Eugene Scalia v. International Longshore and Warehouse Union

Background

Eugene Scalia, acting in his official capacity as Secretary of the U.S. Department of Labor (DOL), brought this action under Title IV of the Labor-Management Reporting and Disclosure Act of 1959. DOL seeks to invalidate International Longshore and Warehouse Union’s (ILWU) September 2018 election of union officers and require a new election. DOL filed an amended complaint on August 30, 2019.

ILWU moved to compel production of 121 documents that DOL had withheld or redacted. DOL relied on the deliberative-process privilege, the government investigatory privilege, attorney-client privilege, and the attorney work-product doctrine. ILWU argued that the materials were relevant to its defenses, including its unclean-hands defense. Except for a limited objection concerning the investigatory materials, DOL did not dispute relevance or proportionality.

Deliberative-Process Privilege

The deliberative-process privilege protects certain agency decision-making materials that are both pre-decisional and deliberative. The court held that Brian Pifer’s declarations adequately invoked the privilege even though he had not personally reviewed every withheld document. The court concluded that the decision to file this lawsuit was sufficiently specific to identify the decision to which the pre-decisional materials related.

The court found that some of DOL’s privilege-log descriptions, together with Pifer’s declaration, sufficiently established that portions of investigative reports, drafts, recommendations, and related materials contained deliberative information. But other entries were too vague. For example, descriptions such as a redacted discussion regarding evidence or deliberations relating to violations found did not adequately explain how the documents contributed to DOL’s decision-making process.

The court therefore ordered DOL to revisit every document for which it asserted the deliberative-process privilege. DOL must amend its privilege log or submit supplemental declarations with enough detail to establish the privilege. If DOL determines that a document should not have been withheld, it must produce it to ILWU.

The court also held that DOL had not sufficiently shown that all reasonably segregable factual material had been disclosed. DOL must either remove the deliberative-process assertions and produce nonprivileged factual portions or submit declarations explaining why the factual material cannot reasonably be separated from protected analysis. The court further held that DOL’s deliberative documents did not lose protection merely because DOL filed the lawsuit, and that undistributed files were not automatically unprotected but had to be reconsidered under the same standards.

ILWU also sought waiver of the deliberative-process privilege. The court rejected that request, finding that ILWU had not shown specifically why the documents were relevant, why comparable information was unavailable elsewhere, or why its need outweighed the government’s interest in confidentiality.

Government Investigatory Privilege

The parties agreed at the hearing to produce four documents that DOL had withheld under the government investigatory privilege. The court ordered DOL to produce the documents identified in privilege-log lines 46, 47, 87, and 329, subject to the parties’ protective order and an Attorneys’ Eyes Only designation.

Attorney-Client Privilege

ILWU challenged 21 documents withheld under attorney-client privilege, arguing that they were emails between DOL employees who were not attorneys. The court explained that communications between non-attorney employees can be privileged when they transmit legal advice from counsel or discuss an employee’s intent to seek legal advice.

The court found DOL’s privilege-log descriptions too vague and noted that DOL had provided no attorney declarations confirming that the documents contained legal advice and no employee declarations showing that the communications were made to seek such advice. DOL was ordered to submit declarations supporting these privilege claims.

Attorney Work Product

The attorney work-product doctrine protects materials prepared by or for an attorney in anticipation of litigation. The court found that ILWU had not shown that DOL’s work-product assertions were improper. ILWU’s arguments based on earlier privilege logs, ordinary business documents, and segregable factual material did not establish that the challenged documents lacked protection. The court therefore denied ILWU’s motion to compel the documents withheld as attorney work product.

Disposition

The court granted in part and denied in part ILWU’s motion to compel. By December 9, 2020, DOL had to amend its privilege log or submit additional declarations, produce the four investigatory-privilege documents under the protective order, support its attorney-client privilege claims involving non-attorney employees, and remove improper privilege assertions or produce improperly withheld documents. ILWU could file objections to specific documents by December 16, 2020; DOL could respond by December 23, 2020. The motion was otherwise denied.