                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 PETER T. LOFTIN, et al.,

           Plaintiffs,
                  v.                                       Civil Action No. 08-mc-487 (JDB)
 ANDRES BANDE, et al.,

           Defendants.


                                  MEMORANDUM OPINION

       The motion to compel now before the Court is related to proceedings underway in the

U.S. District Court for the Southern District of New York, In re Flag Telecom Holdings, Ltd.

Securities Litigation, Civ.A.No. 02-3400 (the "Underlying Action"). The Underlying Action is a

securities class action against certain former officers and directors of Flag Telecom Holdings,

Ltd., and Citigroup Global Markets Inc. The law firm Gibson, Dunn & Crutcher ("defendant" or

"Gibson Dunn") previously represented Flag in several capacities, and plaintiffs served a

subpoena on Gibson Dunn on April 16, 2006, seeking the production of documents related to the

Underlying Action. Over the next two years, Gibson Dunn produced two "privilege logs,"1 and

plaintiffs and Gibson Dunn have argued over the adequacy of those logs as well as Gibson

Dunn's document production.

       Plaintiffs filed this motion on July 24, 2008. After the motion was fully briefed, on

October 17, 2008 this Court ordered Gibson Dunn to produce sixteen documents for in camera



       1
         The first privilege log, provided to plaintiffs on January 10, 2007, will be referred to as
the "Privilege Log." The second privilege log, provided to plaintiffs on September 26, 2007, will
be referred to as the "Supplemental Log."
review. On November 11, 2008, the parties filed a joint motion to stay ruling on plaintiffs'

motion because of an anticipated ruling in the Underlying Action. This Court granted the motion

to stay, and then granted a joint motion to continue the stay on January 29, 2009. On May 29,

2009, the parties filed a status report advising the Court that rulings in the Underlying Action had

not mooted plaintiffs' motion before this Court.

       The analysis that follows does not address every document contained in the privilege logs

or specifically identified by the parties in their briefing. The privilege logs describe over 800

documents and plaintiffs identify 125 documents as problematic in their briefs. Instead, the

Court's analysis addresses in detail the sixteen documents it reviewed in camera. It is the Court's

hope -- indeed, its expectation -- that, through application of this analysis to other contested

documents, the parties will resolve their remaining discovery disputes.

                                            ANALYSIS

       Plaintiffs raise three arguments in their motion: (1) the privilege logs are insufficient

under the Federal Rules of Civil Procedure; (2) Gibson Dunn overreaches with its claims of

attorney-client privilege; and (3) Gibson Dunn has improperly withheld documents under the

attorney work product doctrine.

I. Adequacy of the Privilege Log

       Plaintiffs take issue with the privilege logs in their entirety, arguing that their descriptions

are too cursory under the Federal Rules of Civil Procedure. Under Rule 45(d)(2)(a), a party

invoking a privilege must "describe the nature of the withheld documents, communications, or

tangible things in a manner that, without revealing information itself privileged or protected, will

enable the parties to assess the claim." Privilege logs must "state the basis upon which the


                                                   -2-
privilege is claimed, state the subject matter, number of pages, author, date created, and the

identity of all persons to whom the original or any copies of the document were shown or

provided." Director of OTS v. Ernst & Young, 795 F. Supp. 7, 11-12 (D.D.C. 1992) (internal

ellipsis omitted). Of the sixteen documents the Court ordered defendant to produce for in camera

inspection, the Privilege Log and the Supplemental Log provide adequate descriptions for eleven

documents. See Document Nos. 84, 128, 250, 267, 276, 303, 356, 367, 464, 698, and 802.

       The remaining five descriptions, however, are insufficient. The descriptions for

Document Nos. 403 and 490 are insufficient because they do not specify the subject matter of the

teleconferences. The description for Document No. 431 is insufficient because it does not

identify all of the known participants in the teleconferences. Similarly, the description for

Document No. 521 is insufficient because it never identifies the memorandum recipient by name.

Finally, the description for Document No. 762 is insufficient because it simply refers to "revised

redlines" or "draft agreements." This sparse description does not adequately describe the subject

matter of those drafts.

       But these descriptions, while inadequate, do not result in a wholesale forfeiture of

defendant's claim of privilege, as plaintiffs claim. Rather, plaintiffs should identify other entries

on the Privilege Log or Supplemental Log that they believe are similarly deficient and defendant

should supply the missing information.

II. Attorney-Client Privilege and Attorney Work Product

       Most of the documents plaintiffs seek involve communications from an attorney. See

Plaintiffs' Memorandum in Support of Its Motion to Compel ("Pls. Mem.") at 17 n.24. Plaintiffs

contend that, in the D.C. Circuit, communications from an attorney are only privileged if they


                                                 -3-
"disclose[] a confidential communication from the client." Id. at 18 (citing Banks v. Office of

Senate Sergeant-at-Arms, 222 F.R.D. 1, 3 (D.D.C. 2004)). In plaintiffs' view, thirteen of the

sixteen documents the Court ordered defendant to produce for in camera inspection are not

privileged under the law of this Circuit because they are not adequately tied to a confidential

client communication. See Document Nos. 84, 128, 250, 276, 303, 356, 367, 403, 431, 464, 490,

521, and 762.

       Attorney-client privilege is not quite as narrow as plaintiffs would have it. To be sure,

Banks provides that "[t]he attorney-client privilege also protects communications from the

attorney to the client but only insofar as the attorney's communication discloses a confidential

communication from the client." Banks, 222 F.R.D. at 3. But a long line of cases in the D.C.

Circuit -- including the case Banks relies on for this proposition, Brinton v. Dep't of State, 636

F.2d 600 (D.C. Cir. 1980) -- demonstrate that Banks does not accurately convey the Circuit's

approach to attorney communications. Brinton held that "when the attorney communicates to the

client, the privilege applies only if the communication 'is based on confidential information

provided by the client.'" 636 F.2d at 603-04 (quoting Mead Data Cent., Inc. v. Dep't of Air

Force, 566 F.2d 242, 254 (D.C. Cir. 1977)) (emphasis added); see also In re Sealed Case, 737

F.2d 94, 99 (D.C. Cir. 1984) (holding that unsolicited "advice prompted by the client's

disclosures" could be privileged because privilege applies to attorney communications "'based, in

part at least, upon a confidential communication to the lawyer from the client.'" (quoting Brinton,

636 F.2d at 603-04 (emphasis in original))).

       With these principles in mind, the Court has reviewed Document Nos. 84, 128, 250, 276,

303, 356, 367, 403, 431, 464, 490, 521, and 762. All these documents are attorney


                                                 -4-
communications of advice based in part on a confidential client communication, and these

documents are therefore privileged.

       Plaintiffs also seek documents that supposedly involve a non-attorney providing legal

advice. See Document Nos. 267, 276, and 698. Document No. 267 is easily resolved. The

Privilege Log states that the document is an "email exchange" "seeking legal advice of counsel

(Van Ophem, K.*)2 and reflecting legal advice of counsel (Van Ophem, K.*)" regarding "Global

Crossing Request." This description does not suggest that a non-attorney provided legal advice

and the document reviewed in camera bears that out. Document No. 276 is also easily resolved.

Although the Privilege Log states that an email from a non-attorney, Jauregui, P., "contain[s]

legal advice of counsel," the Supplemental Log makes clear that the document is "[e]mails

between Flag in-house counsel and Flag personnel re: terms of KPNQwest agreement." Hence,

the description from the Supplemental Log does not indicate that a non-attorney provided legal

advice, and the document reviewed in camera supports that description.

       Document No. 698 warrants a closer analysis. Defendant explains in its Response to the

Court's Order to Produce Documents ("Def. Resp.") that Document No. 698 contains emails

between a Flag business employee and a Flag legal department employee, with copies to Flag's

general counsel. Def. Resp. at 4. "[D]ocuments prepared by non-attorneys and addressed to

non-attorneys with copies routed to counsel are generally not privileged since they are not

communications made primarily for legal advice." Neuder v. Battelle Pacific Northwest Nat.

Laboratory, 194 F.R.D. 289, 295 (D.D.C. 2000). But "the attorney-client privilege may be

extended to non-lawyers who are 'employed to assist the lawyer in the rendition of professional


       2
           Gibson Dunn identified attorneys with asterisks in their privilege logs.

                                                  -5-
legal services.'" Blumenthal v. Drudge, 186 F.R.D. 236, 243 (D.D.C. 1999) (quoting Linde

Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, 1514

(D.C. Cir. 1993)). Extension of the privilege "should only occur when the communication was

made in confidence for the purposes of obtaining legal advice from the lawyer." Id. Here, non-

attorneys are employed in the legal department "to assist the lawyer in the rendition of

professional legal services." See id. Emails between non-attorneys employed in the in-house

legal department and other Flag employees, then, are privileged so long as they contain

confidential communications for the purpose of legal advice. Document No. 698, which contains

confidential communications made for the purpose of legal advice regarding a "master services

agreement," is therefore properly withheld as privileged.

       Next, plaintiffs contend that defendant has improperly withheld unprivileged draft

documents. See Document Nos. 356 and 698. Plaintiffs argue that draft documents are not

automatically protected under the attorney-client privilege. Document Nos. 356 and 698 are not

good examples to explore plaintiffs' argument. The draft attached to the email in Document No.

356 is clearly not privileged (the draft was created by an adverse party and defendant appears to

have produced it). Defendant produced the attachment to Document No. 698 as well.

Nevertheless, a short explanation of the legal principles for claiming privilege as to draft

documents is warranted because plaintiffs raise the same argument for numerous other

documents which the Court did not order defendant to produce for in camera inspection. See,

e.g., Document Nos. 79, 251, and 254.

       A draft may receive attorney-client privilege or attorney work product protection. Drafts,

standing alone, are not "communications" and hence normally are not within the attorney-client


                                                 -6-
privilege. See In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (describing drafts as

"material that is outside the attorney-client privilege."). But a draft is protected under the

attorney-client privilege if the draft itself contains protected confidential communications from

the client or the attorney. See Ideal Elec. Co. v. Flowserve Corp., 230 F.R.D. 603, 606-07 (D.

Nev. 2005). And a draft receives attorney work product protection if it is prepared by an attorney

"in anticipation of litigation." See Fed. R. Civ. P. 26(b)(3); In re Sealed Case, 146 F.3d at 884.

The parties should apply these principles in resolving their disputes regarding other draft

documents.

        Similarly, plaintiffs contest defendant's claim that an attorney's handwritten notes of

conversations or teleconferences may not be protected. See Document No. 431. Like draft

documents, an attorney's handwritten notes can be protected under attorney-client privilege or

work product protection. If the attorney takes notes of a confidential conversation with his or her

client, then those notes are privileged to the extent they reflect the client's confidential

communications. If the attorney takes notes of an unprivileged conversation, then work product

protection may apply if the notes reflect an attorney's mental impressions and the notes were

prepared in anticipation of litigation. If the notes effectively transcribe an unprivileged

conversation, however, work product protection does not apply.

        In applying these principles to Document No. 431, the Court concludes that some

portions of these notes are protected and others are not. As defendant explained, Document No.

431 consists of eight sets of notes. Def. Resp. at 7-8. Using defendant's numbering system, parts

(1), (3), (4), (6), and (8) all contain attorney notes regarding privileged conversations. These

portions of the notes are therefore protected under the attorney-client privilege. Parts (2) and (7),


                                                  -7-
however, are attorney notes of conversations involving a staff attorney from the House Energy

and Commerce Committee. These notes, therefore, do not receive attorney-client protection.

Nor do they receive work product protection. Although defendant claims that the notes "reflect

[an attorney's] thoughts and mental impressions," a careful review of the notes indicates that they

simply transcribe an unprivileged conversation. Parts (2) and (7), then, are not protected and

shall be produced. As to part (5), which also consists of notes of a conversation involving a staff

attorney from the Committee, defendant's claim that the notes contain an attorney's thoughts and

mental impressions is more persuasive. Nonetheless, a majority of part (5) is simply a

transcription of the conversation, and thus most of part (5) is not protected. Hence, defendant

shall produce a redacted version of part (5) as well.

       Finally, plaintiffs question whether documents with dates that precede Gibson Dunn's

representation of Flag may be protected. Document Nos. 250 and 276, for example, are dated

February 8, 2001 and June 27, 2000, respectively. As discussed above, the Court has reviewed

these two documents to determine whether they are entitled to protection under the attorney-

client privilege. And, under Brinton, 636 F.2d at 603-04, these documents are privileged because

they are attorney emails based in part on confidential communications by the client seeking legal

advice. The issue, then, is whether these documents may be privileged even though they predate

Flag's engagement of Gibson Dunn.

       A client does not waive privilege when it provides privileged documents to its litigation

counsel in confidence. Hence, these documents remain privileged even though the protection

attached before Gibson Dunn was retained. But this should not be interpreted to mean that a

client can create privilege by disclosing non-privileged facts to litigation counsel. Attorney-


                                                 -8-
client privilege protects confidential communications between a client and an attorney, not the

underlying information itself. Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981). Had

the underlying emails in Document Nos. 250 and 276 not been privileged, the mere transmission

of these documents from Flag to Gibson Dunn would not have created the privilege Gibson Dunn

now claims.

                                         CONCLUSION

       First, plaintiffs claim that the privilege logs are insufficient. Although most of the

challenged privilege log entries are adequate, plaintiffs are correct that some entries lack

elements identified as essential by courts in this Circuit. Second, plaintiffs claim that some of the

documents are not entitled to attorney-client privilege or attorney work product protection. Most

of plaintiffs' arguments are unpersuasive for the reasons discussed above. But plaintiffs' claims

are not entirely without merit, also as discussed above. Accordingly, plaintiffs' motion to compel

will be granted in part and denied in part. With the guidance the Court has provided here, the

parties should attempt to resolve their remaining discovery issues. A separate order accompanies

this opinion.

       SO ORDERED.



                                                                       /s/ John D. Bates
                                                                      JOHN D. BATES
                                                                      United States District Judge
Date: June 16, 2009




                                                 -9-
