr. Shearer. The actual invoice, Row 9, was one
of the documents the Government either obtained from third parties Page 14 of 27
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or determined that no objection would be raised to Mr. Schock’s
privilege claim.
“[C]orrespondence between attorney and client which reveals
the client’s motivation for creation of the relationship or possible
litigation strategy ought to be protected.” In re Grand Jury Witness,
695 F.2d 359, 362 (9th Cir. 1982); see also Matter of Witnesses
Before the Special March 1980 Grand Jury, 729 F.2d 489, 495 (7th
Cir. 1984) (finding the Ninth Circuit case “instructive”). Documents that “reveal the nature of the services provided, such as researching particular areas of law, also should fall within the privilege,” provided that the other requirements for application of the privilege—“confidential intent and nondisclosure to third parties”— are also shown. In re Grand Jury Witness, 695 F.2d at 362, n.5; see also In re Subpoenaed Grand Jury Witness, 171 F.3d 511, 514
(7th Cir. 1999) (“’A client’s motive for seeking legal advice is undeniably a confidential communication’”) (quoting Matter of
Grand Jury Proceeding, Cherney, 898 F.2d 565, 568 (7th Cir.
1990)).
The Court finds that only the second and third sentences in the first paragraph of the email reveal legal advice or a confidential Page 15 of 27
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communication between Mr. Schock, Mr. Schock’s agents, and the
attorney. The Court also finds that the presence of the third parties
was necessary to the provision of the legal advice. See, e.g., Heriot,
257 F.R.D. at 665.
The email is not, however, protected by the work-product doctrine. Mr. Schock has not shown that the email sending Ms.
Hoerr the invoice for services rendered was itself prepared in
anticipation of litigation. See, e.g., Max-Planck-Gesellschaft Zur
Forderung Der Wissenschaften E.V. v. Whitehead Institute for
Biomedical Research, No. 09-11116-PBS, 2010 WL 4340646, at *1
(D. Mass. Nov. 2, 2010) (finding the party had not established that the attorney invoices were themselves prepared in anticipation of litigation). Therefore, Mr. Schock shall redact the second and third sentences in the first paragraph and then produce the redacted email to the Government.
E. The Document in Row 33 Is Not Privileged and Must Be Produced
The document in Row 33 is identified on the privilege log as a
February 18, 2015 email authored by a Schock staffer, Executive
Assistant Sarah Rogers, to Mr. Schock regarding travel records
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prepared in connection with a government investigation and in
anticipation of litigation. Mr. Schock asserts that the document is
protected by the work-product doctrine. The underlying documents
(from which the information reflected in the email was obtained)
were provided to the Government. Mr. Schock’s concern is that the
document shows the records collected by Mr. Schock or his
representative and reveal legal strategy. Redacted Ex Parte
Submission Regarding Privileged Documents at 18 (d/e 93).
Ms. Rogers prepared and sent to Mr. Schock historical information related to his travel. See Id. at 19 (identifying Rogers as a “staffer,” although Rogers’ name is included on the privilege log).
When the document was prepared, the media was publicly questioning Mr. Schock’s travel. Id. at 15-16; Reply in Support of
Notice of Compliance at 16 n. 19 (d/e 92). A pattern had emerged with media inquiries closely followed by ethics and legal complaints.
Redacted Ex Parte Submission Regarding Privileged Documents at
15. For example, on February 2, 2015, The Washington Post ran an article about the decoration of Mr. Schock’s office. The next day, the Citizens for Responsibility and Ethics in Washington (CREW)
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filed a complaint with the Office of Congressional Ethics4 about the
matter of the decoration of Mr. Schock’s office. A few days later, the
press questioned Mr. Schock’s 2012 sale of a home to an individual
who was also a campaign donor. On February 9, 2015, CREW filed
a complaint with the Office of Congressional Ethics about the sale.
On February 25, 2015, citing recent news reports, CREW filed a
third complaint with Office of Congressional Ethics alleging that Mr.
Schock violated House ethics rules regarding charter flights. Id.
Therefore, according to Mr. Schock, it was reasonable for him and
his representative to anticipate potential litigation involving this
topic on February 18, 2015 when the document was created. Id. at
19.
Even assuming the document was prepared in anticipation of litigation, a matter the Court does not decide, the document is not protected by the work-product doctrine.
4 Mr. Schock explains that while filing a complaint at the Office of Congressional Ethics does not guarantee that the office will investigate the matter, any complaint that is not facially defective results in an initial investigation to determine if the Commission will pursue the matter further. Redacted Ex Parte Submission Regarding Privileged Documents at 16 n. 14 (d/e 93) (citing Federal Election Commission Office of General Counsel Enforcement Manual, Ch. 1, at 2-4 (1997)), available at http://www.fec.gov/pdf/1997_Enforcement_Manual.pdf. Page 18 of 27
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The work-product doctrine protects documents prepared by an
attorney or the attorney's agent to analyze and prepare the client's
case. See Nobles, 422 U.S. at 238–39; Hobley v. Burge, 433 F.3d
946, 949 (7th Cir. 2006). The doctrine does not extend to the work of the client’s agents. United States v. Smith, 502 F.3d 680, 689
(7th Cir. 2007) (finding that the letter the client wrote to his private investigator friend was not protected by the work-product doctrine
because the client’s attorney had not hired the investigator and “[i]t
is not up to the client to determine whom to make an agent for the
purposes of asserting the work-product doctrine”). Third-party
documents may, however, be protected when the party requesting
the documents already has the documents but is seeking to learn
the opposing attorney’s thinking or strategy. Matter of Grand Jury
Subpoenas Dated Oct. 22, 1991, and Nov. 1, 1991, 959 F.2d 1158,
1166-67 (2d Cir. 1992) (finding the work-product doctrine did not apply because the government demanded all of the records for a five-year period and was not seeking to determine what records the attorneys thought were relevant); see also Sporck v. Peil, 759 F.2d
312, 315 (3d Cir. 1985) (finding the work-product doctrine applied to the few documents the attorney selected out thousands of Page 19 of 27
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documents that had been produced because that selection revealed
the attorney’s thinking and strategy).
Mr. Schock argues that Rule 26(b)(3)(A) specifically provides
that the work-product doctrine applies to material prepared “by or
for another party or its representative.” Reply in Support of Notice
of Compliance at 15 (d/e 92) (quoting Fed. R. Civ. P. 26(b)(3)(A)).
Consequently, Mr. Schock asserts that the document is protected
by the work-product doctrine because it was prepared by his
representative.
However, the Seventh Circuit has held that Rule 26 does not
apply to grand jury proceedings. In re Special Sept. 1978 Grand
Jury (II), 640 F.2d 49, 61 n.17 (7th Cir. 1980). While Rule
26(b)(3)(A) codifies the work-product doctrine (see United States ex rel. Yannacopoulos v. General Dynamics, 235 F.R.D. 661, 664 (N.D.
Ill. 2006)), the Seventh Circuit has specifically held, in the grand jury context, that the work-product doctrine “encompass[es] any document prepared in anticipation of litigation by or for the attorney.” 1978 Grand Jury (II), 640 F.2d at 62; see also, e.g., In re
Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183, 185
(2d Cir. 2007) (recognizing that Rule 26 does not apply in grand Page 20 of 27
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jury proceedings and holding that the work-product doctrine
protects materials prepared by or at the behest of counsel in
anticipation of litigation) (citations and quotations omitted). In this
case, Mr. Schock has not indicated that counsel requested that he
prepare the document for counsel.
Therefore, the Court finds that the document in Row 33 is not
protected by the work-product privilege and must be produced.
F. The Document in Row 58 Need Not Be Produced
The document in Row 58 is nearly identical to the document in
Row 56. Specifically, the document in Row 58 is the same document as that in Row 56, simply forwarded to Mark Roman,
Schock’s Chief of Staff, with no additional communication. The
document in Row 56 is an email from Mr. Schock to his attorneys and media consultants. The Government already received this document from third parties. See Government’s Notice of
Correction to Objection and Additional Withdrawal of Objections to
Privilege Assertions at 3 (d/e 102). Because the Government has the document, the Court will not determine whether a privilege applies and will not order the document in Row 58 produced.
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G. The Document in Row 63 Is Not Privileged and Must Be Produced
The document in Row 63 is a March 16, 2015 email string.
The first email reflects a document being scanned to Mr. Schock by staffer Shea Ledford. Mr. Ledford forwards the attachment to Mr.
Schock. Mr. Schock forwards the email and attachment to
Attorneys Donald McGahn and William McGinley and media consultants Brian Walsh and Ron Bonjean with an explanation.
The privilege log asserts that the information was requested by outside counsel for the purpose of rendering a legal opinion.
Mr. Schock claims the document is protected by the attorney- client privilege and the work-product doctrine. The actual document attached to the email has been provided to the
Government.
The Court has reviewed the email string and concludes that it does not contain a confidential communication. Mr. Schock has not met his burden of showing that the communication was intended to be confidential given the presence of the media consultants and the nature of the communication. Moreover, the mere fact that documents are forwarded to counsel does not “reveal
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any substantive aspect of the legal consultation.” Rexam Beverage
Can Co. v. Bolger, No. 06 C 2234, 2008 WL 4344921, at *2 (N.D. Ill.
Mar. 18, 2008).
Mr. Schock also argues that the document is protected by the
work-product doctrine. Specifically, Mr. Schock asserts that when he and his representative gathered the document attached to the email, there were open complaints about Schock. See Redacted Ex
Parte Submission (d/e 93); Reply in Support of Notice of
Compliance at 13-14 (d/e 92) (identifying complaints filed by
Citizens for Responsibility and Ethics in Washington (CREW) in
February and March 2015). As such, Mr. Schock asserts that the document was gathered in anticipation of litigation and producing the email would reveal which documents were collected at what time and reveal strategy.
Even assuming that Mr. Schock collected the document in anticipation of litigation, the Court finds that nothing about the email reveals the mental process of the attorney. This is unlike the cases where the attorney selects a few documents out of a large collection of documents. See, e.g., Sporck, 759 F.2d at 315 (finding the work-product doctrine applied to the few documents the Page 23 of 27
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attorney selected out thousands of documents because that
selection revealed the attorney’s thinking and strategy). The email,
to the extent that it indicates a particular document was sent on a
particular date to Mr. Schock and then forwarded to counsel, does
not reflect Schock’s attorneys’ mental process or strategy.
Therefore, the document is not protected by the work-product
privilege. The document in Row 63 must be produced.
H. The Document in Row 40 Is Not Privileged and Must Be Produced
The document in Row 40 is another March 16, 2015 email between Mr. Schock and his staffer Mr. Ledford in which Mr.
Ledford forwards an attachment to Mr. Schock. Mr. Schock asserts
that the document is protected by the work-product doctrine.
For the reasons stated with regard to the work-product
doctrine for the document in Row 63, the Court finds that the
document in Row 40 is not protected by the work-product doctrine
and must be produced. Mr. Schock has not met his burden of
showing that the document is protected by the work-product
doctrine.
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I. The Document in Row 65 Is Not Privileged and Must Be Produced
According to the privilege log, the document in Row 65 is a
March 16, 2015 email string among the following: outside counsel
Attorneys McGinley and McGahn; staffer Mr. Ledford; and Mr.
Schock. The email pertains to a real estate investment and
“provides information requested by outside counsel for the purpose of rendering a legal opinion, prepared in connection with government investigation and in anticipation of litigation.” See
Privilege Log. Specifically, by way of the email, Mr. Ledford forwards documents to Mr. Schock, who forwards them to counsel.
The actual documents attached to the email were produced to the
Government. Mr. Schock asserts that the email is protected by the work-product doctrine and the attorney-client privilege.
For the reasons stated with regard to the work-product doctrine and attorney-client privilege for the document in Row 63, the Court finds that the document in Row 65 is not protected by the
work-product or attorney-client privilege.
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J. The Document in Row 41 Is Not Privileged and Must Be Produced
The document in Row 41 is a March 16, 2015 email from Mr.
Ledford to Mr. Schock forwarding a document. The document attached to the email was produced to the Government. Mr. Schock asserts that the document is protected by the work-product doctrine because the document was prepared in connection with a government investigation and in anticipation of litigation.
As was the case with the documents in Rows 63, 40, and 65,
Schock has failed to meet his burden of showing that the document is protected by the work-product doctrine. Nothing about the email reflects counsel’s strategy or mental processes.
K. The Document in Row 67 Is Not Privileged and Must Be Produced
The document in Row 67 is a March 16, 2015 email from Mr.
Ledford to Mr. Schock forwarding a document. (The email in Row
41 is also part of the email in Row 67). Mr. Schock then forwarded
the email and attachment to counsel. Mr. Schock asserts that the
email is attorney-client privileged and protected by the work-
product doctrine.
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For the reasons stated with regard to the work-product
doctrine and attorney-client privilege for the document in Row 63,
Mr. Schock has failed to meet his burden for the document in Row
67.
III. CONCLUSION
For the reasons stated, the following documents are protected by the attorney-client privilege: the documents in Rows 1, 3, and 4.
The following document must be produced with redactions as noted in this Opinion: the document in Row 8. The following documents must be produced: the documents in Rows 5, 6, 7, 12, 14-16, 19-
21, 33, 40,41, 63, 65, and 67. In addition, the document in Row 58 need not be produced because the Government has already received substantially the same document from third parties.
ENTER: February 12, 2016
FOR THE COURT: s/Sue E. Myerscough SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE
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