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Pritchard v. County of Erie (In re County of Erie)

United States Court of Appeals for the Second Circuit

September 12, 2006, Submitted ; January 3, 2007, Decided

Docket No. 06-2459-op

Opinion

 [*415]  DENNIS JACOBS, Chief Judge:

 [**2]  In the course of a lawsuit by a class of arrested persons against Erie County (and certain of its officials) alleging that they were subjected to unconstitutional strip searches, the United States District Court for the Western District of New York (Curtin, J.) ordered the discovery of e-mails (and other documents) between an Assistant Erie County Attorney and County officials that solicit, contain and discuss advice from attorney to client. The County defendants petition for a writ of mandamus directing the district court to vacate that order. The writ is available because: important issues of first impression are raised; the privilege will be irreversibly lost if review awaits final judgment; and immediate resolution of this dispute will promote sound discovery practices and doctrine. Upon consideration of the circumstances, we issue the writ ordering the district court: to vacate its order, to determine whether the privilege was otherwise waived, and to enter an interim order to protect the confidentiality of the disputed communications.

On July 21, 2004, plaintiffs-respondents Adam Pritchard, Edward Robinson and  [*416]  Julenne Tucker commenced suit under 42 U.S.C. § 1983 [**3]  , individually and on behalf of a class of others similarly situated, alleging that, pursuant to a written policy of the Erie County Sheriff's Office and promulgated by County officials, every detainee who entered the Erie County Holding Center or Erie County Correctional Facility (including plaintiffs) was subjected to an invasive strip search, without regard to individualized suspicion or the offense alleged, and that this policy violates the Fourth Amendment. 1 They sued the County of Erie, New York, as well as Erie County Sheriff Patrick Gallivan; Undersheriff Timothy Howard; the acting Superintendent of the Erie County Correctional Facility, Donald Livingston; the Deputy Superintendent, Robert Huggins; and the Superintendent of the Erie County Holding Center, H. McCarthy Gibson (collectively, the "County").

During the course of discovery, the County withheld production of certain documents as privileged attorney-client communications; a privilege log [**4]  was produced instead, pursuant to the Federal Rules of Civil Procedure and Local Civil Rules for the Western District of New York. In August 2005, plaintiffs moved to compel production of the logged documents, almost all of which were e-mails. The County submitted the documents to Magistrate Judge Hugh B. Scott for inspection in camera. In January 2006, Judge Scott ordered production of ten of the withheld e-mails, 2 which (variously) reviewed the law concerning strip searches of detainees, assessed the County's current search policy, recommended alternative policies, and monitored the implementation of these policy changes.

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473 F.3d 413 *; 2007 U.S. App. LEXIS 26 **

In re: THE COUNTY OF ERIE, ADAM PRITCHARD, EDWARD ROBINSON, and JULENNE TUCKER, both individually and on behalf of a class of others similarly situated, Plaintiffs-Respondents, v. THE COUNTY OF ERIE, PATRICK GALLIVAN, both individually and in his official capacity as Sheriff of the County of Erie, TIMOTHY HOWARD, both individually and as Undersheriff of the County of Erie, DONALD LIVINGSTON, both individually and as Acting Superintendent of the Erie County Correctional Facility, and ROBERT HUGGINS, both individually and as Deputy Superintendent of the Erie County Correctional Facility, Defendants-Petitioners, H. MCCARTHY GIBSON, both individually and as Superintendent of the Erie County Holding Center, Defendant.

Subsequent History: On remand at, Motion denied by Pritchard v. County of Erie, 2007 U.S. Dist. LEXIS 42528 (W.D.N.Y., June 11, 2007)

Prior History:  [**1]  Motion for a writ of mandamus ordering the United States District Court for the Western District of New York (Curtin, J.) to vacate an order compelling production of communications asserted to be protected by the attorney-client privilege. For the reasons that follow, we issue the writ ordering the district court to vacate its order; to determine whether the privilege was otherwise waived; and to enter an appropriate order in the interim, protecting the confidentiality of the disputed communications.

Pritchard v. County of Erie, 2006 U.S. Dist. LEXIS 94775 (W.D.N.Y., Apr. 7, 2006)

Disposition: The court issued a writ of mandamus ordering the district order to vacate its order, to determine whether the distribution of some of the disputed e-mails to others within the county sheriff's department constituted a waiver of the attorney-client privilege, and to enter an interim order to protect the confidentiality of the disputed communications.

CORE TERMS

legal advice, attorney-client, advice, e-mails, communications, discovery, policies, compliance, district court, confidential, privileged, documents, purpose of obtaining, predominant purpose, recommendations, implementing, solicit, public official, consultation, disputed, mandamus, protects

Civil Procedure, Appeals, Appellate Jurisdiction, Interlocutory Orders, Evidence, Privileges, General Overview, Writs, Common Law Writs, Mandamus, Attorney-Client Privilege, Scope, Governments, Local Governments, Employees & Officials, Burdens of Proof, Allocation, Claims By & Against, Elements