No. 16-20314

__________________________________________

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________________________

 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

 

                             Applicant-Appellant,

 

v.

 

BDO USA, LLP,

 

                             Respondent-Appellee.

________________________________________________

 

On Appeal from the United States District Court

For the Southern District of Texas

________________________________________________

 

REPLY BRIEF OF THE EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION AS APPLICANT-APPELLANT

________________________________________________

 

 

P. DAVID LOPEZ                                               SUSAN L. STARR

General Counsel                                         Attorney

                                                                  

JENNIFER S. GOLDSTEIN                      U.S. EQUAL EMPLOYMENT

Associate General Counsel                           OPPORTUNITY COMMISSION

                                                                   Office of General Counsel

MARGO PAVE                                          131 M Street, N.E., 5^th Floor

Assistant General Counsel                         Washington, D.C.  20507

 

                                                                   (202) 663-4727

                                                                    (202) 664-7090 (fax)

                                                                   susan.starr@eeoc.gov

TABLE OF CONTENTS

Page

 

Argument.......................................................................................................... 1

 

1.     BDO Failed to Establish That the Privilege Applies to the Withheld Communications…………………………………………………………3       

 

2.     The District Court Erred in Granting BDO a Protective Order………...15

 

Conclusion...................................................................................................... 18

 

Certificate of Compliance

 

Certificate of Service

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Table of Authorities

     Page(s)

Cases

Bowne of New York City, Inc. v. AmBase Corp.,
150 F.R.D. 465 (S.D.N.Y. 1993)................................................................. 4

California Union Insurance Co. v. National Union Fire Insurance Co.,
No. 86-CV-609, 1989 WL 48413 (N.D.N.Y. Apr. 27, 1989)....................... 7

Diversified Industries, Inc. v. Meredith,
572 F.2d 596 (8th Cir. 1977) (en banc)...................................................... 14

EEOC v. Schwan’s Home Service,
707 F. Supp. 2d 980 (D. Minn. 2010), aff’d, 644 F.3d 742 (8th Cir. 2011) 13

Estate of Manship v. United States,
232 F.R.D. 552 (M.D. La. 2005), aff’d,2006 WL 594521

     (M.D. La. Jan. 13, 2006)............................................................................ 10

Hodges, Grant & Kaufmann v. United States,
768 F.2d 719 (5th Cir. 1985)....................................................................... 4

In re County of Erie,
473 F.3d 413 (2d Cir. 2007)............................................................ 9, 11, 12

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

Koumoulis v. Indepedent Financial Marketing Group, Inc.,
295 F.R.D. 28 (E.D.N.Y. 2013), aff’d, 29 F. Supp. 3d 142 (E.D.N.Y. 2014) 13

Matter of Grand Jury Empanelled February 14, 1978,

      603 F.2d 469 (3d Cir. 1979) ...................................................................... 5

Matter of Walsh,
623 F.2d 489 (7th Cir. 1980)..................................................................... 15

Motley v. Marathon Oil Co.,
71 F.3d 1547 (10th Cir. 1995)............................................................. 12, 17

Navigant Consulting, Inc. v. Wilkinson,
220 F.R.D. 467 (N.D. Tex. 2004)................................................................ 6

Nutmeg Insurance Co. v. Atwell, Vogel & Sterling A Division of Equifax Services., Inc., 120 F.R.D. 504 (W.D. La. 1988) ................................................................. 6

Perkins v. Gregg County,
891 F. Supp. 361 (E.D. Tex. 1995).............................................................. 4

Rowe v. Liberty Mutual Group, Inc.,
639 F. App’x 654 (1st Cir. 2016)................................................................ 7

Sid Mike 99, LLC v. SunTrust Bank,
No. 2:07-CV-02453-STA-dvk, 2009 WL 3255209

     (W.D. Tenn. Oct. 6, 2009)........................................................................... 8

SmithKline Beecham Corp. v. Apotex Corp.,
232 F.R.D. 467 (E.D. Pa. 2005)................................................................. 12

Stafford Trading, Inc. v. Lovely,
No. 05 C 4868, 2007 WL 1238915 (N.D. Ill. Apr. 26, 2007).................... 14

TVT Records, Inc. v. Island Def Jam Music Group., a Div. of UMG Recordings, Inc., 214 F.R.D. 143 (S.D.N.Y. 2003)............................................................... 11

United States v. Davis,

     636 F.2d 1028 (5th Cir. 1981) .................................................................. 10

United States v. El Paso Co.,
682 F.2d 530 (5th Cir. 1982)................................................................. 3, 10

United States v. BDO Seidman (II),
337 F.3d 802 (7th Cir. 2003).................................................................... 8-9

United States v. BDO Seidman, LLP,

     492 F.3d 806 (7th Cir. 2007).................................................................... 8-9

United States v. Chen,
99 F.3d 1495 (9th Cir. 1996)....................................................................... 7

United States v. Purchess,
107 F.3d 1261 (7th Cir. 1997)................................................................... 10

United States v. Robinson,

     121 F.3d 971 (5th Cir. 1997)..................................................................... 15

Upjohn Co. v. United States,
449 U.S. 383 (1981)............................................................................. 15, 16

Wyant v. Nationstar Mortgage, LLC.,
No. CIV. A. 14-0422, 2015 WL 474323 (W.D. La. Feb. 4, 2015)............... 4

Statutes

Title VII, 42 U.S.C. § 2000e, et seq...................................................... 1, 17, 18

28 U.S.C. § 636(b)(1) (B) & (C)..................................................................... 13

Equal Pay Act, 29 U.S.C. § 206(d)................................................................... 1

Other Authorities

12 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3070.2 (2d ed. 1997)......................................................................................... 13-14

F.R.C.P. 72(a)................................................................................................. 13

F.R.C.P. 72(b)................................................................................................. 13

FRCP 72(b)(3)................................................................................................ 13

Fed. R. App. P. 28.1(e)(2)................................................................................. 1

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

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

 

ARGUMENT

 

          EEOC commenced these proceedings to enforce an administrative subpoena requiring BDO to produce communications and other materials related to EEOC’s investigation into whether BDO’s top corporate management subjected employees to sex discrimination, national origin discrimination, and retaliation, in violation of Title VII, 42 U.S.C. § 2000e, et seq., and the Equal Pay Act, 29 U.S.C. § 206(d).  BDO argued below that the subpoena should not be enforced as to the approximately 278 communications at issue here because they are protected by attorney-client privilege.[1]  EEOC argued that by providing only a vaguely-worded privilege log, BDO failed to meet its burden of proving that each document, in their entirety, fell within the scope of the privilege.  Based on BDO’s failure of proof, EEOC asked that the magistrate judge either require BDO to produce the communications or, alternatively, conduct an in camera review. 

The magistrate judge denied EEOC’s request, holding that the privilege log was sufficiently descriptive because the log demonstrated that lawyers were in some manner linked to each communication.  That ruling was rooted in the magistrate’s erroneous view that “anything that comes out of that lawyer’s mouth is legal advice” and “is privileged.”  ROA 179, 181.  For the same reason, the magistrate granted BDO’s request for a protective order, requiring EEOC to cease communicating with the charging party and others about conversations with BDO counsel, to identify those with whom EEOC has spoken about such matters, to produce its notes of conversations with EEOC work product redacted and to return to BDO documents containing what the court considered to be privileged communications.  The district court, without examination or explanation, summarily affirmed the magistrate’s order.  EEOC appealed.

          EEOC argued in its opening brief that the district court should have required BDO to produce all 278 documents because BDO failed to meet its burden of proving it could properly withhold communications under its asserted privilege.   EEOC argued, alternatively, that, due to the deficiencies in BDO’s log, the court should have granted EEOC’s request to conduct an in camera review and order, where appropriate, disclosure or partial disclosure, with legal advice and conclusions redacted.  Finally, EEOC argued that the court improperly granted BDO’s motion for a protective order grounded in the same, overly broad legal standard. 

          In response, BDO suggests, contrary to governing law, that it is enough for BDO to simply assert – and not prove – that each withheld communication was made for the purpose of obtaining or providing legal advice.  BDO br. at 11.  And it asserts further (again contrary to the governing federal common law) that it is not required to prove one of the basic elements of attorney-client privilege – confidentiality.  Compare United States v. El Paso Co., 682 F.2d 530, 538 (5th Cir. 1982) (“[w]hat is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer”) (internal quotation omitted), with BDO br. at 13 (confidentiality “has nothing to do with whether the communication was actually privileged”).  BDO’s brief disregards the legal standard it must meet to prove the privilege applies and instead focuses narrowly on the privilege log itself.  BDO’s assertion that the log alone was sufficient to establish privilege as to all the withheld communications is premised on the same erroneous assumption on which the rulings below explicitly rested:  that all communications by in-house and outside corporate counsel to corporate employees are per se privileged. 

1.      BDO Failed to Establish That the Privilege Applies to the Withheld Communications

 

BDO argues that, once it submits its log, the burden of proof shifts away from it as the proponent of the privilege to EEOC as the challenger.  According to BDO, EEOC must then “on a document-by-document basis, demonstrate that the privilege does not apply.”  BDO br. at 11.  There is no support for this burden-shifting paradigm.  As EEOC pointed out in its opening brief, to prove the applicability of attorney-client privilege, BDO must establish all elements required for application of the privilege.  Although EEOC is permitted to present evidence in opposition to BDO’s claim of privilege, because EEOC is not arguing that any exceptions to the privilege apply but rather that BDO has not established the privilege’s applicability, the burden of proof remains at all times with BDO.  See, e.g., Perkins v. Gregg Cty., 891 F. Supp. 361, 363 (E.D. Tex. 1995) (“The burden of proof regarding a privilege’s applicability rests on the party invoking it. Once the privilege has been established, the burden shifts to the other party to prove any applicable exceptions.”) (citing Hodges, Grant & Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985)).  That means BDO must show that the communication (a) was made to an attorney, (b) for the primary purpose of legal advice, and (c) was made and maintained in confidence.  See, e.g., Wyant v. Nationstar Mortg., LLC., No. CIV. A. 14-0422, 2015 WL 474323 at *3 (W.D. La. Feb. 4, 2015) (proponent of privilege “must establish: (1) that there was a communication between client and counsel; (2) the communication was intended to be confidential; (3) the communication was, in fact, kept confidential; and (4) the communication was made for the purpose of obtaining or providing legal advice.”) (internal quotations omitted).  See also Bowne of N.Y.C., Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993) (“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.”) (emphasis added).  Ambiguities as to whether these essential elements have been met are construed against the party asserting the privilege.  See Matter of Grand Jury Empanelled February 14, 1978, 603 F.2d 469, 474 (3d Cir. 1979) (“To the extent that the record is ambiguous as to the elements which are necessary to establish the claim of privilege, ‘[t]he burden of proving that the (attorney-client) privilege applies is placed upon the party asserting the privilege’”) (internal citation omitted).

BDO argues that if its privilege log supplies information similar to that conveyed by the defendant in King v. University Healthcare System, L.C., 645 F.3d 713, 721 (5th Cir. 2011), nothing more is needed for it to establish that the privilege applies to the withheld documents.  BDO br. at 11.  BDO is wrong.  This Court in King did not represent that it was articulating the standard to prove attorney-client privilege.  In fact, the Court prefaced its discussion of the privilege log by making clear that the proponent of the privilege must meet the standards set forth in “judicial precedents.”  Id.  King merely makes clear that if a proponent of attorney-client privilege chooses to use a privilege log as part of its proof, that log is deemed sufficient if it includes specific categories of information.  Id.  Contrary to BDO’s argument, King does not set forth the elements of attorney-client privilege.  C.f. BDO br. at 11 (King “recognized that assertion of attorney-client privilege involves a three-step process”). 

BDO suggests that King condones BDO’s practice of simply indicating on a privilege log that “legal advice” was sought or received, without providing any evidence to support the assertion.  This cannot be determined from the face of the King decision – and it is likely inaccurate.  Unlike this case, King was not a subpoena enforcement proceeding.  It was instead a proceeding on the merits:  the privilege was asserted and the privilege log submitted as part of discovery.  For that reason, the district court likely had evidentiary context in which to consider the privilege log.  This is critical because the ultimate test is whether the proponent of the privilege presents sufficient evidence to establish all the elements required for the privilege to apply.  See, e.g., Nutmeg Ins. Co. v. Atwell, Vogel & Sterling, 120 F.R.D. 504, 510 (W.D. La. 1988) (“[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.”); Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 473–74 (N.D. Tex. 2004) (rejecting claim of privilege where, although proponent offered declaration in support of its privilege log, declaration “wholly fails to explain how [its recited facts] bring any particular document within the ambit of the attorney-client privilege”); see also Rowe v. Liberty Mut. Grp., Inc., 639 F. App’x 654, 657 (1st Cir. 2016) (privilege log deficient where proponent failed to proffer affidavit to make clear why communications should be deemed privileged).

          Here, BDO submitted only its privilege log; it did not offer any affidavits, testimony, or other evidence to support the log.  And as discussed in detail in EEOC’s initial brief, the log itself provided very little on which a court could determine whether each document was entitled to privilege.  BDO simply affixed a label of “legal advice” next to each of the communications.  That is not enough to establish application of the privilege.  “Calling the lawyer’s advice ‘legal’ or ‘business’ advice does not help in reaching a conclusion; it is the conclusion.”  United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996); see also Cal. Union Ins. Co. v. Nat’l Union Fire Ins. Co., No. 86-CV-609, 1989 WL 48413, at *2 (N.D.N.Y. Apr. 27, 1989) (privilege does not attach to a document labeled “legal advice” when it contains business advice).  Whether a communication contains predominately legal advice must be demonstrated by the proponent.  In King, the district court’s decision that the privilege’s proponent did demonstrate that the communications it had withheld should be considered privileged was based on all the evidence before it in connection with a trial on the merits – which included not only the privilege log but also sworn deposition testimony.  See also Sid Mike 99, LLC v. SunTrust Bank, No. 2:07-CV-02453-STA-dvk, 2009 WL 3255209 (W.D. Tenn. Oct. 6, 2009) (holding that proponent satisfied its burden of proof when privilege log was accompanied by supporting sworn testimony).

 The circumstances here are quite different in another respect.  The proponent of the privilege in King listed in its privilege log many items that were, in fact, portions of documents.  The proponent in that case properly went through each at-issue document and redacted only those portions entitled to privilege, producing the rest of each document.  Here, in contrast, BDO did not go through the communications.  Many of the communications BDO listed in its log were multi-page e-mails.  BDO did not attempt to redact any portions containing legal advice.  Rather, it sweepingly asserts that every line of each of the 278 communications, some of which are 11 pages in length, is privileged in its entirety.2   And in contrast with the absence of any evidence to contradict the proponent’s assertion of privilege in King, here EEOC presented the sworn declaration of a party to many of the communications, attesting that the communications were predominately business-related and not legal advice.  Therefore, BDO’s efforts to analogize the circumstances of this case to those in King are misplaced.

BDO’s evidence does not sufficiently describe the contents of the communications for either EEOC or a tribunal to determine whether legal advice was conveyed throughout the entirety of each communication.  The fact that the log adds to the moniker of “legal advice” in the description of the communication the name of an employee or a manager who is involved in a contested matter with BDO does not cure the deficiency.  Legal advice is typically defined as “involv[ing] the interpretation and application of legal principles to guide future conduct or to assess past conduct.”  In re Cty. of Erie, 473 F.3d 413, 419 (2d Cir. 2007) (citation omitted).  Therefore, even if BDO describes a communication as tendering “legal advice” regarding “Tina Johnson complaint,” it is not clear that the communication, in part much less in its entirety, discussed the interpretation and application of the laws.  Whether counsel provided that type of information in the withheld communications cannot be gleaned from the skeletal descriptions in BDO’s log.  See United States v. El Paso Co., 682 F.2d at 541 (privilege log must provide enough information for the court and other parties to be able to test the merits of a privilege claim); United States v. Davis, 636 F.2d 1028, 1044 n. 20 (5th Cir. 1981) (same).

BDO repeatedly makes the assertion that it provided EEOC with all the information it needs.  Pointing to its position statement, it suggests that even if the necessary information is not revealed in the four corners of the privilege log, BDO provided all the factual underpinnings there.  See BDO br. at 6 (“no facts have been withheld” from BDO’s position statement); id. at 14 (EEOC knew “all the underlying facts about Mauer’s claim” from reading BDO’s position statement).  However, BDO’s position statement is not evidence.  It is a compilation of legal theories and factual characterizations by a BDO attorney, not recitations of “facts” to which an affiant competently testifies.  See United States v. Purchess, 107 F.3d 1261, 1268 (7th Cir. 1997) (attorney’s statements regarding particular facts are not evidence); Estate of Manship v. United States, 232 F.R.D. 552, 561 (M.D. La. 2005), aff’d 2006 WL 594521 (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”).  Ironically, while BDO accuses EEOC of having “self-determined” that none of the withheld communications are privileged (BDO br. at 22), it is BDO itself that improperly seeks to “self-determine” that the communications are privileged and have this tribunal simply accept its non-evidentiary representations.  However, any analogy between the two parties breaks down immediately because BDO has the burden of proving the communications are privileged; EEOC does not bear the burden of proving they are not or that a protective order should not issue.

The vagueness of the privilege log is particularly troubling in a case like this where the communications involve in-house counsel.  As EEOC pointed out in its opening brief, it is well recognized that in-house counsel may serve both legal and business interests.  See In re Cty. of Erie, 473 F.3d at 419, 421.  Indeed, although outside counsel may be more “independent” and less likely “to play dual roles,” there is no presumption that communications even with outside counsel are privileged. TVT Records, Inc. v. Island Def Jam Music Grp., 214 F.R.D. 143, 143 (S.D.N.Y.2003) (affirming magistrate’s findings that portions of communications with outside counsel that did not contain legal advice were not privileged).

For this reason, courts that have determined that proponents of the privilege have met their burden have had before them more evidence than the log alone, particularly where the parties disagree whether the communications were predominately business or legal advice.  See, e.g., In re Cty. of Erie, 473 F.3d at 421 (court conducted in camera review to determine applicability of privilege); Motley v. Marathon Oil Co., 71 F.3d 1547, 1551 (10th Cir. 1995) (crediting affidavit from author of at-issue document when determining legal rather than business advice tendered); SmithKline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 478 (E.D. Pa. 2005) (affidavit consistent with claims in log that communication involved legal advice).

Compounding the difficulty in determining whether the communications identified in BDO’s log properly fit within attorney-client privilege is that this case involves communications with human resources personnel.  Bower was BDO’s Director of Human Resources.  As her declaration indicates, while attorneys were involved in some of the communications listed on the log to which she was a party, the attorneys were providing business advice, not legal advice.  Although human resources work involves compliance with certain laws and regulations, the essence of the work is business, not legal.  As one court put it, “[d]espite its legal content, 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.  Thus, just as an employment lawyer’s legal advice may well account for business concerns, a human resources employee’s business advice may well include a consideration of the law.”  Koumoulis v. Indep. Fin. Mktg. Grp., Inc., 295 F.R.D. 28, 45 (E.D.N.Y. 2013), aff’d, 29 F. Supp. 3d 142 (E.D.N.Y. 2014).  

Because the attorney-client privilege only applies if corporate counsel is functioning solely as an attorney giving legal advice to the corporation, the interplay between business and the law in human resources requires close consideration.  Bower testified that some of the communications with BDO’s Deputy General Counsel “were for the purpose of seeking or imparting business directives regarding investigations of officers ostensibly conducted by HR, in an attempt to carry out my duties related to the investigation of officers . . . .”  ROA 238 (Bower’s declaration).3  Despite BDO’s assertion “that neither [Bower] nor the EEOC understands the attorney-client privilege,” BDO br. at 18, these investigations are often found to be business activities, not legal ones.  Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 603 (8th Cir. 1977) (en banc) (privilege does not attach to investigation conducted by attorneys); Stafford Trading, Inc. v. Lovely, No. 05 C 4868, 2007 WL 1238915, at *4-5 (N.D. Ill. Apr. 26, 2007) (close examination of evidence demonstrated that many communications between HR and lawyers were business-related and not privileged).

Because many of the hundreds of communications BDO is withholding involve Bower directly or human resources generally, it is particularly important that BDO provide more than scant descriptions of these communications.4  While it is possible that parts of these communications may fall within attorney-client privilege, that would not render the entire communication privileged.  The burden of proving that the privilege applies to the communication in whole or in part rests with BDO.  And because ambiguities are to be construed against BDO, BDO has failed to establish that the communications listed in the log are privileged.  Accordingly, the district court should have required BDO to produce the communications.  Alternatively, it should have required BDO to either provide additional evidence to establish its assertion of privilege or viewed the withheld communications in camera. 

2.     The District Court Erred in Granting BDO a Protective Order

As EEOC argued below, the protective order was wrongly issued because it is grounded in the same legal error as the order denying EEOC’s application for subpoena enforcement:  the view that “anything that comes out of that lawyer’s mouth is legal advice.”  ROA 179.  In responding to EEOC’s argument, BDO simply reiterates its assertion that because Bower revealed information she learned as HR Director at BDO, that information was necessarily privileged.  However, this is not the standard. 

As noted above, the attorney-client privilege only extends to legal advice.  Facts that are disclosed to an attorney are not cloaked in privilege.  Upjohn Co. v. United States, 449 U.S. 383, 395 (1981) (“The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney”); United States v. Robinson, 121 F.3d 971, 975 (5th Cir. 1997) (“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.”).  See also 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.’” (citation omitted)).

The court below leaped to the conclusion that Bower shared “legal advice” with EEOC because many of the communications at issue were sent to, from, or cc’d to a BDO attorney.5  The magistrate explained that Bower could not discuss these matters with EEOC because “I’m telling you that if it’s communications from or to an attorney, it’s privileged.  And she can’t waive their privilege. . . . She can’t disclose that.”  ROA 181.  Quoting the magistrate, BDO argues that EEOC “elicited conversations” with counsel.  BDO br. at 25.

However, there is no evidence that Bower revealed legal advice to EEOC.  The court below held that it could infer from Bower’s knowledge of underlying facts that she acquired the information from BDO’s counsel.  ROA 178.  (“Well, it sure sounds like from your Requests for Admission that she told you and the EEOC a lot of what General Counsel said.”).  Even if underlying facts were disclosed in communications with BDO counsel, however, that information is not protected.  Again, only legal advice – not communication of factual information – is protected by the attorney-client privilege.  Upjohn Co., 449 U.S. at 395; Motely, 71 F.3d at 1551 (“The mere fact that an attorney was involved in a communication does not automatically render the communication subject to the attorney-client privilege.”).  The district court issued its protective order based on an inaccurate application of legal principles and should be reversed.   

 

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

CERTIFICATE OF COMPLIANCE

 

This reply brief complies with the type-volume limitation, and typeface and type style requirements set forth in Fed. R. App. P. 28.1(e) (2) and Fed. R. App. P. 32(a) (5) and (a) (6).  I certify that this brief was prepared with Microsoft Office Word 2010 and uses Times New Roman type, size 14 point in the body and in the footnotes.  I further certify that the entirety of this brief contains 4136 words, as determined by the Microsoft Word 2010 word count function. 

         

                                                         

                                                                         /s/Susan L. Starr

____________________________

SUSAN L. STARR

Attorney

EQUAL EMPLOYMENT

   OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, NE, 5^th Floor

Washington, DC 20507

(202) 663-4727

susan.starr@eeoc.gov

CERTIFICATE OF SERVICE

 

I certify that on November 2, 2016, I electronically filed the foregoing reply brief with the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system.  I certify that that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.  I further certify that on November 7, 2016, I filed seven paper copies with the Clerk of this Court and two paper copies to opposing counsel.

                                                                              

                                                                         /s/Susan L. Starr

______________________________

SUSAN L. STARR

Attorney

EQUAL EMPLOYMENT

   OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, NE, 5^th Floor

Washington, DC 20507

(202) 663-4727

susan.starr@eeoc.gov