EFTA00179762 Case 9:08-cv-80736-KAM Document 225 Entered on FLSD Docket 08/16/2013 Page 1 of 10 # UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson JANE DOE #1 and JANE DOE #2 UNITED STATES # JANE DOE #1 AND JANE DOE #2’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS THAT ARE NOT PRIVILEGED EFTA00179763 Case 9:08-cv-80736-KAM Document 225 Entered on FLSD Docket 08/16/2013 Page 2 of 10 COME NOW Jane Doe #1 and Jane Doe #2 (also referred to as “the victims”), by and through undersigned counsel, to move this Court to turn over to them numerous documents that to which the Government has asserted various privileges. All of the Government’s assertions of privilege are not well founded, for the reasons described in this pleading, and the Court should provide all of the documents to the victims.$^1$ The factual support for the arguments found in this memorandum is contained, inter alia, in the attached affidavit of Bradley J. Edwards, Esq. The victims have also concurrently filed itemized objections to the Government’s privilege log. ## I. General Responses to All Assertions of Privilege. Inadequate Privilege Log – The great bulk of the Government’s privilege assertions do not comply with the Court's requirement that the privilege log must “clearly identify[] each document[] by author(s), addressee(s), recipient(s), date, and general subject matter . . ..” DE 190 at 2. As a result of the Government's failures, it is impossible to even begin to determine which of the Government's assertions of privilege are valid. Failure to Prove Factual Underpinnings of Privilege Claim – Most of the Government’s privilege assertions rest on factual underpinnings (e.g., an attorney-client relationship is at issue, a deliberative process is at issue) that have not been proven by any materials in the record. Accordingly, these assertions of privilege are inadequate. See Bogle McClure, 332 F.3d 347, 1358 (11th Cir. 2003); Brown City of Margate, 842 F.Supp. 515, 520 1 Should the Court allow the Government to assert privilege with regard to any of the materials, the victims would then be free to argue that, as a remedy for the Government’s assertion of privilege, the Court should preclude the Government from denying the claims by the victims that would have been supported by the withheld information. See, e.g., Attorney General of the U.S. Irish People, Inc., 684 F.2d 928, 951 (D.C. Cir. 1982). 1 EFTA00179764 Case 9:08-cv-80736-KAM Document 225 Entered on FLSD Docket 08/16/2013 Page 3 of 10 (S.D. Fla. 1993) (government failed to prove attorney-client relationship), aff'd, 56 F.3d 1390 (11th Cir. 1995). Waiver of Confidentiality – Some of the Government’s assertions of privilege fail because it is clear that any confidentiality was waived by the presence of persons outside the confidential relationship. For example, some of the assertions of attorney-client privilege involve documents and correspondence sent to person outside of any attorney-client relationship. Government’s Fiduciary Duty to Crime Victims Bars Privilege - The Government cannot invoke privilege in the context of a Crime Victims’ Rights Act petition because it owes a fiduciary duty to the crime victims to use “best efforts,” 18 U.S.C. § 3771(c)(1), to protect their rights. See Solis v. Food Employers Labor Relations Ass'n, 644 F.3d 221, 226-27 (4th Cir. 2011) (noting that the attorney-client privilege does not apply “in the context of fiduciary relationships” and that “[t]his principle has been applied to fiduciary relationships beyond the traditional trust context”); see also In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 919-21 (8th Cir. 1997) (government attorneys have duty to report wrongdoing). Communications Facilitating Crime-Fraud-Misconduct Not Covered – Any privilege would be subject to a crime-fraud-misconduct exception. See In re Sealed Case, 754 F.2d 395, 399 (D.C. Cir. 1985) (applying exception to attorney-client privilege); Cox v. Administrator U.S. Steel & Carnie, 17 F.3d 1386, 1422 (11th Cir. 1994) (applying exception to work product claim). Such an exception applies to the facts of this case. Factual Materials Not Covered – Any privilege would only cover materials reflecting the confidential relationship, not factual materials. See, e.g., EPA v. Mink, 410 U.S. 73, 87-88 (1973) (“memoranda consisting only of compiled factual material . . . and severable from its 2 EFTA00179765 Case 9:08-cv-80736-KAM Document 225 Entered on FLSD Docket 08/16/2013 Page 4 of 10 context would generally be available for discovery by private parties in litigation with the Government."). Many of the materials at issue are factual materials. Documents Not Prepared in Anticipation of CVRA Litigation – The work product doctrine (as well as the investigative privilege) only applies to documents prepared by an attorney in anticipation of litigation, not to documents prepared in the ordinary course of business, pursuant to regulatory requirement, or for other non-litigation purposes. Solis v. Food Employers Labor Relations Ass'n, 644 F.3d 221, 231 (4th Cir. 2011). Many of the documents at issue here were not prepared in anticipation of litigation, and certainly not litigation about the Crime Victims’ Rights Act. See, e.g., Southern Union Co. v. Southwest Gas Corp., 205 F.R.D. 542, 549 (D. Ariz. 2002) (documents not protected by work product because not prepared in connection with case at hand). ## II. Specific Responses to Specific Assertions of Privilege. ## A. Attorney-Client Privilege. Ordinary Governmental Communications Not Covered – A general attorney-client privilege does not exist for ordinary governmental communications. See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 916-21 (8th Cir. 1997). Only communications concerning legal services covered – Any attorney-client privilege would be limited to communications made for purposes of facilitating the rendition of legal services to the Government client. See, e.g., Diamond v. City of Mobile, 86 F.R.D. 324 (D. Ala. 1978) (attorney-client privilege did not bar disclosure of statements made to the city attorney while conducting the internal investigation where the purpose of the investigation was 3