TABLE OF AUTHORITIES................................................................... ii

INTRODUCTION................................................................................... 1

ARGUMENT.......................................................................................... 3

BDO Presents No Issue Warranting En Banc Review Because the Panel Decision is Consistent with Precedent of the Supreme Court, This Court, and Other Courts of Appeals, and BDO Identifies No Other Question of Exceptional Importance. 3

A.... The panel correctly applied the “abuse of discretion” standard in reviewing the district court’s decision in this case.......................................... 4

B.... The panel decision neither conflicts with nor “amends” Federal Rule of Civil Procedure 26............................................................................. 8

C.... The panel decision implicates no other question of “exceptional importance.”............................................................................................... 13

CONCLUSION..................................................................................... 16

CERTIFICATE OF SERVICE

Table of Authorities

Page(s)

Cases

Bocanegra v. Vicmar Services, Inc.,
320 F.3d 581 (5th Cir. 2003)....................................................................... 5

Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384 (1990)..................................................................................... 7

Federal Trade Commission v. GlaxoSmithKline,
294 F.3d 141 (D.C. Cir. 2002)................................................................... 15

Gonzalez v. Southern Pacific Transportation Co.,
773 F.2d 637 (5th Cir. 1985)....................................................................... 2

Highmark Inc. v. Allcare Health Management System, Inc.,
134 S. Ct. 1744 (2014)................................................................................. 4

King v. University Healthcare System, L.C.,
645 F.3d 713 (5th Cir. 2011)............................................................... 12, 13

McLane Co. v. Equal Employment Opportunity Commission,
137 S. Ct. 1159 (2017)......................................................................... 3, 4, 6

Resolution Trust Corp. v. Bright,
6 F.3d 336 (5th Cir. 1993)........................................................................... 5

Speaks v. Kruse,
445 F.3d 396 (5th Cir. 2006)....................................................................... 5

Theriot v. Parish of Jefferson,
185 F.3d 477 (5th Cir. 1999)....................................................................... 9

United States v. El Paso Co.,
682 F.2d 530 (5th Cir. 1982)............................................................... 12, 15

United States v. Robinson,
121 F.3d 971 (5th Cir. 1997)................................................................. 6, 12

United States v. Zadeh,
820 F.3d 746 (5th Cir. 2016)....................................................................... 3

United States v. Zolin,
491 U.S. 554 (1989)................................................................................... 16

Vioxx Products Liability Litigation Steering Committee v. Merck & Co., Inc., Nos. 06-30378, 06-30379, 2006 WL 1726675 (5th Cir. May 26, 2006).......................................................................................................... 17

von Bulow by Auersperg v. von Bulow,
811 F.2d 136 (2d Cir. 1987)...................................................................... 12

Other Authorities

Fed. R. App. P. 10(a)........................................................................................ 9

Fed. R. App. P. 32(a)(5)................................................................................... 1

Fed. R. App. P. 32(a)(6)................................................................................... 1

Fed. R. App. P. 35(a)........................................................................................ 2

Fed. R. Civ. P. 26.................................................................................. 1, 10, 11

5thCir. IOP to 5th Cir. R. 35............................................................................ 3

5th Cir. IOP 35-4 to 5th Cir. R. 35................................................................... 3

INTRODUCTION

In this subpoena enforcement action, the EEOC sought 278 email communications from BDO USA (“BDO”) in connection with its investigation of a charge of discrimination and retaliation under Title VII and the Equal Pay Act. BDO withheld all 278 communications in their entirety from production on the basis of attorney-client privilege and eventually created a privilege log purportedly identifying the basis for withholding each communication. Virtually all of the log’s entries, however, were missing critical information—some were incomplete, failing to indicate the sender, recipient, date, or substantive descriptions of the communications’ contents, and all of them omitted any information as to whether the communications were kept or maintained in confidence.

On a motion to compel, the magistrate judge held that BDO’s privilege log was sufficient to establish attorney-client privilege as to all of the communications at issue. Without conducting an in camera review of the emails and in the absence of any other evidence, the magistrate judge ruled that the log was sufficient for BDO to meet its burden of proof 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.” ROA179, 181. The district court summarily affirmed the magistrate’s order, stating that it was neither “clearly erroneous nor contrary to law.” ROA442.

A unanimous panel of this Court held that BDO’s privilege log was insufficient “to establish a prima facie showing of attorney-client privilege . . . . Given the factual background of this case, the HR context in which it takes place, and the nature of [the charging party’s] allegations, the privilege log in its current form is not sufficient to serve its purpose.” Op. at 7. The panel observed, “[i]t is well-established that the privilege is the exception to [Federal Rule of Civil Procedure] 26’s broad disclosure requirements for relevant information and that it must therefore be applied narrowly and with particularity.” Id. at 13 (internal citations omitted). Accordingly, the panel ruled, “[b]ecause the privilege log lacks sufficient detail to ascertain whether the exception applies in this case, the magistrate judge erred when she placed the burden on the EEOC to show that BDO’s withheld communications were not privileged.” Id. at 14. It vacated the district court’s judgment and remanded “for a determination applying the correct legal standards.” Id.

BDO subsequently filed a Petition for Rehearing En Banc, and this Court directed the Commission to file a response. This brief is filed pursuant to that order.

ARGUMENT

Federal Rule of Appellate Procedure 35(a) provides that “[a]n en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.” Accordingly, this Court limits en banc consideration to cases involving “a precedent-setting error of exceptional public importance or an opinion which directly conflicts with prior Supreme Court [or] Fifth Circuit precedent.” Gonzalez v. S. Pac. Transp. Co., 773 F.2d 637, 641 (5th Cir. 1985) (quoting 5th Cir. Internal Operating Procedures (“IOP”) accompanying 5th Cir. R. 35); see also IOP at 35-4 (calling petitions for rehearing en banc the “most abused prerogative of appellate advocates in the Fifth Circuit”).

BDO’s petition for rehearing en banc does not come close to meeting the standard for en banc review established by this Court and by the Federal Rules of Appellate Procedure. The panel’s decision in this case is consistent with both recent and longstanding Supreme Court precedent on appellate review of subpoena enforcement actions and attorney-client privilege, and it does not conflict with the law of this or any other circuit. Although BDO characterizes its contentions otherwise, its arguments amount to recasting long-settled legal principles of standards of review as en-banc-worthy legal challenges. Moreover, far from being “a precedent-setting error of exceptional public importance,” the panel’s decision here is simply a routine threshold determination that a party “did not prove its prima facie case of attorney-client privilege” as to many of the entries on its proffered privilege log, which it remanded to the district court for further proceedings “[left] to the district court’s discretion.” Op. at 13-14. This Court should deny BDO’s petition in its entirety.

A. The panel correctly applied the “abuse of discretion” standard in reviewing the district court’s decision in this case.

In accordance with this Court’s long-held view, the Supreme Court in McLane held that reviewing courts should apply an abuse of discretion standard in EEOC subpoena enforcement proceedings. McLane Co. v. E.E.O.C., 137 S. Ct. 1159, 1170 (2017). See United States v. Zadeh, 820 F.3d 746, 750 (5th Cir. 2016) (“[a] subpoena enforcement order is reviewed for abuse of discretion.”) (quoting United States v. Chevron U.S.A., Inc., 176 F.3d 644, 647 (5th Cir. 1999)). This point has never been in dispute here.

As the Supreme Court has explained in McLane and prior cases, an appellate court’s review for “abuse of discretion” encompasses different standards depending on the character of the underlying issue. Thus, the McLane Court explained, “‘[A]pplying a unitary abuse-of-discretion standard’ does not shelter a district court that makes an error of law, because ‘[a] district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law.’” 137 S. Ct. at 1168 n.3 (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 403, 405 (1990)); see also Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 1748 n.2 (2014) (“The abuse-of-discretion standard does not preclude an appellate court’s correction of a district court’s legal or factual error: ‘A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.’”) (quoting Cooter & Gell, 496 U.S. at 405).

This Court has likewise long held that a lower court abuses its discretion if it applies the wrong legal standard or commits a clear error as to the underlying facts. See Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003) (“A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.”); Resolution Trust Corp. v. Bright, 6 F.3d 336, 340–41 (5th Cir. 1993) (same)). Where the district court’s exercise of its discretion involves a mixed question of fact and law, this Court applies a de novo standard of review. See, e.g., Speaks v. Kruse, 445 F.3d 396, 399 & n.8 (5th Cir. 2006) (citing Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471, 479 (5th Cir. 2002)).

This abuse of discretion standard is precisely the standard of review articulated and applied by the panel in this case:

The clearly erroneous standard of review applies to the district court’s factual findings.” King v. Univ. Healthcare Sys., L.C., 645 F.3d 713, 721 (5th Cir. 2011) (quoting United States v. Neal, 27 F.3d 1035, 1048 (5th Cir. 1994)). We review de novo the district court’s application of the controlling legal standards. See id.; In re Avental, S.A., 343 F.3d 311, 318 (5th Cir. 2003).

Op. at 5. It is also, incidentally, the same standard of review routinely applicable to attorney-client privilege questions. See, e.g., United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997) (in reviewing district court determination of attorney-client privilege, stating that, “[a]s usual, factual findings are reviewed for clear error; conclusions of law, de novo”) (citing Neal, 27 F.3d at 1048).

This is why, as the panel correctly noted, op. at 6 n.1, McLane’s holding “has no bearing on the ultimate disposition of this case.” Because here BDO claimed that all of the subpoenaed communications were privileged, the decision whether or not to enforce the EEOC’s subpoena turned entirely on the subsidiary question of attorney-client privilege—an issue already subject to abuse-of-discretion review. In other words, simply by applying the proper standard for review of the district court’s decision on the sufficiency of the privilege log—i.e., de novo review of purely legal issues, and clear error review of factual findings—the panel necessarily reviewed that decision for abuse of discretion, as McLane requires.

Nonetheless, BDO insists that en banc review is necessary because, rather than reviewing the district court’s decision for abuse of discretion, the panel reviewed it “under a combination of clearly erroneous (for factual findings) and de novo (for application of law).” Pet. at 4. What BDO fails to understand is that the standard it describes is abuse of discretion review, as explained above. BDO’s argument that the abuse of discretion standard is “more rigorous” than the clear error standard (pet. at iii, 5) is similarly misplaced. See Cooter & Gell, 496 U.S. at 401 (“When an appellate court reviews a district court’s factual findings, the abuse-of-discretion and clearly erroneous standards are indistinguishable: A court of appeals would be justified in concluding that a district court had abused its discretion in making a factual finding only if the finding were clearly erroneous.”) (emphasis added). The panel was entirely correct in reviewing the district court’s legal determinations de novo and its factual determinations for clear error, regardless of whether BDO might have wished for a different outcome. Pet. at 5.[1]

In short, by BDO’s own admission, the panel reviewed the district court’s decision here for abuse of discretion. There is no legal error in the panel’s application of that standard, much less any conflict with a decision of the Supreme Court, this Court, or any other circuit court of appeals. BDO’s argument that en banc review is warranted based on the panel’s purported failure to apply the abuse of discretion standard is, accordingly, devoid of merit.

B. The panel decision neither conflicts with nor “amends” F ederal Rule of Civil Procedure 26.

Tellingly, BDO does not attempt to argue that the panel misstated the legal standards for proving privilege. Rather, BDO recycles the argument it advanced to the panel that its privilege log should have been deemed legally sufficient. BDO’s disagreement with the panel’s conclusion about the adequacy of its privilege log does not rise to the level of en banc review.

In an apparent attempt to manufacture an en banc-worthy legal issue where none exists, BDO argues that the panel decision was erroneous because it “creates new privilege log standards” and, in so doing, “amends” Federal Rule of Civil Procedure 26. Pet. at iii, 1, 9. BDO’s argument is meritless.

BDO is incorrect when it characterizes the panel as “amending” Rule 26 by issuing a broad ruling requiring its privilege log—or any privilege log—to provide “sufficient detail for the court to conclusively determine” privilege. Pet. at 10. Rather, the panel applied settled legal principles to determine that BDO’s evidence in this case was insufficient to “establish a prima facie showing of attorney-client privilege.” Op. at 7 (emphasis added).

As the panel noted, this Court has long recognized that the burden of establishing that each communication is entitled to privilege lies with the proponent. Op. at 6 (citing cases). It is well-settled that, to meet its burden, BDO must prove: “(1) that [it] 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. And, as the proponent of the privilege, BDO must establish each of these essential elements through competent evidence, not “mere conclusory or ipse dixit assertions.” von Bulow by Auersberg v. von Bulow, 811 F.2d 136, 146 (2d Cir. 1987) (internal citation omitted). This Court has made clear that the 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).

In its petition, BDO attempts to contravene this established law by arguing that once the proponent of a privilege submits a log—any log, regardless of its sufficiency—the “party challenging a privilege claim must do so on a document by document basis from the log.” Pet. at 10. It bases this argument exclusively on its characterization of King v. University Healthcare System, L.C., 645 F.3d 713, 721 (5th Cir. 2011). But King did not, as BDO represents, shift the burden of proof away from the proponent of privilege. (Indeed, if it had, the panel decision would be in direct conflict with King, an argument BDO notably does not make.) To the contrary, King explicitly states that “[t]he party invoking the attorney-client privilege has ‘[t]he burden of demonstrating its applicability,’” and, if it meets its burden of proof and the party opposing the privilege remains dissatisfied, the opposing party retains the right to object. 645 F.3d at 721.

Here, the panel made no sweeping ruling about privilege logs being required to “establish” privilege conclusively. See Op. at 7 (“Given the factual background of this case, the HR context in which it takes place, and the nature of Bower’s allegations, the privilege log in its current form is not sufficient to serve its purpose.”). Rather, it held the magistrate judge erred in three respects when she accepted BDO’s log as conclusively determining its entitlement to attorney-client privilege. First, recognizing that “the adequacy of a privilege log is determined on a case-by-case basis,” op. at 8 n.4, the panel ruled that many of BDO’s log entries were simply too vague to assess because they were lacking basic, critical information. Op. at 8-9. The fact that BDO may have found other examples of vague privilege logs that were deemed acceptable for litigation purposes in different contexts, pet. at 7-8, has no bearing on whether its own log produced in connection with this subpoena enforcement matter is adequate to the task.

Second, the panel highlighted the log’s failure to distinguish between attorney-client communications for purposes of business advice and legal advice. As noted throughout the panel decision, there were specific reasons to be concerned about this issue in this case: Bower, the charging party, was the company’s Chief Human Resources Officer, and her job duties routinely required her to communicate with both in-house and outside counsel as she conducted investigations. Op. at 2. In addition, Bower maintained not only that there were business communications among the purportedly privileged emails, but that BDO actually “required her to forward to or courtesy copy in-house counsel on virtually all communications pertaining to employee investigations and to include in HR-related emails a false designation that the communication was prepared ‘at the request of legal counsel.’” Op. at 4. Given the vagueness of the log entries and the impropriety of the magistrate judge’s legal rulings that “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,” the panel’s concern here was well founded.

Third, with respect to confidentiality, the panel deemed BDO’s log to be deficient because it was “too vague to enable a determination of which BDO officials were properly within the sphere of confidentiality or whether dissemination to some employees broke the confidentiality even if confidentiality initially existed.” Op. at 13 (internal quotation marks omitted). Tellingly, BDO does not question that this Court’s law requires it to prove confidentiality for each communication it seeks to withhold or that “disclosure of any significant portion of a confidential communication waives the privilege to it as a whole.” El Paso, 682 F.2d at 538 (internal quotation omitted).

Instead, BDO complains that complying with the law, and the confidentiality requirement in particular, imposes on it an “extraordinary burden,” of “Herculean” proportions. Pet. at 13 (citing F.T.C. v. GlaxoSmithKline, 294 F.3d 141, 147 (D.C. Cir. 2002)). In GlaxoSmithKline, however, the defendant produced a detailed privilege log, along with a supporting affidavit, to establish confidentiality. This evidence clearly identified and “specifically named employees and contractors” to whom each confidential document was given and, as to each person, their role vis-à-vis the relevant legal matters at issue. What the D.C. Circuit characterized as “Herculean” was a requirement to do more. Id. By contrast, in this case BDO has done far less, presenting no evidence whatsoever regarding confidentiality. As the panel held, in the absence of such evidence “it is clear that BDO’s log does not meet the controlling legal standard of enabling a determination of what is privileged and what is not.” Op. at 13.

C. The panel decision implicates no other question of “exceptional importance.”

The panel decision does not establish a new procedure or a new standard for evaluating privilege logs. It simply makes clear that BDO’s privilege log, based on the existing legal standard and the facts of this case, is deficient. With no viable argument of legal or factual error, BDO then advances the proverbial “parade of horribles,” arguing that the panel decision will create an “enormous burden” for proponents of attorney-client privilege, pet. at 13, and a “staggering workload for trial courts,” id. at 15. Its arguments are baseless.

Leaving aside the putative burden on those seeking the protection of attorney-client privilege, the panel decision creates no obligation for the district court here—much less anywhere else—to review vast numbers of communications in camera. As to the need for in camera review generally, the Supreme Court and this Court have long approved the “practice of requiring parties who seek to avoid disclosure of documents to make the documents available for in camera inspection.” United States v. Zolin, 491 U.S. 554, 569 (1989) (citing Kerr v. United States Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 404-05 (1976)); Application of Eisenberg, 654 F.2d 1107, 1112 n.7 (5th Cir. 1981) (“It is settled that in camera proceedings are an appropriate means to resolve disputed issues of privilege.”) (citing Kerr).

As to the logistics of this case, the panel “[left] to the district court’s discretion how to proceed on remand,” and while it noted that “in camera review will likely be necessary given the facts and circumstances of this case,” it did not specify the scope of that review or require the district court to review all 278 communications. Op. at 14. We note, moreover, that the scope of the review in this case is far from overwhelming compared to that in other cases this Court has managed, and even then courts have found ways to cope with vastly more burdensome in camera reviews than the one at issue here. See, e.g., Vioxx Prods. Liability Litig. Steering Cmte. v. Merck & Co., Inc., Nos. 06-30378, 06-30379, 2006 WL 1726675, at *2 (5th Cir. May 26, 2006) (remanding for district court to review 2,000 documents designated as privileged); see also id. at *3 (“Traditional procedural protections are not limitlessly malleable. If staying within those traditional constraints takes more time than jumping their traces, that is not justification for doing so. The time it takes is the time it takes.”).

Moreover, BDO itself could reduce the district court’s workload by meeting its own burden in proving its entitlement to the privilege it seeks. BDO, not EEOC, chose to withhold written communications relevant to the EEOC’s investigation that it must otherwise reveal. BDO, not EEOC, chose to withhold not one or a few but hundreds of communications. BDO, not EEOC, chose not to redact a single communication out of the 278 but rather claimed privilege as to each in its entirety. BDO, not EEOC, chose to submit only a privilege log, with no supporting evidence, to justify its claim of privilege as to all of these communications. And then BDO, not EEOC, supplied that log with vague and/or missing information, including no reference at all to confidentiality.

After making each of these decisions, BDO now argues that it is “an enormous burden” to provide more information and attempts to shift its obligations to the EEOC, suggesting that the agency “was free to challenge . . . individual entries.” Pet. at 13-14. But BDO is required to comply with the EEOC’s investigation by tendering all information relevant to the underlying Title VII discrimination charge, and it is BDO that is asking for hundreds of communications to be excepted from that requirement. Therefore, the burden about which BDO so strenuously objects is largely one of its own making.

CONCLUSION

For the foregoing reasons, BDO’s petition for rehearing en banc should be denied.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Acting Assistant General Counsel

s/Susan L. Starr

Susan L. Starr

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4727

susan.starr@eeoc.gov

[1] In its petition, BDO impermissibly references discussions between BDO and the EEOC that are not in the district court record. Pet. at 6-7 (describing “meet and confer”). BDO’s only record citation for these discussions is to its privilege log, which does not support or document the discussions. Pet. at 6 (citing ROA140-64). As these facts were not presented to the district court, they are not appropriately considered on appeal. See, e.g., Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999) (“An appellate court . . . may not consider facts which were not before the district court at the time of the challenged ruling.”) (internal citation omitted); Fed. R. App. P. 10(a) (defining record on appeal). Moreover, BDO states, falsely, that the EEOC “acknowledged that, on its face, the log was sufficient.” Pet. at 6. The EEOC has consistently maintained that BDO’s privilege log was deficient throughout these proceedings. ROA5-9, 93-97, 201-21.