J.L. v. New York City Department of Education

Background

The plaintiffs are parents of three students who they say need extensive services because of severe disabilities. They allege that the New York City Department of Education failed to provide appropriate nursing, transportation, and porter services, causing the students to miss significant school time. Their claims invoke the Individuals with Disabilities Education Act, New York Education Law, the Rehabilitation Act, the Americans with Disabilities Act, and 42 U.S.C. § 1983.

Fact discovery was complete except for a dispute over 18 documents. The Department withheld the documents after asserting attorney-client privilege and/or attorney work-product protection. The attorney-client privilege generally protects confidential communications made to obtain or provide legal advice. Work-product protection generally covers materials prepared because of anticipated litigation.

The disputed documents were emails involving Department employees, Department lawyers, and personnel from contractors or service providers, including United Staffing Solutions, RCA Ambulance Services, and Theracare. The plaintiffs argued that sharing the emails with contractor personnel waived attorney-client protection. The Department argued that the relevant contractor personnel were the functional equivalent of Department employees, so their inclusion did not waive the privilege.

Court’s Analysis

The court reviewed the documents privately. Nine email chains concerned a student involved in litigation with the Department and addressed transportation and nursing services. These chains conveyed legal advice and information about threatened litigation and court orders. The court found that portions were also work product because the communications would not have been prepared in the same way without the litigation.

The court found that the Department had not shown that RCA employees were so fully integrated into the Department that they should be treated as its employees for attorney-client privilege purposes. The evidence showed that RCA personnel provided specialized services according to Department specifications, did not hold key Department positions, did not independently make decisions for the Department, and were not shown to have sought legal advice from the Department’s lawyers. Thus, including RCA personnel would not preserve attorney-client privilege on that basis.

The court separately found that the RCA personnel’s inclusion did not waive work-product protection. RCA was a contractor and a critical partner in providing services, its interests were aligned with the Department’s interest in providing required services, and there was no indication that sharing the communications undermined confidentiality or made disclosure to litigation opponents more likely.

Some emails about a nurse, a specialized chair, follow-up matters, and arranging a child’s pickup were not privileged or protected work product. The court found that these emails did not convey or request legal advice and would have been written in essentially the same form even without the lawsuit. The court also found that two emails involving United Staffing Solutions personnel were work product, and that one of them was additionally protected by attorney-client privilege. The inclusion of the United Staffing Solutions employee did not waive those protections because the Department and that contractor shared a legal interest in a document concerning a student involved in pending or threatened litigation.

Disposition

The court ordered the Department to produce the documents by December 30, 2022, with production and redactions as specified in the opinion.

For the nine email chains concerning the student’s transportation and nursing services, the document ending in 293909 could be withheld in full. The portions identified from documents ending in 354939, 354918, 324534, 325310, 344592, 344807, 345468, and 345470 had to be produced, with the remaining protected portions redacted. The opinion identifies the relevant dates and portions for those productions.

The documents ending in 378366, 378362, 305655, 308502, 308394, 326806, and 326786 had to be produced because the communications were not privileged or protected work product. The documents ending in 313397 and 319447 remained protected as work product; document 319447 was also protected by attorney-client privilege. The Department therefore had to produce some documents in full and others in redacted form, while it could continue withholding the documents the court found protected.