In the Georgia sludge qui tam, the limits of the attorney-client privilege

by bvernia | November 8th, 2009

District Judge Rosemary Collyer in the District of Columbia issued an opinion on November 5 granting a motion for contempt brought by the defendant in US ex rel Lewis v. Walker, a case pending in the MD Georgia, involving allegations that farmers’ land was ruined by spreading sewage sludge as fertilizer on it.

The defendants had served a subpoena for documents on the Center for Food Safety, which had been cooperating with the qui tam plaintiffs in Georgia. Counsel for the Center sent the defendants’ attorney a letter claiming privilege over the documents, but not producing a privilege log. The defendants filed a motion to compel, which the Court granted when the Center filed no response. Despite this order, the Center continued to refuse to produce documents, although it did provide the defendants’ counsel with an “admittedly insufficient” privilege log. The defendants moved for an order of civil contempt.

The Center based its privilege argument on the fact that its Executive Director is an attorney; the Court noted, however, that he was not practicing as an attorney in his position as Executive Director, that he was not licensed to practice in DC and did not do so, and that he was “certainly not practicing as a trial lawyer.”

The Center also argued in its opposition to the motion that the subpoena was invalid because it was mailed, and because it called for production more than 100 miles from the court in DC (i.e., in Atlanta, Georgia). The Court brushed these claims aside, and ruled that because the Center had failed to produce an adequate privilege log in a timely fashion, it waived those arguments. The Court set a November 16 deadline for production, on pain of a $1000 fine, with an additional $100 per day thereafter.

Although the case does not rule out the possibility of a “joint prosecutorial” privilege between relator’s counsel and counsel for third parties, clearly more diligence in protecting that relationship must be shown than was done here.

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