ORDER DENYING FEDERAL DEFENDANTS' MOTION TO COMPEL THE RETURN OF AN INADVERTENTLY RELEASED DOCUMENTAND DENYING JOINT ADMINISTRATIVE MOTION TO FILE UNDER SEAL
KANDIS A. WESTMORE, Magistrate Judge.
Defendants Sally Jewell, in her official capacity as Secretary of the United States Department of the Interior, and Kevin Washburn, in his official capacity as Assistant Secretary - Indian Affairs of the United States Department of the Interior ("Defendants") move to compel the return of a document which they claim is privileged, and was inadvertently released to Plaintiffs Guidiville Rancheria of California and Upstream Point Molate through its mistaken inclusion in the administrative record in this case. See Dkt #105.
The motion to compel was referred to the undersigned. Relatedly, the parties to this discovery dispute filed a joint administrative motion to file the document at issue under seal. See Dkt #115.
The document at issue is a draft of the Indian Lands Determination prepared by attorneys within the Solicitor's Office of the Department of Interior and other agency officials. Defendants argue that the document is privileged under the attorney-client and deliberative process privileges; that it should be returned pursuant to Federal Rule of Evidence 502(b); and that documents of the same "subject matter" as the document at issue should also be protected. Plaintiffs argue that any privileges were waived years ago when the document or the contents of the document was released to members of the public, and alternatively, that Defendants have not met the 502(b) standard.
A hearing on the motion to compel was held on August 15. Scott Crowell appeared for Plaintiff Guidiville; Dean Hanley, Garrett O'Keefe, and Shona Armstrong appeared for Plaintiff Upstream; Ben Schifman appeared for the government; and Arturo Gonzalez appeared for the City of Richmond. For the reasons explained below, the Court DENIES Defendants' motion and DENIES the joint motion to file under seal.
Defendants argue that the document at issue is protected by the attorney-client and deliberative process privileges, that the privileges have not been waived, and that the document was inadvertently disclosed under Federal Rule of Evidence 502.
A. The attorney-client privilege does not protect the document, because Defendant has not met its burden of showing that the privilege was not waived.
Defendants assert that the document at issue is protected by the attorney-client privilege. Plaintiffs argue that it is not, because the contents of the document were disclosed years ago, before the document was included in the administrative record in this case.
An eight-part test is used to determine whether the attorney-client privilege applies. "(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived." United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010) (citations omitted). "Because it impedes full and free discovery of the truth, the attorney-client privilege is strictly construed." Id. (citation omitted).
Defendants assert, and Plaintiffs do not dispute, that the document at issue was prepared by attorneys in the Solicitor's Office for the Assistant Secretary - Indian Affairs-the attorney's client-during the course of legal representation, for the purpose of providing legal advice regarding whether the Tribe's land qualified as "restored" for the purposes of the Lands Determination. Thus, the only disputed issue is whether the attorney-client privilege has been waived.
As explained above, the attorney-client privilege is strictly construed, and it is Defendants' burden to prove every element, including that the privilege was not waived. See Weil v. Inv./ Indicators, Research & Mgmt., Inc., 647 F.2d 18, 25 (9th Cir. 1981) ("As with all evidentiary privileges, the burden of proving that the attorney-client privilege applies rests not with the party contesting the privilege, but with the party asserting it... One of the elements that the asserting party must prove is that it has not waived the privilege.").
A party may waive the attorney-client privilege through "voluntary disclosure of the content, " and the waiver will extend "to all other communications on the same subject." Id. at 24-25 (finding that where a party had "disclosed the content of a privileged communication, " its "bare assertion that it did not subjectively intend to waive the privilege is insufficient to make out the necessary element on nonwaiver").
On the other hand, involuntary disclosures-such as where a document was intercepted despite reasonable precautions-do not automatically waive the privilege. In re P. Pictures Corp., 679 F.3d 1121, 1126-27 (9th Cir. 2012). See Dukes v. Wal-Mart Stores, No. 01-2252 CRB JSC, 2013 WL 1282892 (N.D. Cal. March 6, 2013) (where leaked document's disclosure was involuntary and unauthorized, and Wal-Mart provided evidence that: the document was clearly marked as attorney-client privileged; was only distributed to a very limited set of attorneys and executives; and the recipients were specifically instructed that the ...