TABLE OF AUTHORITIES

Page

Cases

AAMCO Transmissions Inc. v. Marino,

No. CIV. A. 88-5522, 1991 WL 193502 (E.D. Pa. 1991) ........................... 28

Bowne of New York City, Inc. v. AmBase Corp.,

150 F.R.D. 465 (S.D.N.Y. 1993) ................................................................ 24

Caruso v. Grace,

No. 11 CIV. 2353, 2012 WL 2497274 (S.D.N.Y. June 27, 2012)............... 22

Celanese Corp. v. Clariant Corp.,

No. 3:14-CV-4165-M, 2015 WL 9269415 (N.D. Tex. Dec. 21, 2015)......... 24

Diversified Indus., Inc. v. Meredith,

572 F.2d 596 (8th Cir. 1977) ...................................................................... 29

Doe v. A Corp.,

709 F.2d 1043 (5th Cir. 1983) .................................................................... 39

EEOC v. Shell Oil Co.,

466 U.S. 54 (1984)...................................................................................... 17

Estate of Manship v. United States,

232 F.R.D. 552 (M.D. La. 2005)............................................................ 24, 37

Fisher v. United States,

425 U.S. 391 (1976).................................................................................... 19

FTC v. TRW,

628 F.2d 207 (D.C. Cir. 1980)..................................................................... 20

Freeman v. County of Bexar,

142 F.3d 848 (5th Cir. 1998)..................................................................... 31

Page

General Telephone Co. of the Northwest v. EEOC,

446 U.S. 318 (1980)..................................................................................... 16

Illinois Central R.R. Co. v. Harried,

No. 5:06cv160, 2010 WL 583938 (S.D. Miss. Feb. 16, 2010) .................... 34

In re Auclair,

961 F.2d 65 (5th Cir.1992) ......................................................................... 13

In re Avantel, S.A.,

343 F.3d 311 (5th Cir. 2003)................................................................. 13, 37

In re the County of Erie,

473 F.3d 413 (2d Cir. 2007) ................................................................. 32, 33

In re Grand Jury Investigation,

599 F.2d 1224 (3d Cir. 1979) ..................................................................... 19

In re Grand Jury Subpoena,

599 F.2d 504 (2d Cir. 1979) ....................................................................... 29

In re John Doe,

675 F.2d 482 (2d Cir. 1982) ..................................................................... 31

In re Sealed Case,

676 F.2d 793 (D.C. Cir. 1982)......................................................... 19, 28, 31

In re Universal Serv. Fund Tel. Billing Practices Litig.,

232 F.R.D. 669 (D. Kan. 2005)................................................................... 26

In re Vioxx Products Liab. Litig.,

501 F. Supp. 2d 789 (E.D. La. 2007).......................................................... 29

Jones v. Flagship International,

793 F.2d 714 (5th Cir. 1986) ...................................................................... 39

Kerr v. U. S. Dist. Court for Northern Dist. of California,

426 U.S. 394 (1976) ................................................................................... 36

Page

King v. Univ. Healthcare, K,C,

645 F.3d 713 (5th Cir. 2011)................................................................. 13, 21

Koumoulis v. Indep. Fin. Mktg. Grp., Inc.,

295 F.R.D. 28 (E.D.N.Y. 2013)............................................................. 27, 30

Kramer v. Raymond Corp.,

No. CIV. 90-5026, 1992 WL 122856 (E.D. Pa. 1992) ................................ 28

Loza v. Apfel,

219 F.3d 378 (5th Cir. 2000)....................................................................... 37

Lugosch v. Congel,

No. CIV. 1:00-CV-0784, 2006 WL 931687 (N.D.N.Y. Mar.7, 2006) ......... 32

Matter of Walsh,

623 F.2d 489 (7th Cir. 1980)....................................................................... 23

Morgan v. N.Y. State Dep’t of Env’t Conservation,

9 A.D.3d 586, 588, 779 N.Y.S.2d 643 (2004) .......................................... 34

Motely v. Marathon Oil Co.,

71 F.3d 1547 (10th Cir. 1995)............................................................... 23, 38

Muro v. Target Corp.,

250 F.R.D. 350 (N.D. Ill. 2007)................................................................... 27

Navigant Consulting, Inc. v. Wilkinson,

220 F.R.D. 467 (N.D. Tex. 2004).......................................................... 23, 27

Nutmeg Ins. Co. v. Atwell, Vogel & Sterling A Div. of Equifax Servs., Inc.,

120 F.R.D. 504 (W.D. La. 1988)........................................................... 20, 22

Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am.,

254 F.R.D. 238 (E.D. Pa. 2008)................................................................... 26

S.E.C. v. Microtune,

258 F.R.D. 310 (N.D. Tex. 2009).................................................... 24, 25, 27

Page

Stafford Trading, Inc. v. Lovely,

No. 05 C 4868, 2007 WL 1238915 (N.D. Ill. Apr. 26, 2007)...................... 30

United States v. Bump,

605 F.2d 548 (10th Cir. 1979) .................................................................... 34

United States v. ChevronTexaco Corp.,

241 F. Supp. 2d 1065 (N.D. Cal. 2002)....................................................... 26

United States v. Constr. Prod. Research, Inc.,

73 F.3d 464 (2d Cir.1996) .................................................................... 33, 36

United States v. El Paso Co.,

682 F.2d 530 (5th Cir. 1982)........................................................... 20, 25, 30

United States v. Morton Salt Co.,

338 U.S. 632 (1950) ................................................................................... 17

United States v. Pipkins,

528 F.2d 559 (5th Cir. 1976)....................................................................... 34

United States v. Robinson,

121 F.3d 971 (5th Cir. 1997) ............................................................... passim

United States v. Zolin,

809 F.2d 1411 (9th Cir. 1988)..................................................................... 37

491 U.S. 554 (1989)........................................................................ 19, 36, 37

Upjohn Co. v. United States,

449 U.S. 393 (1981).................................................................. 19, 30, 33, 35

Von Bulow v. von Bulow,

811 F.2d 136 (2d Cir. 1987)........................................................................ 20

Willy v. Admin. Review Bd.,

423 F.3d 483 (5th Cir. 2005)....................................................................... 39

Page

Williams v. Sprint/United Management Co.,

No. 03-2200, 2006 WL 266599 (D. Kan. Feb. 1, 2006).............................. 25

Statutes

28 U.S.C. § 1291.............................................................................................. 1

28 U.S.C. § 1331.............................................................................................. 1

28 U.S.C. § 1337.............................................................................................. 1

28 U.S.C. § 1343.............................................................................................. 1

28 U.S.C. § 1345.............................................................................................. 1

Equal Pay Act of 1964,

29 U.S.C. § 206(d)................................................................................... 1, 16

29 U.S.C. § 217 ............................................................................................ 1

National Labor Relations Act,

29 U.S.C. § 161........................................................................................... 17

Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e................................................................................ passim

Rules and Regulations

Fed.R.App.P. 4(a)(1)(B)................................................................................... 1

Fed.R.App.P. 28.1(e)(2) ................................................................................. 41

Fed.R.App.P. 32(a) ........................................................................................ 41

Fed.R.Civ.P. 26(a)(5)(A)................................................................................. 20

Page

Fed.R.Civ.P. 72(b)(3) ..................................................................................... 31

Fed. R. Evid. 501............................................................................................ 19

Fifth Circuit Rule 28.2.1................................................................................... ii

Miscellaneous Authorities

1 Paul R. Rice,

Attorney Client Privilege in the United States § 7:5 (2d ed.1999) ............ 32-33

STATEMENT OF JURISDICTION

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) appeals from an order denying enforcement of a subpoena issued pursuant to Section 10 of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-9 (“Title VII”) and the Equal Pay Act of 1963, 29 U.S.C § 206(d) (“EPA”). The district court had jurisdiction of the case under 28 U.S.C. §§ 1331 (federal question), 1337 (statute regulating commerce), 1343 (civil rights statute) and 1345 (suit by a federal agency), 42 U.S.C. §2000e-5(f)(3) and 29 U.S.C.§ 217. The district court entered final judgment on March 21, 2016, disposing of all claims with respect to all parties, and the Commission filed a timely notice of appeal on May 20, 2016. Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Did the district court err when it summarily affirmed, without in camera review of the withheld communications, the magistrate’s conclusion that BDO’s vaguely-worded privilege log, standing alone, was sufficient for BDO to meet its burden of proving that attorney-client privilege protects those communications because, according to the magistrate, “anything that comes out of that lawyer’s mouth is legal advice” and is, therefore, privileged?

2. Did the district court err when it granted BDO’s protective order grounded in the same improperly broad ruling that anything and everything communicated between an attorney – whether outside or in-house counsel – and a corporate employee is privileged?

STATEMENT OF THE CASE

A. Nature of the Case and Course of Proceedings

The Commission seeks enforcement of an administrative subpoena issued pursuant to its ongoing investigation of a Title VII and Equal Pay Act charge filed against BDO. The EEOC began an investigation after receiving a charge from Hang Bower, BDO’s Human Resources Director, asserting discrimination and retaliation on an individual and class-wide basis. EEOC has not yet determined whether it believes BDO violated Title VII and/or the Equal Pay Act. Among the unanswered questions is whether BDO had a practice of subjecting female and non-white employees, including Bower, to adverse terms and conditions of employment and retaliating against them for engaging in activity protected by Title VII, and whether BDO blocked its own human resources personnel from investigating claims of discrimination in an effort to shield high ranking male managers and managerial staff. To shed light on these issues, EEOC issued an administrative subpoena seeking information that included communications and other documentation related both to Bower’s personal discrimination allegations and to discrimination allegations of others about which Bower learned while working for BDO. Ultimately, BDO withheld 278 documents in their entirety, claiming they were covered by attorney-client privilege. On December 15, 2015, EEOC filed an application with the district court for an order to show cause why its administrative subpoena should not be enforced. Record on Appeal (“ROA”) 475-479.

The matter was assigned to a magistrate. In an order dated February 11, 2016, the magistrate denied enforcement of the subpoena, holding that all of the withheld communications were privileged in their entirety. ROA133-35. The magistrate also issued a protective order that barred EEOC from communicating with the charging party or other BDO current or former employees about any conversations with in-house or outside counsel regardless of content; required EEOC to disclose all such conversations that have occurred and produce notes of such conversations with EEOC work product redacted; and instructed EEOC to return to BDO all documents that may reflect what the magistrate considered to be privileged communications and destroy all internal notes created when reviewing such documents. Id. The Commission filed timely objections with the district court. By order dated March 21, 2016, the district court summarily affirmed the magistrate’s order. ROA442. On May 20, 2016, EEOC filed a notice of appeal. ROA443-45.

B. Statement of Facts

Respondent BDO provides financial and consulting services to companies. In February 2007, BDO hired Hang Bower, who is female, as a Human Resources (“HR”) Manager. ROA594 (BDO’s 8/2014 position statement). In February 2011, BDO promoted Bower to Executive Director of Human Resources (“HR Director”) (with a title change in 2013 to Chief Human Resources Officer (“CHRO”)) and in July 2012, Bower began performing Chief Compliance Officer (“CCO”) duties in addition to those of HR Director. ROA566 (Bower’s EEOC charge). On September 20, 2012, BDO appointed a male, John Lucas, as BDO’s CCO. ROA599. As of that date, Bower no longer performed CCO responsibilities and instead continued to perform only her duties as the highest ranking HR official. ROA566, 594. Two months later, BDO began requiring HR to notify BDO’s office of general counsel of complaints including discrimination complaints. Upon notification, the general counsel would obtain input from the Chief Executive Officer and the Chief Operating Officer so that the general counsel’s office “could provide guidance and instruction on handling the investigation.” ROA595. On January 15, 2014, Bower’s employment ended. ROA566.

On July 9, 2014, Bower filed a charge with EEOC alleging BDO subjected her “and other female employees . . . to gender discrimination, retaliation and a hostile work environment from on or about 2011 until January 14, 2014, when [she] was constructively discharged.” Id. Specifically, Bower stated that beginning in approximately 2011, BDO’s “top corporate management shielded . . . male manager[s]” accused of discrimination by “not permit[ting]” Bower to “appropriate[ly] investigat[e]” allegations lodged against them by female subordinates. Id. Bower also alleged that between 2011-13, she “oppos[ed] . . . instructions to not permit Filipino accountants to transfer to offices in the continental U.S. and to also give priority to transferring white staffers in Europe and Australia preference over possible transferees who were non-white.” Id. As a result of her opposition and her other attempts to investigate discrimination claims fully, Bower alleged, BDO retaliated. Id.

According to her charge, the retaliation included removing Bower from the CCO position in October 2012 and replacing her with “a Caucasian male who did not have any human resources experience.” Id. Bower further alleged that BDO retaliated by “removing [her] from the firm’s leadership meetings, decreasing [her] responsibilities as HR Director/CHRO, issuing [her] retaliatory reprimands, and ordering [her] and other staffers to no longer investigate certain managerial employees, . . . improperly strip[ing] her” of her authority to investigate because of her “expressed determination to properly investigate several women’s gender claims concerning an office managing partner (who was male) and other claims of discrimination.” Id.

On August 18, 2014, BDO issued its position statement in response to Bower’s charge, denying the allegations and stating that her assertion that she served as CCO was a “delusion” that “call[ed] into question Charging Party’s credibility and sanity.” ROA593.

EEOC issued its first Request for Information (“RFI”) in October 2014 followed by two additional RFIs in November 2014 and June 2015. ROA601-614, 616-628, 643-651. The RFIs sought information related both to the individual and class-wide claims contained in the charge. Id. BDO refused to provide any information related to the class-wide claims, arguing that EEOC has authority only to investigate matters related to Bower’s individual claim. ROA629, 639-640.

BDO also refused to comply with some requests related to Bower’s individual claim on the ground of attorney-client privilege. ROA640-641. In its November 2014 request for information, EEOC addressed BDO’s concerns regarding attorney-client privilege:

Remembering that our investigations are confidential and not disclosed to the public, if you still assert any privilege on behalf of BDO, you will have to submit a privilege log which clearly articulates the bate stamp range, and the bases for each asserted privilege, as well as the number or numbers of each such proposition (set forth in the letter) as to which the purported confidential document relates.

ROA617. Notwithstanding this letter, BDO did not submit a privilege log to EEOC in response. ROA664-665.

BDO also argued throughout the investigation that EEOC was eliciting and Bower was revealing attorney-client privileged communications between Bower and BDO’s in-house and outside counsel. See, e.g., ROA629-42. BDO demanded that any EEOC investigator or “Houston staff person” having knowledge of “privileged communications” be barred from investigating Bower’s charge. Id. at 629-30, 640-41.

In its final RFI in June 2015, EEOC narrowed its requests, honing in on factual propositions related to the substantive information BDO had provided. ROA643-651. By letter dated June 23, 2015, BDO reiterated its arguments regarding the propriety of class claims and the existence of privilege. ROA652-656. BDO did not provide any responsive or additional information. Id.

On July 14, 2014, EEOC informed BDO that the concerns it raised “do not provide a basis for delaying the investigation of issues.” ROA151. On that same date, EEOC issued its subpoena, seeking information similar to the June 2015 RFI. ROA570-576. In response, BDO provided some information but refused to reveal much of the information subpoenaed and, on July 28, 2015, BDO petitioned the Commission to revoke or amend the subpoena. ROA580-590. BDO argued that the information requested was not relevant and was unduly burdensome, and reasserted its argument that some of the requested information was protected by attorney-client privilege.[1] Id. On October 21, 2015, EEOC issued a determination finding that BDO raised no grounds requiring revocation or modification of the subpoena. ROA514-544. As regards BDO’s privilege claim, the determination noted that “BDO has made broad and sweeping objections without providing a privilege log or otherwise demonstrating why the requested documents are privileged.” ROA543.

After EEOC issued its determination, BDO provided some documents but continued to withhold many. Eventually, BDO created a privilege log of documents as to which it asserted attorney-client privilege, with only vague descriptions of each entry. Due to BDO’s failure to comply fully with the subpoena, including the lack of specificity in BDO’s privilege log, EEOC filed this subpoena enforcement action on December 10, 2015. ROA475-504. The matter was referred to a magistrate. Prior to the February 9, 2016, hearing before the magistrate, EEOC and BDO reached agreement on all but 278 documents listed in the privilege log. ROA140-164.

The entries on the privilege log reference “confidential” memos, emails or other documents generally. ROA140-164. Many of the privilege log entries are incomplete, stating only that legal advice was being sought or offered regarding “Bob Pearlman” or “Tina Johnson” and nothing more. See, e.g., ROA142-144, entries 24-32 (“Email to outside counsel seeking legal advice re: Tina Johnson complaint”); id at 152, 154, entries 126-130, 154, 157 (“Email to/from outside counsel seeking/providing legal advice re: Bob Pearlman investigation re: his behavior.”). Some of the documents BDO claims are subject to the attorney-client privilege are communications between non-attorneys, with counsel “cc’d” (see, e.g., id. at 140, 153, 156, entries 13, 135, 168), while others have no attorney party to the communication. Id. at 140-41, 144, 147-48, 151-53, 160, 163, entries 6-8, 15-16, 21, 45-49, 78, 80, 88, 95-96, 116, 131, 144, 147, 238-39, 242, 249, 257-62, 266, 271-73. Many of the documents identified as emails in the log are two to four pages, but the log does not indicate whether the document is one email or multiple e-mails in a single string, and, if a string, which part constitutes the privileged component. See, e.g., id. at 140-143, entries 7 (11 pages), 8 (4 pages), 16 (11 pages), 28 (4 pages), 29 (4 pages).

The log also fails to identify adequately the authors or recipients of the emails. It is not possible to determine from the face of the log the identities of all persons, if any, who were copied on the e-mail or, if a string, the identity of those in the string and whether they are properly considered to be within the confidential sphere in this matter. Five entries fail to list any author or recipient at all, id at 147-48, 152, 154, 156, entries 70, 85, 125, 150, 174, 178; others fail to list any recipient. Id. at 160,162, entries 234, 235, 254. Finally, the log does not identify the role of each participant in the communication.

In its show cause application, EEOC argued for production of the documents or, in the alternative, for the magistrate to conduct an in camera review. ROA497-502. On February 4, 2016, BDO filed its response, which included both an opposition to EEOC’s requested relief and an affirmative request for “protection” from the EEOC’s investigation. ROA35-89. BDO asked the court to (a) enjoin EEOC from communicating with Bower or other BDO employees about their conversations with BDO inside or outside counsel; (b) require EEOC to prepare a log “setting forth any information that Bower or any other BDO employees or former employees has already revealed about their conversations with BDO’s in-house or outside counsel, including the person who provided the information, the date such information was provided, and the substance of the communication”;

(c) turn over all notes of such conversations; and (d) return to BDO “documents containing privileged communications” and destroy all copies and internal notes/documents created on the basis of those documents. ROA52-54.

C. Rulings Below

1. Magistrate’s Decision

On February 9, 2016, the magistrate denied enforcement of the subpoena and also denied EEOC’s request that the magistrate conduct an in camera review of the documents on the ground that “the privilege log seems adequate.” ROA 179. The magistrate rejected EEOC’s argument that BDO, as the party resisting disclosure, failed to meet its burden to substantiate its privilege claim because the only evidence BDO provided were logs and those logs were fatally vague and incomplete. She noted that BDO is “making the argument” that the logs as written, without more, sufficiently demonstrated BDO lawyers were involved. Id. at 170.

The magistrate held that the privilege log is sufficiently descriptive because “anything that comes out of that lawyer’s mouth is legal advice” and that “if it’s communications to or from an attorney, it’s privileged.” Id. at 179, 181. The magistrate further held that attorney-client privilege also extends to documents listed on the “compliance log” BDO created as part of its deferred prosecution agreement with the DOJ, agreeing with BDO’s statement that, to the extent attorneys were involved, this information is privileged. Id. at 183.

The magistrate also granted BDO the protective relief it requested. EEOC was ordered to: 1) refrain from communicating with Bower or other BDO employees about conversations with BDO counsel; 2) disclose employee’s name, date of disclosure, and substance of conversation with BDO counsel; 3) produce notes of all conversations described, redacting EEOC work product; and 4) return to BDO documents containing privileged communications and destroy any notes or documents from their review. ROA 134-35.

2. EEOC’s Objections and District Court Decision

EEOC filed amended objections to the magistrate’s order, arguing that the magistrate erred when it failed to require BDO to produce documents listed on the privilege log or to conduct an in camera inspection. EEOC further argued that the magistrate erred by requiring EEOC to disclose and/or produce anything and everything related to the charging party or any other witness that in any way involved an attorney associated with BDO.

Many of the documents in BDO’s privilege log include Bower as a sender, direct recipient, or “cc’d.” ROA 140-164. EEOC appended to its objection a declaration by Bower attesting that these documents are not privileged. ROA 235-242. Bower stated that she was either directly or indirectly involved in the communications or documents listed and that, although attorneys may have been involved or “cc’d,” the attorneys were operating in their role as business decision-makers, not legal advisors. ROA 237 (“Although [Bower] exchanged numerous email communications with Grimmer and other attorneys about investigations during the relevant time period (after she was appointed as Deputy General Counsel), rarely were they for the purpose of seeking or receiving legal advice.”).

In opposing EEOC’s objections, BDO argued, among other things, that Bower’s declaration should not be considered because it was not presented to the magistrate and that Bower’s opinion about what constitutes legal advice should not be given any weight both because she is not an attorney and because she is wrong. On March 21, 2016, the district court summarily affirmed the magistrate’s order, stating that it “is neither clearly erroneous nor contrary to law.” ROA 442.

STANDARD OF REVIEW

The standard of review for a district court’s determination that attorney-client privilege protects particular communications is two-fold. To the extent the district court’s holding rests on application of controlling legal principles, this Court’s review is de novo. See King v. Univ. Healthcare Sys., L.C., 645 F.3d 713, 721 (5th Cir. 2011); In re Avantel, S.A., 343 F.3d 311, 318 (5th Cir. 2003). The clearly erroneous standard of review applies to the extent the decision below rests on factual determinations. See In re Auclair, 961 F.2d 65, 68 (5th Cir.1992).

SUMMARY OF ARGUMENT

EEOC is investigating whether BDO’s top corporate management subjected employees to discrimination and retaliation in violation of Title VII and the EPA. BDO refused to disclose 278 documents relevant to EEOC’s investigation on the grounds of attorney-client privilege. The district court erred when it summarily concluded that the withheld documents are privileged.

As an initial matter, the district court failed to require BDO to prove that each of the withheld documents, in their entirety, fell within the scope of the privilege. Instead, the court required EEOC to prove that privilege was improperly asserted as to the documents. This inversion of the burden of proof was error.

The district court further erred when it concluded, in direct contravention of established case law, that all communications between a corporation’s employees and its counsel are per se privileged. By categorically holding that “anything out of a lawyer’s mouth is legal advice” that must be kept secret, the court ignored the key factors in assessing whether the privilege applies. It is well-settled that the privilege applies only when the proponent proves that the communication was made in confidence with an attorney for the express purpose of securing legal rather than business or technical advice and that the communication was maintained in confidence. It is equally well-settled that a corporate client is not allowed to conceal a fact by disclosing it to the corporate attorney. Blanket assertions of attorney-client privilege, such as the one embraced by the district court, have been roundly rejected.

BDO’s submission to the district court was far too vague to enable a proper determination of whether the attorney-client privilege protects the at-issue communications. BDO, as the proponent of the privilege, must establish each element of the privilege.

BDO presented only a bare privilege log containing a cursory description of each document: date, author, recipient, number of pages, and “basis for attorney-client privilege.” While each document is alleged to be “seeking legal advice,” “sharing legal advice” or “providing legal advice,” the descriptions and comments in the log fail to provide enough information to support the privilege claim. Absent from BDO’s log is any indication that confidentiality was initiated and maintained as to each communication, the role of the communications’ participants (where the participants are even identified – a number of entries fail to pinpoint who participated in the listed communications) to determine if they are within the sphere of confidentiality as to this matter, or that the true purpose of the communication was legal and not business related.

Moreover, BDO’s general assertions of privilege are not supported by any affidavits or other actual evidence. To the contrary, the only evidence in the record shedding light on these communications is the Bower affidavit provided by EEOC. And the affidavit casts grave doubt on BDO’s assertions of privilege, stating that the communications in which Bower was involved were predominately business, not legal. Accordingly, the matter should be remanded to allow the district court to decide whether BDO can prove the privilege is available to any of the withheld communications, applying the proper burden of proof and using the proper legal standard.

The district court also improperly granted BDO’s motion for a protective order. The court’s order was grounded in the same, overly broad legal standard, wrongly sweeping under the umbrella of non-disclosure all communications involving an attorney. Moreover, the district court incorrectly extended the beyond the communications themselves to the factual content contained in the communications. Finally, even if some of the information shared with the Commission is privileged, as a former high level official whose duties included working with confidential information Bower may have the right to use the information to support her claim that BDO violated her rights. For these reasons, the protective order issued below should be reversed and remanded.

ARGUMENT

I. The District Court Erred When It Accepted BDO’s Claim of Privilege Based Solely On BDO’s Vaguely Worded Privilege Log and the Legally Erroneous Ruling That All Communications Between a Corporation’s Attorneys and Its Employees Are Per Se Privileged.

Title VII and the Equal Pay Act authorize the Commission to investigate charges alleging that an employer is engaged in discrimination in violation of the applicable statute. See 42 U.S.C. § 2000e-5(b); 29 U.S.C.

§ 206(d); see also General Telephone Co. of the Northwest v. EEOC, 446 U.S. 318, 331 (1980). Under its congressionally-conferred investigatory powers, the Commission “shall at all reasonable time have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by [Title VII] and is relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a). To ensure the Commission access to this information, the statute gives the Commission authority to issue a subpoena seeking such information and to pursue enforcement of the subpoena in the district courts. See 42 U.S.C. § 2000e-9 (providing the Commission with the same investigatory powers provided to the National Labor Relations Board in the National Labor Relations Act at 29 U.S.C. §161).

Title VII’s relevancy requirement is to be “generously construed” to “afford[] the Commission access to virtually any material that might cast light on the allegations against the employer.” EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984). Recognizing that, unlike a discovery procedure, an EEOC investigation is a proceeding distinct from any litigation that may flow from it, the court’s role in subpoena enforcement is sharply limited. See United States v. Morton Salt Co., 338 U.S. 632, 642-43 (1950) (an administrative agency “has a power of inquisition . . . which is not derived from the judicial function. . . . [The agency] does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.”)

BDO no longer disputes that the information sought as part of the Bower charge investigation is squarely within the bounds of Title VII’s broad definition of relevancy. Similarly, it does not contend that providing such information would impose on it an undue burden. Rather, BDO argues that the information sought is privileged. However, the only evidence BDO provided to meet its burden of proving that the withheld communications fall within the narrow confines of the attorney-client privilege was a vaguely-worded privilege log in which it often stated only that “legal advice” was sought or received, without plainly identifying all the individuals to whom the communication was disseminated, their specific role in the communication or providing clear reasons why the totality of each communication was entitled to the privilege. The district court misapplied controlling law when it summarily affirmed the magistrate’s order holding that BDO proved that all 278 documents, in their entirety, were protected by the privilege.

The district court offered no analysis supporting its affirmance. It did not respond to EEOC’s arguments that BDO failed to sufficiently describe the withheld communications and did not identify all the individuals to whom the communications were disseminated. Although EEOC pointed out that BDO did not provide substantiating affidavits or any other evidence to support its argument that it was entitled to withhold the communications, the court denied EEOC’s request that it conduct an in camera review. Because neither the EEOC nor the court had sufficient information to determine the propriety of the privilege alleged, the EEOC asks this Court to remand the matter for further review.

A. The District Court Erred By Failing to Assign the Burden of Proof to BDO, the Proponent of the Privilege.

Federal common law governs the issue of attorney-client privilege in the subpoena enforcement context where the basis for federal court jurisdiction is a federal question. See United States v. Zolin, 491 U.S. 554, 562 (1989), citing Fed. R. Evid. 501. Although the attorney-client privilege recognizes the interest in promoting “full and frank communications” between clients and attorneys, Upjohn Co. v. United States, 449 U.S. 393, 389 (1981), “[b]ecause the privilege ‘has the effect of withholding relevant information from the fact-finder, it applies only where necessary to achieve its purpose.’” United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997) (quoting Fisher v. United States, 425 U.S. 391, 403 (1976)). See also In re Sealed Case, 676 F.2d 793, 807 n.44 (D.C. Cir. 1982) (citing In re Grand Jury Investigation, 599 F.2d 1224, 1235 (3d Cir. 1979) (the privilege must be “strictly confined within the narrowest possible limits consistent with the logic of its principle.”). In the subpoena enforcement context, privileges must be granted cautiously because of the strong countervailing public interest in efficient investigations. See FTC v. TRW, 628 F.2d 207, 210 (D.C. Cir. 1980).

Communications are said to be protected under attorney-client privilege when the proponent of the privilege proves: “(1) that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding.” Robinson, 121 F.3d at 974. The proponent of the privilege must establish each of these essential elements through competent evidence, not “mere conclusory or ipse dixit assertions.” Von Bulow v. von Bulow, 811 F.2d 136, 146 (2d Cir. 1987) (internal citation omitted). This burden of proof must be satisfied as to each document, in whole or in part. See United States v. El Paso Co., 682 F.2d 530, 538 (5th Cir. 1982). The party asserting attorney-client privilege, here BDO, must “expressly make the claim” and “describe the nature of the documents . . . in a manner that without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed.R.Civ.P. 26(a)(5)(A). “[T]he proponent [of the attorney-client privilege] must provide the court with enough information to enable the court to determine privilege, and the proponent must show by affidavit that precise facts exist to support the claim of privilege.” Nutmeg Ins. Co. v. Atwell, Vogel & Sterling A Div. of Equifax Servs., Inc., 120 F.R.D. 504, 510 (W.D. La. 1988).

In this case, the court below failed to require BDO to prove that each of the 278 documents, in their entirety, properly fall within the scope of the privilege asserted. Although the magistrate did not explicitly address the burden of proof issue, it is apparent from the hearing transcript that the court inverted the burdens in its analysis. Rather than require BDO to prove that the privilege applies to each of the withheld documents, the magistrate required EEOC to prove the negative - - that attorney-client privilege does not apply. For example, the magistrate began the hearing by stating that EEOC “ha[s]n’t made a sufficient showing that [the privilege log reflects] an improperly claimed privilege when Counsel is . . . copied on a lot of these – on all these documents.” ROA 168. This approach was improper. It is the proponent who must prove – not the opponent disprove – the existence of the privilege. See, e.g., Robinson, 121 F.3d at 974 (“assertor of the privilege must prove” its existence); King, 645 F.3d at 720-21 (party invoking the privilege “has the burden of demonstrating its applicability”).

B. The District Court Erred When It Assessed the Application of the Privilege Using a Legal Standard That Treats “Anything that Comes Out of a Lawyer’s Mouth [As] Legal Advice.”

Even if the magistrate’s decision could be read as assigning to BDO the burden of proving the privilege, the magistrate (and the district court when it summarily affirmed her order) erred as a matter of law in determining that BDO’s unsworn privilege log, without more, was sufficient to establish the requisite factual predicate for the privilege. See Nutmeg Ins. Co., 120 F.R.D. at 510. The court’s conclusion that BDO’s privilege log was sufficient to meet its burden of proving privilege rests largely on its misunderstanding of the governing legal standard.

According to the magistrate, BDO’s log “seems adequate” because it shows that lawyers were involved in many of the communications and “anything that comes out of that lawyer’s mouth is legal advice.” ROA 178; see also id. at 180 (agreeing with statement that “anything that is said, anything that’s communicated from or to Counsel is privileged”). This sweepingly broad standard is inconsistent with federal law governing the attorney-client privilege.

It is well-established that attorney-client privilege attaches only when the proponent of the privilege proves, with specific and detailed evidence, that the communication was made for the purpose of obtaining legal advice from the lawyer and that the conveyor of the information intended for the contents to be maintained in confidence. See Caruso v. Grace, No. 11 CIV. 2353, 2012 WL 2497274, at *3 (S.D.N.Y. June 27, 2012) (“In order for the privilege to attach the information must have been given with the expectation of confidentiality and for the purpose of obtaining legal as opposed to business advice” (internal quotation omitted)); Robinson, 121 F.3d at 975 (“It goes without saying that documents do not become cloaked with the lawyer-client privilege merely by the fact of their being passed from client to lawyer.”). “The mere fact that an attorney was involved in a communication does not automatically render the communication subject to the attorney-client privilege.” Motely v. Marathon Oil Co., 71 F.3d 1547, 1551 (10th Cir. 1995). Accord, Matter of Walsh, 623 F.2d 489, 494 (7th Cir. 1980) (“The relationship itself does not create ‘(a) cloak of protection (which is) draped around all occurrences and conversations which have any bearing, direct or indirect, upon the relationship of the attorney with his client.’” (internal quotation omitted)).

The legal error of assigning privilege to any communication involving an attorney led the court to mistakenly conclude that BDO satisfied its burden of proof simply by asserting in its privilege log that attorneys involved in a communication gave “legal advice,” without providing “specific and precise reasons” why the communications should not be disclosed. Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 473 (N.D. Tex. 2004). “Although a privilege log and, in certain instances, an in camera review of documents may assist the Court in conducting its analysis, a party asserting a privilege or work-product protection still must provide ‘a detailed description of the materials in dispute and state specific and precise reasons for their claim of protection from disclosure.’” Celanese Corp. v. Clariant Corp., No. 3:14-CV-4165-M, 2015 WL 9269415, at *1 (N.D. Tex. Dec. 21, 2015) (internal citation omitted). See also S.E.C. v. Microtune, 258 F.R.D. 310, 316 (N.D. Tex. 2009) (party asserting privilege must provide detailed description of the documents hidden from disclosure; protecting documents “because they were made by or sent to outside counsel” is wholly inadequate). As one court explained,

If the court chooses to rely on adequate privilege logs, typically the logs will identify each document and the individuals who were parties to the communications, providing sufficient detail to permit a judgment as to whether the document is at least potentially protected from disclosure. Other required information, such as the relationship between the individuals listed in the log and the litigating parties, the maintenance of confidentiality and the reasons for any disclosures of the document to individuals not normally within the privileged relationship, is then typically supplied by affidavit or deposition testimony. Even under this approach, however, if the party invoking the privilege does not provide sufficient detail to demonstrate fulfillment of all the legal requirements for application of the privilege, his claim will be rejected.

Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993). See also Estate of Manship v. United States, 232 F.R.D. 552, 561 (M.D. La. 2005), aff’d (M.D. La. Jan. 13, 2006) (claims of privilege “can only be sustained if they are both properly asserted and the facts supporting the privileges are established by the evidence, not merely declared by lawyer argument. In other words, the mere assertion of a lawyer that responsive materials or information are attorney-client privileged or protected by the work product doctrine is not evidence establishing that the information is privileged.”)

At no time – not in its petition to EEOC to revoke or amend the subpoena, its subsequent objections to the subpoena, its briefing before the magistrate or its briefing before the district court – did BDO describe the nature of the documents, communications, or things withheld in a manner that would enable either the EEOC or a reviewing tribunal to assess the applicability of the privilege. Although BDO’s log generally identified documents, the vagueness in the descriptions contravenes the thrust of the Fifth Circuit’s rule that “the privilege must be specifically asserted” for each communication because overly general assertions “disable the court and the adversary party from testing the merits of the privilege.” El Paso Co., 682 F.2d at 539-40. Failing to explain “how any particular document falls within the ambit of the attorney-client privilege” is fatal. Microtune, 258 F.R.D. at 316. Indeed, BDO’s privilege log is so vague that it serves as merely a blanket claim of attorney-client privilege. That is insufficient. See Williams v. Sprint/United Management Co., No. 03-2200-JWL-DJW, 2006 WL 266599, *4 (D. Kan. Feb. 1, 2006) (rejecting blanket claim to attorney-client privilege which fails to establish that documents are confidential substantive communications that involve requesting or providing legal advice).

Numerous entries on BDO’s log are incomplete, thereby denying EEOC and the reviewing tribunal the ability to conduct any meaningful analysis. The log provides insufficient detail to permit a judgment as to whether the entire document – or instead only portions thereof – is properly protected from disclosure. For example, many entries involve emails, some of which are as many as four pages long. It cannot be determined from the face of the log whether BDO individually logged every email within a particular email “string” or “thread.” As a result, BDO’s log does not reveal whether any particular entry identified with a date, sender, and recipient is an individual email or the last message in a string of emails. See Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 254 F.R.D. 238, 240–241 (E.D. Pa. 2008) (finding that each individual email within a string is a separate document that, if withheld, should be separately logged); In re Universal Serv. Fund Tel. Billing Practices Litig., 232 F.R.D. 669, 671 (D. Kan. 2005) (noting that although listing separately each e-mail in a string “is a laborious, time-intensive task for counsel . . . adherence to such a procedure is essential”); United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1075 (N.D. Cal. 2002) (after in camera review, court determined which individual emails in string were entitled to privilege). But see Muro v. Target Corp., 250 F.R.D. 350, 362 (N.D. Ill. 2007) (privilege log deemed not inadequate for failing to separately list emails in an email string) (aff’d on other grounds, 580 F.3d 485 (7th Cir. 2007)).

Furthermore, most of the entries generally state only that “legal advice” was sought. The descriptions are vague, repetitious, and lack sufficient detail. See, e.g.,“Email to Deputy General Counsel seeking legal advice re: Bob Pearlman investigation re his behavior,” ROA 140-141, “Email to Deputy General Counsel seeking legal advice re: Lisa Maurer discrimination claim.” ROA 155-156. More information is required for BDO to meet its burden. To ensure some level of oversight can take place, “a detailed description of the materials in dispute and . . . specific and precise reasons for the claim of protection from disclosure” must be provided. Navigant Consulting, 220 F.R.D. at 473-74. This requirement provides evidence “sufficient to enable the court to reach [a] conclusion” regarding the claimed privilege. Microtune, 258 F.R.D. at 316.

Although there is “no presumption that communications with outside counsel are privileged,” Koumoulis v. Indep. Fin. Mktg. Grp., Inc., 295 F.R.D. 28, 38 (E.D.N.Y. 2013), aff’d, 29 F. Supp. 3d 142 (E.D.N.Y. 2014), the need for close scrutiny of a privilege claim is heightened where in-house counsel is involved. Internal communications involving in-house counsel routinely span business, technical, and legal capacities. Because the role of in-house counsel is often multi-faceted (e.g. business advisor, corporate director, labor negotiator), the party claiming privilege must provide enough detail to enable a court to ascertain whether the contents were intended to convey legal advice or, rather, provide business advice. See, e.g., In re Sealed Case, 727 F.2d at 99 (communication from in-house counsel can be sheltered “only upon a clear showing that [in-house counsel] gave it in a professional legal capacity”); AAMCO Transmissions Inc. v. Marino, No. CIV. A. 88-5522, 1991 WL 193502, *3 (E.D. Pa. 1991) (when corporate employees communicate with in-house counsel, the corporation is required to “clearly demonstrate that the communication in question was made for the express purpose of securing legal not business advice.”); Kramer v. Raymond Corp., No. CIV. 90-5026, 1992 WL 122856, *1 (E.D. Pa. 1992) (“Business communications are not protected merely because they are directed to an attorney, and communications at meetings attended or directed by attorneys are not automatically privileged as a result of the attorney’s presence.”).

As a district court in this Circuit explained,

It is often difficult to apply the attorney-client privilege in the corporate context to communications between in-house corporate counsel and those who personify the corporate entity because modern corporate counsel have become involved in all facets of the enterprises for which they work. As a consequence, in-house legal counsel participates in and renders decisions about business, technical, scientific, public relations, and advertising issues, as well as purely legal issues.

In re Vioxx Products Liab. Litig., 501 F. Supp. 2d 789, 797 (E.D. La. 2007) (internal quotation omitted). For a communication to be protected, not only must the lawyer be functioning as an advisor but the advice given also must be predominately legal, as opposed to administrative or business in nature. Absent such a rule, companies could channel non-legal communications through an attorney so as wrongly to claim the shield of privilege.

BDO’s log simply states that an attorney was involved and that legal advice was given or received. Substantially more information is needed to determine whether the advice given was of a nature subject to the privilege or instead could have been given by persons without a legal degree. See, e.g., Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 603 (8th Cir. 1977) (communications with law firm employed to investigate facts not entitled to privilege because work performed could be performed “just as readily by non-lawyers”); In re Grand Jury Subpoena, 599 F.2d 504, 511 (2d Cir. 1979) (“Participation of the general counsel does not automatically cloak the investigation in legal garb.”); El Paso Co., 682 F.2d at 543 (the proponent of the privilege must show that the communications took place because of the “press of litigation” and not as a “business imperative[]”).

Most of the emails involve Bower as a participant. ROA 140-164. Bower’s role as BDO’s HR chief necessitates a particularly close look to determine accurately whether a communication is predominately business or legal. See generally Upjohn Co., 449 U.S. at 396. By its very nature, HR advice intersects both business and legal spheres. Notwithstanding this, however, “human resources work, like other business activities with a regulatory flavor . . . is part of the day-to-day operation of a business; it is not a privileged legal activity.” Koumoulis, 295 F.R.D. at 45. Consequently, courts must closely examine communications between HR personnel and outside counsel participating in an internal investigation to determine the predominate purpose. Id. Accord, Stafford Trading, Inc. v. Lovely, No. 05 C 4868, 2007 WL 1238915, at *4 (N.D. Ill. Apr. 26, 2007) (court closely examined each document after reviewing supporting affidavits, before concluding many communications between HR and lawyers were business-related and not privileged).

If counsel is simply an “adjunct member of Defendant’s human resources team” rather than a “consultant primarily on legal issues,” the advice is primarily business and not privileged. Koumoulis, 295 F.R.D. at 45. Counsel’s “status as an attorney does not transform what would otherwise be human resources and business communications into legal communications.” Id. Thus, to determine whether communications in which Bower participated properly fit within the narrow confines of attorney-client privilege, each communication must receive a high level of scrutiny. BDO provided the district court with woefully inadequate proof supporting its claim of privilege in this context.

The lack of support for BDO’s assertion of privilege is made all the more apparent when considering Bower’s declaration attesting to the contents of the emails about which she had direct knowledge. Bower’s declaration is the only evidence the district court had before it elucidating the contents of the privilege log. Although the declaration was not presented to the magistrate, the district court is vested with the authority to consider this evidence. See Fed.R.Civ.P. 72(b)(3) (when reviewing a dispositive motion, the district court may “receive further evidence”); Freeman v. County of Bexar, 142 F.3d 848, 853 (5th Cir. 1998) (district court has “generous” discretion to consider new evidence when reviewing magistrate’s ruling).

Given the statements in the declaration, the court should not have summarily signed off on the magistrate’s decision finding all communications with BDO’s corporate counsel privileged and refusing EEOC’s request for in camera review. See In re John Doe, 675 F.2d 482, 490 (2d Cir. 1982) (in camera review proper “when justified”); In re Sealed Case, 676 F.2d at 815 (in camera review should be granted “in appropriate cases”).

Bower stated that although attorneys were involved or copied on many of the emails, they were involved in their role as business managers rather than legal advisors. Bower declared that her e-mail exchanges with in-house and outside counsel were “for the purpose of seeking or imparting business directives regarding investigations of officers ostensibly conducted by Human

Resources . . . .” ROA 721. She stated that “although [she] exchanged numerous email communications with Grimmer and other attorneys about investigations during the relevant time period (after she was appointed as Deputy General Counsel), rarely were they for the purpose of seeking or receiving legal advice.” Id. This testimony, at minimum, raises doubts as to the propriety of shielding the emails from disclosure. See Lugosch v. Congel, No. CIV. 1:00-CV-0784, 2006 WL 931687, at *14 (N.D.N.Y. Mar. 7, 2006) (“Because of the duality of the advice [provided by in-house counsel], a court must assume the very complicated task of inquiring into the subject matter of the communications in order to determine its true character. To this extent, a court may have to parse not only the words but their intent in order to glean the authentic purpose of the communication.”) (report and recommendation adopted in relevant part, 2006 WL 6651777 (N.D.N.Y. May 5, 2006)). See also In re the County of Erie, 473 F.3d 413, 420 (2d Cir. 2007) (for privilege to apply “predominate purpose of communication” must be legal); 1 Paul R. Rice, Attorney Client Privilege in the United States § 7:5 (2d ed.1999) (“[T]here is general agreement that the protection of the privilege applies only if the primary or predominate purpose of the attorney-client consultation is to seek legal advice or assistance.”) (emphasis in original).

Many other emails listed in the log are between non-attorneys. BDO does not identify any specific attorney who was in any way linked to the communication or whose legal advice was being conveyed by the persons who were involved in the communication. Where such information is absent, the standard for granting the privilege is not met. BDO failed to “provide sufficient detail to demonstrate fulfillment of the legal requirements for application of the privilege.” United States v. Constr. Prod. Research, Inc., 73 F.3d 464, 473 (2d Cir.1996) (internal quotation omitted).

Moreover, even if some of the documents identified on the privilege log contain legal advice, the district court erred when it failed to determine whether the document is privileged in its totality. “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., 449 U.S. at 395-96. Thus, even if a document contains some attorney-client privileged material that does not necessarily mean the whole document properly may be withheld. See, e.g., County of Erie, 473 F.3d at 421 (redaction appropriate in hybrid documents containing both legal and non-legal advice); Illinois Central R.R. Co. v. Harried, No. 5:06cv160, 2010 WL 583938, at *2 (S.D. Miss. Feb. 16, 2010) (finding attorney-client privilege “applies only in part to documents at issue” and requiring production of redacted documents.). To hold otherwise would allow an entity to hide any facts that are incorporated into a communication with an attorney.

Finally, BDO failed to establish that the communications it seeks to withhold were made in confidence and that the confidentiality was not breached in any manner. See United States v. Pipkins, 528 F.2d 559, 563 (5th Cir. 1976) (“It is vital to a claim of privilege that the communication have been made and maintained in confidence.”). Communications that are made with the expectation of confidence lose privilege when “carbon copied to a third party.” Morgan v. N.Y. State Dep’t of Env’t Conservation, 9 A.D.3d 586, 588, 779 N.Y.S.2d 643 (2004). Further, “[w]hen a matter is communicated to the lawyer with the intention or understanding it is to be repeated to another, the content of the statement is not within the privilege.” United States v. Bump, 605 F.2d 548, 551 (10th Cir. 1979). In the corporate setting, to determine which individuals are within the confidential sphere, the court must look at the individuals’ specific duties to determine if the proponent has demonstrated that they are within the scope of the matters communicated and whether the evidence proves that each of those individuals is “sufficiently aware” that the communication is for the purpose of seeking or obtaining legal advice. Upjohn Co., 449 U.S. at 394.

As noted above, many of the emails listed on the log are multiple pages in length. It is not possible to determine whether a listed email was sent to one individual or whether it actually consists of multiple messages in a string, sent to several different people. Further, we do not know whether other individuals to whom it may have been sent are within the scope of privileged communications. There also is no indication whether the emails made clear that their contents were confidential and privileged and should not be further disseminated. On the face of the log it cannot be determined which BDO officials were properly within the sphere of confidentiality or whether dissemination to some employees broke the confidentiality, even if confidentiality initially existed.

Without more information, neither EEOC nor a reviewing body can make an informed decision about what is privileged and what is not. The court erred when it uncritically accepted BDO’s vague and unsworn characterization of the documents. In so doing, it essentially gave BDO, the party accused of wrongdoing, unfettered power as the gatekeeper of evidence that can potentially prove its guilt or innocence. Bower’s declaration placed into question the nature of the advice sought – a fact essential to establishing attorney-client privilege – and provided strong indication that many of the documents withheld by BDO contained, at the least, a mix of privileged and non-privileged information. In light of this, BDO cannot establish the privilege without additional evidence.

There are several methods and procedures available to a district court to protect truly confidential communications while at the same time not frustrating the Commission’s legitimate inquiries. As EEOC suggested below, in conjunction with a more detailed privilege log, the court can make an in camera review of any disputed documents. See, e.g., Zolin, 491 U.S. at 554. See generally Kerr v. U. S. Dist. Court for Northern Dist. of California, 426 U.S. 394, 405–06 (1976) (“[I]t would seem that an in camera review of the documents is a relatively costless and eminently worthwhile method to insure that the balance between petitioners’ claims of irrelevance and privilege and plaintiffs’ asserted need for the documents is correctly struck. Indeed, this Court has long held the view that in camera review is a highly appropriate and useful means of dealing with claims of governmental privilege.”). Or BDO officials can submit sworn affidavits attesting to the content of each document. See, e.g., Constr. Pods. Research, Inc., 73 F.3d at 473-74 (“cursory” descriptions in privilege log insufficient, particularly because of the “glaring absence of any supporting affidavits or other documentation”).

BDO must do more to prove that the documents it contends are privileged are entitled to be withheld in their entirety, “even if describing the protected materials in a log may be difficult to do without revealing [their] confidential nature.” Estate of Manship, 232 F.R.D. at 561. Remand is necessary for the district court to determine whether BDO can establish privilege under the proper legal standard. See, e.g., Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (court reversed and remanded case for reconsideration where wrong legal standard was applied).

II. The District Court’s Grant of a Protective Order to BDO Must Be Reversed Because It Was Premised on the Erroneous Rule That Anything a Corporation’s Attorney Says to a Corporate Employee Is Per Se Privileged.

The district court also erred when it summarily affirmed the magistrate’s decision to grant BDO’s motion for a protective order. A district court’s determination of whether to issue a protective order imposing restrictions on document production pursuant to an administrative subpoena is reviewed for abuse of discretion. See United States v. Zolin, 809 F.2d 1411, 1416-17 (9th Cir. 1988), aff’d by equally divided Court, 491 U.S. 554 (1989). However, whether the district court used the correct legal standard in considering whether to issue the protective order is reviewed de novo. See In re Avantel, S.A., 343 F.3d at 318 (court “review[s] the application of the controlling law de novo” in attorney-client privilege case).

In defending the order in the district court, BDO argued that the magistrate’s broad definition of privilege, which includes any communication in which an attorney is present, necessarily extends to all of BDO’s internal investigations into staff, facts related to discrimination allegations, and remedial measures as a result of discrimination allegations. This is not the law. As explained in detail supra, communications involving an attorney should not automatically be considered privileged absent a more focused and detailed examination of the contents of the particular communication. Communications between attorneys and corporate employees containing business-related or technical communications or such communications between non-attorney employees created at the direction of counsel are not shielded from disclosure simply because attorneys are directly or indirectly involved in the communications. Robinson, 121 F.3d at 975; Motely, 71 F.3d at 551.

Similarly, even if the magistrate’s conclusion that EEOC “questioned witnesses” and obtained information about their discussions with BDO attorneys were accurate, that would not automatically mean these communications were privileged, as the court improperly concluded. If the discussions with BDO attorneys were not for the “primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding,” information about those discussions is not privileged. Robinson, 121 F.3d at 974. Accordingly, the case should be remanded to the district court to analyze BDO’s request for a protective order under the proper legal standard for determining privilege.

Moreover, even if it is determined under the proper legal analysis that information shared with the Commission is privileged, that does not end the inquiry. As a former high level official whose duties included working with confidential information, Bower has the right to use privileged information to support her claim that BDO violated her rights. See Doe v. A Corp., 709 F.2d 1043, 1048-49 (5th Cir. 1983) (in-house attorney can sue former client/ employer to vindicate his personal ERISA rights denied him allegedly due to corporate wrongdoing); Willy v. Admin. Review Bd., 423 F.3d 483, 499 (5th Cir. 2005) (applying Doe, in-house counsel can use both privileged and non-privileged communications to vindicate his rights). See also Jones v. Flagship International, 793 F.2d 714, 725-26 (5th Cir. 1986) (EEO manager can sue company to vindicate her Title VII rights).

CONCLUSION

For the foregoing reasons, the ruling below should be reversed, and this case should be remanded for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

MARGO PAVE

Assistant General Counsel

/s/ Susan L. Starr

SUSAN L. STARR

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, N.E., 5th Floor

Washington, D.C. 20507

susan.starr@eeoc.gov

[1] Among the documents BDO claimed were privileged were documents listed on its “compliance log.” ROA598. BDO created this log as part of a deferred prosecution agreement with the Department of Justice (“DOJ”) related to DOJ’s fraud investigation into BDO’s business practices. According to BDO, the purpose of the log was to facilitate DOJ’s ability to track alleged ethical violations. Id. Bower averred that she participated in the creation of the log and that the log contained employee complaints, including complaints of employment discrimination. ROA720-725.