GUIDIVILLE RANCHERIA OF CALIFORNIA; a federally recognized Indian tribe; UPSTREAM POINT MOLATE, LLC, a California Limited Liability Corporation, Plaintiffs,
THE UNITED STATES OF AMERICA; KEN SALAZAR, the Secretary of the Department of the Interior; LARRY ECHOHAWK, the Assistant Secretary Indian Affairs; THE CITY OF RICHMOND, a California Municipality, Defendants.
ORDER REGARDING JULY 2, 2013 JOINT DISCOVERY LETTER
KANDIS A. WESTMORE, Magistrate Judge.
Upstream Point Molate, LLC ("Upstream") seeks an order compelling the production of certain legal memoranda authored by the City of Richmond's ("City") in-house and outside counsel. (Joint Ltr.; Dkt. No. 164 at 1). The City argues that the legal memoranda are subject to the attorney-client privilege and thus protected from disclosure. ( Id. at 3). Upstream asserts that the City waived the attorney-client privilege as to the legal memoranda when a councilmember quoted a portion of their contents in a letter he sent to an outside third party. ( Id. at 2).
This discovery dispute was referred to the undersigned. (Order of Reference; Dkt. No. 167). A hearing on the matter was held on Septembers 5, 2013. For the reasons set forth below, the court finds that the remaining portions of the legal memoranda are subject to the attorney-client privilege and thus protected from disclosure.
City Councilmember Thomas K. Butt sent a letter to Deputy Attorney General Janill L. Richards concerning a Land Disposition Agreement ("LDA") between the City and Upstream. (Joint Ltr., Ex. A). In that letter, Councilmember Butt quoted the contents of certain legal memoranda prepared by the City's in-house and outside counsel, stating his disagreement with those attorneys' conclusions and seeking the opinions of Deputy Attorney General Richards on the topic in light of a settlement agreement she purportedly authored in a related case. ( Id. at 2). Included as a separate attachment to the letter are two additional pages containing further legal analysis regarding the LDA,  presumably an additional excerpt from the legal memoranda at issue. ( Id. at 7, 8). The City Council acknowledged the exchange between Councilmember Butt and Deputy Attorney General Richards during an open City Council meeting, at which time the City Council also discussed the LDA and related issues. (Joint Ltr., Ex. B). During earlier discovery in this case, the City produced a copy of Councilmember Butt's letter. (Joint Ltr. at 2).
II. LEGAL STANDARD
Federal Rule of Civil Procedure 26(b)(1) permits "discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." The information sought "need not be admissible at trial" so long as it "appears reasonably calculated to lead to the discovery of admissible evidence." Id.
Federal Rule of Evidence 501 provides: "in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision." However, in cases "[w]here there are federal question claims and pendent state law claims present, the federal law of privilege applies." Agster v. Maricopa County, 422 F.3d 836, 839-40 (9th Cir. 2005) (citations omitted). See also United States v. Ruehle, 583 F.3d 600, 609 (9th Cir. 2009) (reversing district court's order due to erroneous application of state, not federal, privilege law). Federal common law recognizes the attorney-client privilege. See United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010); Ruehle, 583 F.3d at 609. That privilege attaches "(1) [w]here 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." Graf, 610 F.3d at 1156. "The party asserting the privilege bears the burden of proving each essential element." Id. (internal citations and quotations omitted). "Under federal law, the attorney-client privilege is strictly construed." Ruehle, 583 F.3d at 609.
Only the element of waiver is at issue here. See Joint Ltr. Upstream contends that the following events occasioned a waiver of the attorney-client privilege: (1) Councilmember Butt's disclosure of a portion of the contents of the legal memoranda in his letter to Deputy Attorney General Richard; (2) the ratification by the City Council of Councilmember Butt's conduct "at the time of his communication and again on May 18, 2010" during a subsequent open City Council meeting; and (3) the City's Council's production of Councilmember Butt's letter during earlier discovery in this case. Id. at 2. The City asserts that none of these events effected a waiver of the attorney-client privilege. Id. at 3, 4.
An entity can assert the attorney-client privilege. Upjohn Co. v. United States, 449 U.S. 383, 390, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (citing United States v. Louisville & Nashville R. Co., 236 U.S. 318, 336, 35 S.Ct. 363, 59 L.Ed. 598 (1915)); Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343, 348, 105 S.Ct. 1986, 85 L.Ed.2d 372 (1985) ("It is by now well established... that the attorney-client privilege attaches to corporations as well as to individuals.") (citation omitted). As an entity, a municipal organization may invoke the privilege. Ross v. City of Memphis, 423 F.3d 596, 603 (6th Cir. 2005) ("[A] municipality can assert the attorney-client privilege in civil proceedings."). See RESTATEMENT (THIRD) OF LAW GOVERNING LAWYERS §§ 73, 74 (2000).
"The privilege of governmental entities may be asserted or waived by the responsible public official or body. The identity of that responsible person or body is a question of local governmental law." Id. § 74 cmt. e. See Ross, 423 F.3d at 605 ("[G]enerally in conversations between municipal officials and the municipality's counsel, the municipality, not any individual officer, is the client."); In re Grand Jury Subpoena, 886 F.2d 135, 138 (6th Cir. 1989) (a city and its city council are the same entity for the purposes of the attorney-client privilege); Chase v. City of Portsmouth, 236 F.R.D. 263, 265 (E.D. Va. 2006) (concluding that because the appointment and removal of the city attorney was made at the pleasure of the city council, the city council was the city attorney's client and thus the only entity that could assert or waive privilege); Patricia C. Tisdale & Erin M. Smith, The Maverick Council Member: Protecting Privileged Attorney-Client Communications from Disclosure, 23 Colo. Law 63, 64 (1994) ("Where legal advice is provided to a city council during executive session, the client... is the municipal organization itself, and not the individual city council members. Therefore, only the city may waive the privilege.) (footnotes omitted). The Brown Act provides that "[a] person may not disclose confidential information that has been acquired by being present in a closed session [including a closed session concerning pending litigation]... to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information." CAL. GOV'T CODE § 54963(a).
A. Waiver by Disclosure.
Upstream's first argument is that Councilmember Butt, by sending his letter to Deputy Attorney General Richards, waived the attorney-client privilege as to the remaining portions of the legal memoranda quoted in that letter. Joint Ltr. at 1, 2. In response, the City asserts that "a city council can only authorize waiver of the privilege by vote or other similar approval by the council as a whole - the ...