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Banneker Ventures, LLC v. Graham

United States District Court for the District of Columbia

May 16, 2017, Decided; May 16, 2017, Filed

Civil Action No. 13-391 (RMC)



Plaintiff Banneker Ventures, LLC brings this action against Jim Graham, Joshua A. Adler, Robb M. LaKritz, LaKritz Adler Development, LLC, and Washington Metropolitan Area Transit Authority (WMATA) for breach of contract, breach of implied [**2]  covenant of good faith and fair dealing, tortious interference, unjust enrichment, unlawful restraint of commerce, fraud, and civil conspiracy. During fact discovery, Banneker issued a request for documents to WMATA which included the production of 51 witness interview memoranda prepared by the law firm Cadwalader Wickersham & Taft, LLP. Banneker also subpoenaed Cadwalader directly. WMATA now moves for a protective order precluding the production of the 51 witness interview memoranda because they are protected by the work-product and attorney-client privileges. The Court will grant in part and deny in part WMATA's motion for a protective order.


The facts of this case are set forth in detail in the Court's order on Mr. Graham's second motion to dismiss and will be repeated here only as necessary. See Banneker Ventures, LLC v. Graham, No. 13-391, 225 F. Supp. 3d 1, 2016 U.S. Dist. LEXIS 177052, 2016 WL 7408825 (D.D.C. December 22, 2016). This case springs from the breakdown of negotiations between Banneker and WMATA regarding the development of the Shaw-Howard/Florida Avenue Joint Development Site (Florida Avenue Project). See Mem. in Supp. of Mot. for PO [Dkt. 104-1] at 1 (WMATA Mem.). After Banneker's successful bid and over a year of negotiations, WMATA terminated its partnership with Banneker for the development of the Florida Avenue Project on March [**3]  25, 2010. WMATA Mem. at 2. One month later, on April 27, 2010, Banneker's attorney A. Scott Bolden sent a letter to WMATA detailing what Banneker believed to be the improper actions of WMATA and its Board of Directors. See WMATA Mem., Ex. A, April 27, 2010 Letter from A. Scott Bolden to WMATA [Dkt. 104-3] (Bolden Letter). The letter requested an opportunity to restart negotiations and move forward with the Florida Avenue Project. See id. at 10 ("Banneker requests a meeting as soon as possible with the appropriate WMATA officials, including members from the WMATA Joint Development & Retail Estate Committee, in order to expedite WMATA's action on the Project and formal consideration of Banneker's amended Term Sheet."). The Bolden Letter also indicated that Banneker may seek further remedies if negotiations were not restarted. See id. ("If the parties are unable to successfully move forward with action on Banneker's amended Term Sheet, given the foregoing, Banneker is prepared to seek any and all available remedies at law or in equity to address Banneker's damages and concerns regarding the selection process in this instance."). WMATA briefly responded to Banneker's letter, but did not reopen [**4]  negotiations on the Florida Avenue Project. See Opp'n, Ex. B, Cadwalader Report of Investigation for the Board of Directors for the Washington Metropolitan Area Transit Authority [Dkt. 105-3] at 7 n.1 (Bondi Report) (indicating that WMATA's General Counsel responded to some allegations in the 2010 letter from Mr. Bolden, but took no further action).

 [*69]  Over two years later, WMATA retained Cadwalader, Wickersham & Taft LLP to "provide investigative and legal services regarding the actions of WMATA's Board in connection with the Florida Avenue Project." WMATA Mem. at 3. During the investigation, which lasted five months, Cadwalader attorneys interviewed approximately 34 individuals, 19 of whom were current or former WMATA employees or Board members. See id. The interviews resulted in the creation of 51 interview memoranda—the documents which are at issue in this motion for protective order. See id. The Cadwalader attorney who created each memorandum marked the documents "attorney work product." Id.

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253 F. Supp. 3d 64 *; 2017 U.S. Dist. LEXIS 74155 **; 97 Fed. R. Serv. 3d (Callaghan) 923

BANNEKER VENTURES, LLC, Plaintiff, v. JIM GRAHAM, et al., Defendants.

Subsequent History: Counsel Amended April 2, 2018.

Prior History: Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 418 U.S. App. D.C. 398, 2015 U.S. App. LEXIS 14453 (Aug. 18, 2015)


interview, attorney-client, anticipation, disclosure, work-product, negotiations, waived, recommendations, discovery

Civil Procedure, Discovery & Disclosure, Discovery, Privileged Communications, Protective Orders, Relevance of Discoverable Information, Privileged Communications, Work Product Doctrine, Scope of Protection, Attorney-Client Privilege