Johnson-Harris v. United States

Background

Plaintiff’s counsel filed a letter motion seeking to have a document called the “Timeline” protected from disclosure under the attorney-client privilege. The court reviewed the Timeline privately after directing plaintiff’s counsel to submit it for review. The defendant opposed the request.

The Timeline had been found in the file of plaintiff’s former counsel and contained handwritten notes and other marks. Plaintiff’s counsel argued that the plaintiff had prepared the document and provided it to her then-attorney because she thought it would assist him. The opinion states, however, that the plaintiff testified during her deposition that she created the document voluntarily, without being asked by her attorney, and that it was intended to help her refresh or organize her own recollection. The circumstances of how she delivered it to her attorney were unclear.

Attorney-Client Privilege Analysis

The attorney-client privilege protects confidential communications made between a client and lawyer for the purpose of obtaining or providing legal advice. The party asserting the privilege has the burden of establishing all of its required elements.

The court identified several problems with the plaintiff’s claim. First, the Timeline had not been included in a privilege log, even though the applicable discovery rules required that document to be identified. The court stated that this omission alone supported denying the privilege claim. Second, counsel’s description of the plaintiff’s reason for preparing the Timeline was not supported by an affidavit or other sworn statement. Third, the evidence before the court indicated that the plaintiff prepared the document for her own use and merely gave it to her attorney. Sending a document to or receiving it from a lawyer does not, by itself, make the document privileged.

The court also found that the document appeared to contain facts rather than confidential communications relating to legal advice. The attorney-client privilege protects communications, not the underlying facts communicated to a lawyer. For these reasons, the court concluded that plaintiff had not met her burden of establishing that the privilege applied.

Refreshing Recollection

The court separately stated that, even if the Timeline had been privileged, it would have to be produced if it was used to refresh the plaintiff’s recollection during her deposition or at trial. The court said the deposition transcript appeared to show that refreshing the plaintiff’s recollection was the purpose of creating the document, but it was not clear whether she had actually used it to refresh her memory. The court therefore did not rely solely on that issue for its ruling.

Disposition

Magistrate Judge Lisa Margaret Smith denied the plaintiff’s application for attorney-client privilege protection. The court directed plaintiff’s counsel to produce the Timeline to defendant’s counsel within five business days of the order. Before production, counsel could remove all marks and notes made by prior counsel by covering, striking through, or otherwise obscuring them. The opinion does not state that the ruling dismissed any claim or ended the case.