Howard University v. Borders

Background

Larry Borders and Virginia Borders challenged Howard University’s designation of certain documents as protected by the attorney-client privilege or attorney-work-product doctrine. They requested an in camera review, meaning a private review by the court. The documents included internal emails involving Howard employees and three emails between Lisa Farrington, Howard’s art-gallery director and Rule 30(b)(6) representative, and employees of Rosenfeld Gallery.

The Borders argued that there was a good-faith basis to seek the internal emails because they were communications among non-lawyers, Farrington had denied having certain communications during her deposition, and Howard had not identified some participants in the privilege logs. Howard argued that the internal emails were protected because Farrington gathered the information at the direction of in-house counsel Lisa Jones Gentry as part of a pre-suit investigation into artwork that had been consigned for a sale.

Attorney-Client Privilege

The court held that Howard met its burden of establishing attorney-client privilege over the internal emails. The court explained that an internal investigation is not automatically privileged, but an investigation may become protected when it is conducted to prepare a legal defense or decide whether to bring litigation. Gentry’s declaration stated that she directed Farrington to collect information for Howard’s legal arguments and strategy in the anticipated lawsuit. The timing, participants, and descriptions of the challenged emails were consistent with that purpose.

Work-Product Protection

The court separately held that the three emails exchanged with Rosenfeld Gallery were protected attorney work product. Work-product protection generally covers documents prepared for litigation by or for a party or its representative, subject to limited discovery when an opposing party shows substantial need and cannot obtain the equivalent information without undue hardship. The emails were sent about one week before Howard filed its complaint and were consistent with Farrington’s effort, at Gentry’s direction, to gather information for the litigation.

The court also found no waiver. Disclosure to a non-adversarial third party does not waive work-product protection when that person has an interest in the information but is not reasonably viewed as a conduit to a potential adversary. The court found that Rosenfeld Gallery had no connection with the Borders and was not likely to reveal the emails to them.

Deposition Testimony and Disposition

The court separately addressed Farrington’s deposition testimony. Farrington had said that she did not think she had emailed anyone outside Howard’s in-house or outside counsel about the artwork and had not emailed Mr. Baker. The privilege logs and Howard’s own position regarding the emails contradicted those statements. Howard did not directly deny that Farrington’s testimony was inaccurate. Although Farrington provided a declaration explaining one misunderstanding about conversations involving counsel, that declaration did not address her testimony about the emails.

The Borders did not raise a separate deposition issue in the current motion but reserved the possibility of doing so later. The court stated that it would entertain a future motion, including a request to redepose Farrington at Howard’s expense, if Howard impeded discovery or failed to promptly and sufficiently correct past inaccuracies. The court denied the motion for discovery and directed the Clerk of Court to close Docket Number 31.