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Guidiville Rancheria of California v. United States

United States District Court, Ninth Circuit

December 13, 2013

THE UNITED STATES OF AMERICA, KEN SALAZAR, et al., and THE CITY OF RICHMOND, Defendants and Counterclaims.



On May 28, 2013, Defendants United States of America, Ken Salazar, and Larry Echohawk ("Federal Defendants") filed the Motion for Return of Inadvertently Released Document. (Dkt. No. 105.) Federal Defendants sought the return of the document under Federal Rule of Evidence 502(b) on the grounds that it was inadvertently disclosed as part of the voluminous administrative record in this matter, and that it is covered by both the attorney-client and deliberative process privileges. In conjunction with the motion, Federal Defendants filed a motion to seal the document, which had been filed in the public record in connection with a motion made by plaintiffs in this matter, subsequent to its inadvertent release.

The Court referred the motion to Magistrate Judge Kandis Westmore pursuant to 28 U.S.C. § 636(b)(1)(A). The magistrate judge heard argument on August 15, 2013, and issued a decision denying the motion on August 23, 2013.

The magistrate judge's order set forth two determinations. First, she found that the document was not covered by attorney-client privilege because it was disclosed prior to the litigation, and therefore the privilege was waived. Second, she found that the document was covered by the qualified deliberative process privilege, but ordered production because Plaintiffs' need for the evidence overrode the government's interest.

Federal Defendants filed their Motion for Relief From Pretrial Order on September 6, 2013. (Dkt. No. 188, "Motion for Relief".) Pursuant to Local Rule 72-2, the Court ordered the parties to file additional briefing on September 24 and October 1, 2013. For the reasons stated below, the Court finds that the document is covered by the attorney-client privilege and that no disclosure of the document or its contents has been established such that waiver of the privilege can be found. Further, Plaintiffs have not established a need for the document that overrides the deliberative process privilege. Accordingly, the Court GRANTS the Motion for Relief and GRANTS the Motions for Return of Inadvertently Released Document and to Seal.[1]


A magistrate judge's order on a non-dispositive motion may be modified or set aside if it is "clearly erroneous or contrary to law." FRCP 72(a). The magistrate's factual determinations are reviewed for clear error, and the magistrate's legal conclusions are reviewed to determine whether they are contrary to law. United States v. McConney, 728 F.2d 1195, 1200-1201 (9th Cir.1984) (overruled on other grounds by Estate of Merchant v. CIR, 947 F.2d 1390 (9th Cir.1991)). The clear error standard allows the court to overturn a magistrate's factual determinations if the court reaches a "definite and firm conviction that a mistake has been committed." Wolpin v. Philip Morris Inc., 189 F.R.D. 418, 422 (C.D.Cal.1999) (citing Federal Sav. & Loan Ins. Corp. v. Commonwealth Land Title Ins. Co., 130 F.R.D. 507 (D.D.C.1990)). The magistrate's legal conclusions are reviewed de novo to determine whether they are contrary to law. Perry v. Schwarzenegger, 268 F.R.D. 344, 348 (N.D. Cal. 2010). Accordingly, the Court will review Magistrate Judge Westmore's decision to determine whether any factual findings are "clearly erroneous" or any legal conclusions are "contrary to the law."


On May 14, 2013, Plaintiffs filed their Motions to Supplement and for Discovery. (Dkt. Nos. 100-101.) After reviewing Plaintiffs' Motions and the exhibits thereto, Federal Defendants' counsel noticed that Plaintiffs cited to a document, Bates stamped GVAR 001343-001354, which had been included in the administrative record and mislabeled in the index as a letter from the Department to the Tribe's Chairwoman. In fact, the document was a draft of the "Indian Lands Determination" prepared by the Solicitor's Office regarding the Point Molate area at issue in this litigation for the Assistant Secretary of the Indian Affairs Office ("the ASIAO"). In particular, the Solicitor's Office prepared a recommendation for the ASIAO as to whether land qualified for gaming under the Gaming Act. The ASIAO was to use this recommendation in preparing his final Indian Lands Determination. The inadvertently released draft Indian Lands Determination reflected the legal advice and opinion of the Solicitor's Office regarding qualification of the Tribe's land as "restored land" under the Gaming Act. The document was to be submitted from the Office of Indian Gaming to the Assistant Secretary - Indian Affairs for an ultimate decision. The document never received final approval from within the Solicitor's Office, was never adopted as the Office of Indian Gaming's recommendation, and was never accepted or issued by the ASIAO. (Declaration of Nancy Pierskalla, Dkt. No. 106-1, ¶4.) This document was inadvertently included in the administrative record rather than labeled as privileged and included in the privilege log. All other drafts were marked as privileged and withheld from inclusion in the administrative record. (Declaration of Reuben Schifman, Dkt. No. 105-1, ¶4.)

According to Federal Defendants, as part of the preparation of the administrative record, agency attorneys reviewed documents produced by the ASIAO, the Bureau of Indian Affairs, the Office of Indian Gaming, and the Office of the Solicitor of the Department of the Interior. Compiling the records took several months. ( Id. at ¶9-10.) Agency attorneys reviewed for relevance and then reviewed the documents against for determinations of privilege. ( Id. at ¶ 10.) After scanning and conversion of the documents to a producible electronic form, the documents were again reviewed by a Department of Justice attorney to ensure agreement with agency attorneys' privilege determinations and labeling. ( Id. at ¶12-14.) The administrative record was some 62, 000 pages in total and produced in electronic format. Despite this review process, the document at issue was mislabeled and not included on the privilege log (the "Production Disclosure").

Within a day of learning that the document had been included in the administrative record, Federal Defendants requested that Plaintiffs return the inadvertently privileged document. (Schifman Dec., Exh. A.) Plaintiffs would not agree.


A. Attorney-Client Privilege and Waiver

The attorney-client privilege protects confidential communications between an attorney and client made for the purpose of obtaining and giving legal advice. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). It is one of the oldest recognized privileges. Id. The purpose of the attorney-client privilege "is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Id. It applies to attorney-client relationships within the government, in which the agency is the client and the government attorney is counsel. See In re Cnty. Of Erie, 473 F.3d 413, 419 (2d Cir. 2007) (citation omitted); Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997); Ariz. Rehab. Hosp., Inc. v. Shalala, 185 F.R.D. 263, 269 (D. Ariz. 1998). Indeed, the privilege has been found to apply with "special force" in the government context since the policies underlying the privilege particularly favor encouraging government officials formulating policies in the public's interest to consult with counsel in conducting that public business. See Modesto Irrigation Dist. v. Gutierrez, 1:06-CV-00453 OWWDLB, 2007 WL 763370 (E.D. Cal. Mar. 9, 2007) (citing Erie, 473 F.3d at 419). The types of communications protected by the privilege may include such things as: confidential communications made by a client to an attorney to obtain legal services, United States v. Olano, 62 F.3d 1180, 1205 (9th Cir. 1995); legal advice given in the course of representing the client, United States v. Bauer, 132 F.3d 504, 509-09 (9th Cir. 1997); facts divulged by a client to his attorney in order to put the attorney in a position to render legal advice, Upjohn, 449 U.S. at 391; and correspondence or statements from the attorney that "reveal the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided, such as researching particular areas of law...." Olano, 62 F.3d at 1205.

Under FRE 502(b), when disclosure of a communication or information covered by the attorney-client or work product privilege is made in a federal proceeding, it will not operate as a waiver of the privilege if:

(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule ...

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