United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief U.S. District Court Judge.
before the Court is Plaintiff's Motion to Compel
Production (Dkt. 28). For the reasons stated below, the Court
will deny the motion.
James Cryer filed this action after being terminated as an
Idaho Department of Labor (“IDOL”) employee for
sending anonymous emails outlining alleged violations of
state law by individuals at the IDOL. Compl. at 2,
Dkt. 1. Mr. Cryer claims that his termination constituted
retaliation for engaging in constitutionally protected speech
as a private citizen, and in whistleblower activities
protected under Idaho Code § 6-2104(1)-(3). Id.
at 12-14. He further claims that IDOL violated his Fourth
Amendment rights in the course of investigating the emails,
by subpoenaing his cell phone records without probable cause.
Id. at 14-15.
Cryer has admitted to sending a series of anonymous emails to
IDOL employees between December 24, 2015 and April 26, 2016.
Pl.'s Br. at 2, Dkt 28-1. After receiving the
April 26, 2016 email and perceiving it to contain a threat,
Defendants launched an investigation to determine the source
of the emails. Def.'s Br. at 2, Dkt. 32. Based
on cell phone records obtained from Verizon, the Defendants
determined that Mr. Cryer was the likely sender.
Pl.'s Br. at 2, Dkt. 28-1. Defendants placed Mr.
Cryer on administrative leave, and asked the Idaho Attorney
General to perform an investigation to determine whether Mr.
Cryer's actions merited disciplinary action. Id.
Deputy Attorney General (“DAG”) Colleen Zahn was
assigned to conduct the investigation. Def.'s
Br. at 2, Dkt. 32. Ms. Zahn met with Mr. Cryer and
interviewed him regarding the emails. Id. During her
investigation, Ms. Zahn produced the memorandum which is the
subject of Mr. Cryer's motion. Id. Defendants
subsequently terminated Mr. Cryer. Pl.'s Br. at
3, Dkt. 28-1.
Cryer appealed his termination in an administrative
proceeding in front of the Idaho Personnel Commission.
Id. During that proceeding, Defendants provided Mr.
Cryer with a redacted version of a five-page document
entitled “Investigation of James Cryer and Anonymous
Threatening Emails” (“Investigation Memo”).
Id; Pl's Br. Ex 1, Dkt. 28-2. The Investigation
Memo is addressed to Defendant Jay Engstrom in his capacity
as Chief Operating Officer at IDOL. Pl's Br. Ex
1, Dkt. 28-2. It appears to contain at least three
sections. Id. The first section or sections are
entirely redacted. Id. at 2. The next section,
entitled “Background Facts, ” is redacted but for
the final paragraph. Id. at 3. The unredacted
paragraph details how IDOL identified the IP address from
which the emails were sent, contacted Verizon, and determined
that the cell phone number associated with the emails
belonged to Mr. Cryer. Id. A footnote to this
unredacted portion has also been redacted. Id. The
next section is titled “Cryer Interview” and
recounts Ms. Zahn's conversation with Mr. Cryer regarding
the emails. Id. at 3-5. Following this section is
another redacted portion of the memo. Id. at 5.
Cryer filed this motion asking the Court to compel Defendants
to produce an undredacted version of the Investigation Memo.
Mr. Cryer argues that by producing the memo in redacted form,
as well as additional documents related to Ms. Zahn's
investigation of the facts underlying his termination,
Defendants have conceded that documents related to Ms.
Zahn's investigation are neither protected by
attorney-client privilege nor constitute attorney work
product. Id. at 4. In the alternative, Mr. Cryer
argues that by producing such documents, even in redacted
form, Defendants have waived any such privilege. Id.
at 4. Defendants argue that the redacted portions of the
Investigation Memo are protected by the attorney-client
privilege because they contain “a summary of Defendant
Engstrom's communications to DAG Zahn seeking legal
advice” regarding the disciplinary investigation, as
well as communications from DAG Zahn providing such advice.
Def.'s Br. at 3. Although Defendants also listed
the work-product doctrine as a basis for withholding the
redacted portions of the memo in their privilege log,
see, e.g., Pl.s' Br. Ex. 3 at 2, Dkt.
28-1, in their brief they argue only that the redactions are
justified under the attorney-client privilege.
the party seeking to withhold documents from discovery on the
basis of attorney-client privilege has the burden of proving
that the privilege applies to the documents in question.
See In re Excel Innovations, Inc., 502 F.3d 1086,
1099 (9th Cir. 2007). The attorney-client privilege protects
confidential disclosures made by a client to an attorney in
order to obtain legal advice as well as an attorney's
advice in response to such-disclosures. See United States
v. Chen, 99 F.3d 1495 (9th Cir.1996). The privilege only
protects disclosure of communications; it does not protect
disclosure of the underlying facts by those who communicated
with the attorney. Upjohn Co. v. United States, 449
U.S. 383, 395 (1981).
person is a lawyer does not make all communication with that
person privileged. Chen, 99 F.3d at 1501.
“The privilege applies only when legal advice is sought
from a professional lawyer in his capacity as such.”
Id. If a person retains a lawyer for advice, a
rebuttable presumption arises that the lawyer is retained for
legal advice, unless the matter at issue “clearly
appears to be lacking in aspects requiring a legal
advice.” Id. (quoting 8 John H. Wigmore,
Evidence § 2296, at 566-67 (McNaughton rev. ed.
1961)). Conclusory statements categorizing the matter at
issue as non-legal are insufficient to rebut that
presumption. Id. (“Calling the lawyer's
advice ‘legal' or ‘business' advice does
not help in reaching a conclusion; it is the
conclusion.”). Rather, “the presumption is
rebutted when the facts show that the lawyer was
‘employed without reference to his knowledge and
discretion in the law.'” Id.
issue is whether the Defendants have carried their burden of
showing that the redacted portions of the Investigation Memo
contain communications subject to the attorney-client
privilege. The Court finds that they have. Defendants
assert that the redacted portions of the Investigation Memo
contain communications between Defendant Engstrom and DAG
Zahn seeking and relaying legal advice related to potential
disciplinary actions against the Plaintiff. Unless DAG Zahn
was engaged in the investigation in a non-legal capacity,
such communications would presumptively fall within the
protection of attorney-client privilege. See Chen,
99 F.3d at 1501. Plaintiff has not shown that the
disciplinary investigation did not require DAG Zahn to
provide legal advice. Nor has he shown that she was retained
without reference to her knowledge and discretion in the law.
Thus, the presumption holds. Id.
further argues that the redacted portions of the
Investigation Memo are not protected by the attorney-client
privilege because the memo was produced as part of a factual
investigation. Attorney-client privilege does not protect
disclosure of facts underlying a matter by those who
communicated with the attorney. Upjohn, 449 U.S at
395. But there is no evidence to support Plaintiff's
contention that the Investigation Memo does not contain both
facts and legal advice. Indeed, it seems entirely reasonable
that Ms. Zahn would include in her memo a summary of
conversations with Defendant Engstrom about the legal issues
surrounding any potential disciplinary actions, and the legal
advice sought in relation thereto. Nor would it be
unreasonable for Ms. Zahn to provide legal advice,
preliminary or otherwise, alongside or at the conclusion of
any summary of the underlying facts. Indeed, Defendants
assert that the redacted portions of the memo are protected
under the attorney-client privilege precisely because they
contain such communications. Plaintiff have provided no
evidence to suggest otherwise, and instead rely on conclusory