United States District Court, M.D. Louisiana
May 22, 2015
UNITED STATES OF AMERICA
STATE OF LOUISIANA AND LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, et al.
RULING AND ORDER ON UNITED STATES' MOTION TO COMPEL
RICHARD L. BOURGEOIS, Jr., Magistrate Judge.
Before the Court is the United States' Motion to Compel the Production of Documents Asserted to be Privileged by Defendants, the Louisiana Department of Health and Hospitals (DHH) and the Louisiana Department of Children and Family Services (DCFS). (R. Doc. 227). In its Motion, the U.S. objects to 15 categories of documents withheld by DHH and DCFS as protected by either the work product doctrine, joint defense/common interest privilege or the deliberative process privilege. (Defs.' Sealed Exhs. 1-15, R. Docs. XXX-X-XXX-XX). The U.S. has filed 15 documents, which are "exemplary of the  general categories of documents at issue, " in the record as Sealed Exhibit Nos. 1-15, and asks that the Court make a privilege determination as to those items. (R. Doc. 227-1 at 4); (R. Docs. XXX-X-XXX-XX).
In their Opposition, DHH and DCFS represent that after reviewing the documents at issue, they have withdrawn their "privilege claim as to all but one of the items at issue." (R. Doc. 233 at 8-9). Using a table in their Opposition, which lists the 15 Sealed Exhibits, DHH and DCFS explain that those documents contained in Sealed Exhibit Nos. 1-9 and 11-15 are "NOT PRIVILEGED." (R. Doc. 233 at 8-9). According to DHH and DCFS, this "table is an accurate representation of [their] treatment of the other items listed in the claw back log, i.e., a majority of the documents claimed on the log will be released to the USA." (R. Doc. 227-1). However, DHH and DCFS indicate that they are still reviewing the remaining documents listed on their claw-back log to determine whether they will maintain their claims of privilege over any of the remaining documents. (R. Doc. 233 at 5). They ask that the Court withhold ruling on the Motion to Compel and grant them additional time of "10-14 days" to review the claw-back log and notify the U.S. of those items over which they "will continue to assert privilege." (R. Doc. 233 at 5).
Following the Opposition, the U.S. submitted a Reply brief confirming that DHH and DCFS have withdrawn their claims of privilege over the documents in Sealed Exhibit Nos. 1-9 and 11-15. The U.S. also indicates it has no objection to DHH and DCFS's request for additional time to review the remaining documents on their claw-back log to determine which of those items, if any, they will continue to claim are privileged. The Court has withheld ruling as requested by the parties to provide additional time.
In a letter dated May 19, 2015, DHH and DCFS explain that they have completed their review of the claw-back log and withdrawn their "privilege assertion on 596 of the 661 documents, maintaining complete privilege on 41 documents, and claiming partial privilege on 24 documents." (Attachment 1); (R. Doc. 233 at 8-9); (R. Doc. 228-10). DHH and DCFS also maintain their asserted privilege over those emails in Sealed Exhibit No. 10, although "DHH concedes the portion in question could be redacted." (R. Doc. 233 at 9). A copy of the May 19, 2015 letter is attached to this Order.
Since withdrawing their privilege assertions over 596 of the documents, DHH and DCFS have provided a "revised privilege log and partially redacted documents" to the U.S. (Attachment). According to DHH and DCFS, the U.S. "has not yet notified counsel for DHH/DCFS whether there is any further dispute on these revised privilege assertions." (Attachment). Consistent with this representation, the U.S. has not sought the Court's assistance in resolving any dispute over the revised privilege log. Considering the representations made in the Opposition and Reply, and the May 19, 2015 letter (Attachment),
IT IS ORDERED that the United States' Motion to Compel (R. Doc. 227) is GRANTED to the extent it seeks production of Sealed Exhibit Nos. 1-9 and 11-15 (R. Docs. XXX-X-XXX-X, XXX-XX-XXX-XX) and other documents on the privilege claw back log consistent with these exhibits. As this production has already occurred, no further action is required.
Concerning Sealed Exhibit No. 10, the United States' Motion to Compel is GRANTED in part and DENIED in part. To the extent it has not already done so, DHH and DCFS shall provide, by May 26, 2015, a proposed redacted version consistent with the concession acknowledged in their opposition memorandum or, if they have not already done so, specifically inform the U.S. that they maintain an assertion of privilege over the entire contents,  so that the U.S. may determine whether to persist in seeking an Order compelling the complete or partial production of that document.
To the extent any issues remain over the remaining documents either withheld or redacted by DHH and DCFS, the parties have until May 29, 2015 to file motions with respect to those documents. Any filing must be accompanied by sealed copies of all the documents at issue in that particular motion and specifically set forth the party's position regarding each individual document.
Re: United States of America v. State of Louisiana, et al USDC, MDLA, Docket No. 11:470
Dear Magistrate Judge Bourgeois,
I am writing at the request of Ellen in your office to provide you my understanding of what is still in dispute related to USA's Motion to Compel Production filed against D1111 and DCFS, R. Doc. 227. As noted in DHH/DCFS' Opposition (R. Doc. 233), of the 15 items selected by the USA for the Court's review, Defendants were only maintaining their privilege assertion on one item - Exhibit 10. As stated, in Defendants' Opposition, this email thread is privileged because it contains and/or references in pertinent part, DHH's views, mental impressions. opinions regarding legal questions at issue in this case.
The Court should also be aware that DHH/DCFS completed the re-review of all 661 documents (inclusive of the 15 exhibits attached to the USA's Motion to Compel, R. Doc. 227) initially included in the claw back log. On April 29, 2015, DHH/DCFS notified the USA that it was withdrawing its privilege assertion on 596 of the 661 documents, maintaining complete privilege on 41 documents, and claiming partial privilege on 24 documents. Defendants continue to assert their privilege assertion as to the emails contained in Exhibit 10. A revised privilege log and partially redacted documents have been provided to the USA. At this time, the USA has not yet notified counsel for DHH/DCFS whether there is any further dispute on these revised privilege assertions.
Please let us know if we can provide any additional information to the Court.