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

Background

On June 12, 2023, the plaintiffs filed a letter motion asking the court to require the defendants to reproduce documents that the defendants had previously produced and later clawed back. Before the clawback, the plaintiffs had attached the documents to their summary-judgment briefing as Exhibits 33 and 67.

The defendants opposed the motion. They argued that the documents were protected by attorney-client privilege and the work-product doctrine. They asked the court to deny the motion and remove the unredacted versions from the docket. The defendants supplied copies for the court’s private review.

Legal standards

Attorney-client privilege protects confidential communications between a client and a lawyer made to obtain or provide legal advice. It does not protect communications created primarily for business or other nonlegal advice.

The work-product doctrine protects documents or tangible items prepared by a party or its representative in anticipation of litigation. The materials must result from investigative or analytical work intended to help counsel prepare for litigation. The doctrine does not apply when the materials would have been created in essentially the same form regardless of the litigation. The party withholding documents bears the burden of showing that the privilege or doctrine applies.

Exhibit 33

After reviewing Exhibit 33 privately, the court found that the clawed-back communications were protected by attorney-client privilege. The document contained communications between the New York City Department of Education’s in-house counsel and Department of Education staff about the agency’s compliance with legal requirements concerning a specific student. The court found that counsel was added to the email chain to respond in a legal capacity and prepare to provide legal advice and services.

The court therefore found that the defendants appropriately clawed back Exhibit 33 and did not decide whether the work-product doctrine also protected it. The court directed the defendants to file a redacted version by Friday, July 14, 2023, so that the clerk could substitute it for the unredacted version filed at ECF 250-34. The court noted that the exhibit was already under seal, so the privileged communications were not publicly accessible.

Exhibit 67

After reviewing Exhibit 67 privately, the court found that it was protected by neither attorney-client privilege nor the work-product doctrine. The defendants described the communications as exchanges between Department of Education staff and a Department of Education lawyer about transportation services for a student who had threatened legal action. The defendants did not identify which person in the email chain was a lawyer, although the court understood that the lawyer was Neal Solon. Mr. Solon was added at the end of the chain solely to be kept informed.

The court found no request for or provision of legal advice in the exchange. It also found that the defendants had not shown that the communications were created to help counsel prepare for litigation. Instead, the emails appeared to be business-related communications in which Department of Education staff performed their job of helping ensure supportive services for a student. The court found that the Department of Education had not shown that the emails would not have been created in the ordinary course of business to provide the student’s necessary services, even without a threat of litigation. The first email also explained the urgency by stating that the student had not been in school that school year, rather than by referring to the threat of legal action.

The court directed the defendants to reproduce Exhibit 67 in unredacted form for the plaintiffs by Friday, July 14, 2023. The clerk was respectfully requested to terminate the motion at ECF No. 262.