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

Background

The plaintiffs filed a letter motion asking the court to compel production of portions of two documents that the defendants had previously produced and later clawed back under a stipulation and order governing clawed-back material. The documents were Exhibit 33 and Exhibit 67, attached to a declaration supporting the plaintiffs’ motion for partial summary judgment.

The defendants asserted that the clawed-back information was protected by the attorney-client privilege and the work-product doctrine. The letter states that the redactions covered communications between Department of Education employees, some involving a Department of Education attorney.

Parties’ Position

The plaintiffs argued that the redacted information appeared to concern topics or conversations that were not for seeking or providing legal advice. They also argued that an attorney’s presence on an email chain did not, by itself, make the communications privileged. Regarding Exhibit 33, the plaintiffs noted that the defendants had left unredacted communications involving the same recipients and subject matter.

The plaintiffs asked the court to review the documents privately and, if the communications were not privileged, to compel their production.

Legal Standards Discussed

The attorney-client privilege protects confidential communications between a client and counsel made to obtain or provide legal advice. Communications primarily conveying business advice, or communications involving attorneys acting in nonlegal roles, are not protected on that basis. The work-product doctrine generally protects documents prepared by a party or representative in anticipation of litigation, but the letter states that the material must result from investigative or analytical work assisting counsel in preparing for litigation.

The party withholding material bears the burden of establishing that the privilege or protection applies.

Court’s Order

The court ordered the defendants to send an ex parte email—that is, a private submission to the court—by Wednesday, June 28, 2023. The submission must include copies of the disputed documents with the clawed-back information highlighted in yellow and excerpts from the defendants’ privilege-log entries for those documents.

The provided text does not expressly state that the motion to compel was granted or denied, and it does not state the court’s final decision on whether the redacted communications are privileged.