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finding certain documents, which contain only compilations of facts and are devoid of any legal analysis, are unprotected by the work product doctrine
Summary of this case from Smith v. Scottsdale Ins. Co.Opinion
Action was brought challenging constitutionality of North Carolina system of electing superior court judges. The Governor moved to quash subpoena duces tecum and for protective order. The District Court, James C. Fox, Chief Judge, held that: (1) memoranda prepared by counsel for his own use in prosecuting client's case which do not reveal information supplied in confidence by client are not protected by the attorney-client privilege; (2) drafts of letters and speeches whose contents were of necessity intended to be disclosed to third parties were not protected by the privilege; and (3) more than substantial need and undue hardship must be shown in order to obtain discovery of opinion work product.
Order accordingly.
See also 865 F.2d 1259.
Charles Allen Foster, Patton, Boggs & Blow, Greensboro, N.C., for plaintiffs.
Leslie J. Winner, Ferguson, Stein, Watt, Wallas & Adkins, James E. Ferguson, II, Charlotte, N.C., James M. Wallace, Jr., Office of the Atty. Gen., and Arch T. Allen, III, Moore & Van Allen, Raleigh, N.C., for defendants.
ORDER
JAMES C. FOX, Chief Judge.
NATURE OF THE CASE
Plaintiffs in this action challenge the constitutionality of North Carolina's system of electing Superior Court judges. James G. Martin, Governor of North Carolina (" Governor Martin" ), is a defendant in his official capacity. On March 14, 1990, the North Carolina Association of Black Lawyers (" NCABL" ), defendant-intervenor in this case, applied to the court for a subpoena duces tecum commanding Governor Martin's appearance at a deposition and requiring the Governor to produce:
(a) All documents related to the General Assembly's enactment, or failure to enact, any legislation or proposed legislation to modify the method of electing Superior Court Judges in North Carolina[; and]
(b) All documents which relate to plaintiffs' contention that the current method of electing Superior Court Judges in North Carolina discriminates against the Republican Party and Republican voters.
Governor Martin moved to quash the subpoena duces tecum and for a protective order that his deposition not be had, on the grounds that the subpoena commanded production of documents protected by executive privilege, by the work product doctrine, and by the attorney-client privilege, and because of the unnecessary intrusion on the office of Governor to respond. By order dated November 7, 1990, (the " Order" ) this court ordered that the deposition be held subject to specified limitations, and that Governor Martin supplement his Motion to Quash by: (a) marking all the documents subpoenaed by the NCABL for identification and delivering the same, under seal, to the Clerk of Court for an in camera review by the court; (b) submitting an inventory of all documents by identification number; and (c) submitting a brief disclosing as to each document the applicable privilege(s) and the rationale for the privilege(s).
Governor Martin has submitted a Memorandum in Response to the Order (" Response Memorandum" ) supplementing his Motion to Quash, and said motion is now ripe for ruling.
DISCUSSION
Attached to Governor Martin's Response Memorandum as Exhibit A is a 32 page list of all 369 (by the court's count) subpoenaed documents. Said Exhibit contains, as to each document, a brief indication of the privilege asserted and the reason therefor, the document's " Bates" number, and a brief description of the contents of the document. The index to Exhibit A classifies each document as either " W" (" waiver of privilege" ), " ACP" (" attorney client privilege" ), " WP" (" work product" ), " R" (" not relevant" ), " NP" (" no privilege asserted" ), and " Public record." In addition, the classifications of certain documents are followed by a " ?" (" asserted privilege is based [o]n the limited information currently available" ). No reference is made to executive privilege, because Governor Martin has now elected to waive the same. See Response Memorandum at 4.
The court has carefully reviewed each document identified in Exhibit A individually, and finds Governor Martin's description of, and numbering of, each document to be essentially fair and accurate and has attached a copy of Appendix A to the instant order in order to use the same as a reference. However, for the reasons expressed infra, the court believes that several of the documents for which a privilege is claimed are in fact not privileged, and the court thus declines to adopt the classifications asserted in Exhibit A, except as specifically noted.
The court has found only two minor typographical errors with the " Bates" numbering of the documents. On page three of Appendix A, the first document should be numbered AG00101-104, not AG00104 A; and on page 11, AG01293-129 9 should read AG01293-129 8. The court has corrected these errors on the copy of Appendix A attached to the instant order.
The court recognizes that some courts have used the expedited approach of ruling on the discoverability of documents based only on a review of a resume of the contents of the documents, supplemented by " spot checks" of a few documents. See, e.g., In re Richardson-Merrell, Inc., 97 F.R.D. 481 (S.D.Ohio 1983).
The court will first briefly summarize the applicable law as to evidentiary relevance, the attorney-client privilege, and the work product doctrine , before ruling on Governor Martin's Motion to Quash as to each document.
The work product doctrine (or " rule" ) is also sometimes referred to as the work product privilege. This terminology is not, technically speaking, correct, in that the defense of work product is not a privilege from discovery, but is only a qualified immunity from the same, as will be further discussed infra. See, e.g., International Tel. & Tel. Corp. v. United Tel. Co., 60 F.R.D. 177 (M.D.Fla.1973); Kirkland v. Morton Salt Co., 46 F.R.D. 28 (N.D.Ga.1968).
1. Documents for Which no Protection is Claimed
There are 177 documents for which Governor Martin has either not claimed a privilege, or for which he has waived any privilege. The court hereby ORDERS Governor Martin to comply with the NCABL's subpoena duces tecum as to the three documents listed only as " NP," the 151 documents listed only as " W," and the 23 documents listed only as " Public record," within ten (10) days of the date of this order.
Several documents are classified in alternate categories, e.g. " W; R" or WP; ACP." The court will discuss this category of documents separately, infra.
2. Relevance
There are 48 documents which Governor Martin claims are not discoverable for the sole reason ( see fn. 4) that they are not " relevant" to the subject matter of the instant action. Rule 26(b)(1), Fed.R.Civ.P., provides, in pertinent part, that " [p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...." (Emphasis added.) This court has previously commented on this " relevancy" requirement as follows:
Rules 26 through 37 of the Federal Rules have been interpreted liberally to allow maximum discovery. Hickman v. Taylor,See 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). It is clear that what is relevant in discovery is far different from what is relevant at trial, in that the concept at the discovery state is much broader. C. Wright, Law of Federal Courts 403 (1976). Discovery is designed to define and clarify the issues. If requested materials are reasonably calculated to lead to discovery of admissible evidence, the discovery request is relevant. F.R.Civ.P. 26(b)(1); Weddington v. Consolidated Rail Corp., 101 F.R.D. 71, 73 (N.D.Ind.1984)[; ] Alliance to End Repression v. Rockford, 75 F.R.D. 441, 444 (N.D.Ill.1977). Therefore, discovery requests should be complied with if there is a reasonable possibility that the information sought may be relevant to the subject matter of the action. Sherman Park Community Association v. Wauwatosa Realty, 486 F.Supp. 838, 845 (E.D.Wis.1980).
Spell v. McDaniel, 591 F.Supp. 1090, 1114 (E.D.N.C.1984).
But, while " the requirement of relevancy should be construed liberally and with common sense, rather than in terms of narrow legalisms[,] [n]o one would suggest that discovery should be allowed of information that has no conceivable bearing on the case." C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2008, at 45-46 (1970) (footnotes omitted) (hereinafter " Wright & Miller" ).
The vast majority of these documents are the reverse sides of newspaper clippings commenting on North Carolina's system of electing Superior Court judges. After reviewing the content of these reverse sides, the court finds that Governor Martin has accurately portrayed them as not relevant to the instant document request. Similarly, the court finds that most of the other documents asserted not to be relevant are accurately so portrayed. There are, however, five documents which the court feels might be relevant; these are:
Appendix A, Page No.
Document No.
__
AG00560-592
__
DG00395-396
__
DG00397
__
DG00554
__
DG00555
The court will hold Governor Martin's Motion to Quash in abeyance as to these five documents. If the Governor wishes to continue to claim that these documents are not relevant to the instant case, he should further supplement his Motion to Quash, in accordance with the directions infra, in Section 3. If not, he should comply with the subpoena duces tecum, and so inform the court, also in accordance with the directions in Section 3.
Accordingly, the court hereby GRANTS Governor Martin's Motion to Quash as to all those documents classified only as " R" in Exhibit A, with the exception of those five listed above.
3. Attorney-Client Privilege
Governor Martin claims that 72 documents are protected from discovery for the sole ( see fn. 4) reason that they are protected by the attorney-client privilege. " The attorney-client privilege as traditionally recognized at common law and as now incorporated in the Federal Rules of Evidence , controls in all federal judicial proceedings." In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir.1984) (footnote shifted). The privilege has been defined as follows:
Rule 501, Fed.R.Evid., provides in part:
The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.N.C. Elec. Membership Corp. v. Carolina Power & Light Co., United States v. United Shoe Machinery Corp., Duplan Corp. v. Deering Milliken, Inc., Moore's Federal Practice,
The purpose of the privilege, as recently described by the Supreme Court,
is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.
Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981).
The privilege protects the substance of confidential communications from client to attorney, and renders the same immune from discovery. 8 Wigmore on Evidence § 2291 (McNaughton Rev.1961). Although the protection afforded to such communications promotes public interests, the privilege does impede investigation of the truth by preventing certain evidence from being discovered. Carolina Power & Light Co., 110 F.R.D. at 513 (citing NLRB v. Harvey, 349 F.2d 900, 907 (4th Cir.1965)). Accordingly, courts must strictly construe this privilege. See, e.g., United States v. (Under Seal), 748 F.2d 871 (4th Cir.1984); In re Grand Jury Proceedings, 727 F.2d at 1356; United States v. Jones, 696 F.2d 1069 (4th Cir.1982). In addition, the burden of persuasion as to each of the elements of the privilege is upon the proponent. Carolina Power & Light Co., 110 F.R.D. at 513. As the court noted in United States v. (Under Seal), " in practical terms, this burden requires the proponent to explain, through ex parte submissions if necessary to maintain confidentiality, the significance or meaning of an otherwise cryptic document." 748 F.2d at 876.
In the instant case, several principles which attend the privilege should be emphasized:
(1) In order for the privilege to apply, the attorney-client communication must be given incident to a request for, or the rendition of, legal advice. Carolina Power & Light Co., 110 F.R.D. at 514; Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146. If the communication essentially involves the giving of political advice, then it is not privileged. Cf. Carolina Power & Light Co., 110 F.R.D. at 517 (communications from counsel to corporate management concerning " lobbying" efforts by the corporation not covered by the attorney-client privilege). (2) The privilege does not apply to legal advice which could not arguably reveal a client's confidences. United States v. (Under Seal), 748 F.2d at 874. " The purpose of the privilege is to insure that the client may confide in his attorney to obtain legal advice. Unless the legal advice reveals what the client has said, no legitimate interest of the client is impaired by disclosing the advice." SCM Corp. v. Xerox Corp., 70 F.R.D. 508 (D.Conn.), appeal dismissed, 534 F.2d 1031 (2d Cir.1976).
Most of the documents which Governor Martin claims are protected by the attorney-client privilege involve communications from attorney to client. These communications may, of course, fall within the privilege. Carolina Power & Light Co., 110 F.R.D. at 514. " However, such communications are protected by privilege only if they tend to reveal confidential client communications." Id. (citations omitted). See also United States v. (Under Seal), 748 F.2d at 874 (" Because the privilege protects the substance of communications, it may also be extended to protect communications by the lawyer to his client ... if those communications reveal client communications. ) (emphasis added).
Thus, memoranda or briefs prepared by counsel for his own use in prosecuting his client's case which do not reveal information supplied in confidence by the client, Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947), or memoranda which merely summarize the case law but contain no factual application to the client, Carolina Power & Light Co., 110 F.R.D. 511, are not privileged. (These items can, of course, be protected by the work product doctrine; see infra.)
(3) " [T]he privilege protects only confidential client communications; that is, communications not intended to be disclosed to third persons other than in the course of rendering legal services to the client or transmitting the communications by reasonably necessary means." United States v. (Under Seal), 748 F.2d at 874 (emphasis added) (citation omitted).
The Fourth Circuit has addressed the difficult issue of how to determine when a client intends or assumes that his communication with his attorney will remain confidential. In United States v. (Under Seal), the court stated that:
Rather than look to the existence of the attorney-client relationship or to the existence or absence of a specific request for confidentiality, we must look to the services which the attorney has been employed to provide and determine if those services would reasonably be expected to entail the publication of the clients' communications.
748 F.2d at 875 (emphasis added) (citations omitted). " [I]f a client communicates information to his attorney with the understanding that the information will be revealed to others, that information as well as ‘ the details underlying the data which was to be published’ will not enjoy the privilege." United States v. (Under Seal), 748 F.2d at 875 (quoting In re Grand Jury Proceedings, 727 F.2d at 1356). In a footnote following this quotation, the Fourth Circuit elaborated on what it meant by " the details underlying the data which was to be published" :
The details underlying the published data are the communications relating the data, the document, if any, to be published containing the data, all preliminary drafts of the document, and any attorney's notes containing material necessary to the preparation of the document. Copies of other documents, the contents of which were necessary to the preparation of the published document, will also lose the privilege....
Id. at 875 n. 7 (emphasis added).
In re Grand Jury Proceedings is instructive in this regard. In that case, the Fourth Circuit " held that client communications to a lawyer relating to the preparation of a prospectus to be used in the enlistment of investors were not confidential even though the prospectus was never published because it ‘ was to be published to others and was not intended to be kept in confidence.’ " Id. at 875 (quoting In re Grand Jury Proceedings, 727 F.2d at 1358). The crux of this case was that " [t]he clients had decided to publish a prospectus before approaching their attorney-thus, the attorney had been employed to convey information to third parties rather than to provide legal advice for the clients' own guidance." Id.
In short, " when the attorney has been authorized to perform services that demonstrate the client's intent to have his communications published ... the client lose[s] the right to assert the privilege as to the subject matter of those communications." Id. at 875-76.
With these principles attendant to the attorney-client privilege in mind, the court finds that the Governor has met his burden to show that the privilege applies only as to the following document:
Appendix A, Page No.
Document No.
__
AG00028
As to the remaining 71 documents for which attorney-client privilege is the only privilege asserted, the court perceives that many of the documents are not privileged because they involve attorney-client communications which: (a) occurred incident to a request for, or the rendition of, political, not legal, advice; and/or (b) do not arguably reveal Governor Martin's confidential communications; and/or (c) could not reasonably have been expected to remain confidential. For example, some of these documents are cover letters which do not include facts which could reveal confidential client communications. See Carolina Power & Light Co., 110 F.R.D. at 517. Many of the documents are drafts of letters and speeches, whose contents of necessity were intended to be disclosed to third parties. See id. (" Preliminary drafts of letters or documents which are to be published to third parties lack confidentiality." ) (citing United States v. (Under Seal), 748 F.2d 871, and Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. at 1168). Many more documents are memoranda prepared by counsel which do not reveal information supplied in confidence by the client, Hickman v. Taylor, 329 U.S. at 508, 67 S.Ct. at 392, or memoranda which merely summarize the case law but contain no factual application to the client, and thus could not be protected by the attorney-client privilege, Carolina Power & Light Co., 110 F.R.D. 511.
Governor Martin has requested that, " if the Court has any questions concerning the applicable privilege, the Court first raise the particular question with counsel for the Governor prior to ordering production." Response Memorandum at 5. The court finds this request to be reasonable and, accordingly, will hold Governor Martin's Motion to Quash in abeyance as to the aforementioned 71 documents, to allow the Governor to further supplement his Motion to Quash, in the following manner:
(1) The Clerk of Court will return all of the in camera documents, under seal, to Governor Martin at the time of service of this order. (2) As to those documents for which Governor Martin wishes to continue to claim privilege, he should, within thirty (30) days of the date of this order, present the same, under seal, to the court for further in camera review, accompanied by a supplemental brief accompanied by affidavits or other convincing evidence showing as to each document why the attorney-client privilege applies (in particular, why the court's concerns expressed supra are inapplicable). Said supplemental brief and accompanying evidence may be delivered to the court under seal should the Governor feel that this is necessary to protect the confidentiality of the documents for which attorney-client privilege is asserted. (3) It may be that, upon thoughtful and careful review of the said 71 documents, counsel for Governor Martin will decide to waive privilege to many of the same.
In this respect, the court wishes to reemphasize the admonition it made to counsel in its Order of November 7, 1990: " The court expects Governor Martin's assertion of privilege ‘ to be used in a limited, thoughtful and extremely discriminating manner.’ " Order at 5-6 (quoting Spell v. McDaniel, 591 F.Supp. at 1121).
Accordingly, within thirty (30) days of the date of this order, Governor Martin shall comply with the subpoena duces tecum as to all documents withheld from discovery on claims of attorney-client privilege as to which Governor Martin now wishes to waive privilege. Governor Martin shall submit an inventory of the same to the court within the same time period.
4. The Work Product Doctrine
There are 49 documents which Governor Martin claims are protected from discovery for the sole reason ( see fn. 4) that they are protected by the work product doctrine. Developed in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), and codified in Federal Rule of Civil Procedure 26(b)(3) , the work product doctrine protects materials prepared by an attorney acting for his client in anticipation of litigation absent a showing of necessity or justification for disclosure by the party seeking the documents. See In re Grand Jury Subpoena, 599 F.2d 504, 512 (2d Cir.1979).
This rule reads in pertinent part:
In order to come within the qualified immunity from discovery created by Rule 26(b)(3), a three-pronged test must be satisfied. The material must be:
(1) " documents and tangible things" ; (2) " prepared in anticipation of litigation or for trial" ; (3) " by or for another party or by or for that other party's representative." Wright & Miller § 2024, at 196-97 (quoting Rule 26(b)(3)).
The work product doctrine is separate from, and broader than, the attorney-client privilege. Unlike the privilege, the doctrine is not designed to protect client confidences; rather, it seeks to shelter " the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case." United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975).
But, like the attorney-client privilege, the application of the work product doctrine can derogate from the search for the truth. Accordingly, it should also be narrowly construed. United States v. 22.80 Acres of Land, 107 F.R.D. 20 (N.D.Cal.1985). The party seeking to assert the doctrine as a bar to discovery has the burden of establishing that the doctrine is applicable by establishing as to each document all the elements that trigger the protection. Id.; Virginia Elec. & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D. 397 (E.D.Va.1975). If the required showing is made to the satisfaction of the court, the burden then shifts to the party seeking discovery to show, as to each document, substantial need and undue hardship. Hodges, Grant & Kaufmann v. United States, 768 F.2d 719 (5th Cir.1985).
The above rules on the burden the party seeking production must meet, applies only to the intended discovery of " fact work product" (i.e. " those documents prepared by the attorney which do not contain the mental impressions, conclusions or opinions of the attorney," In re Doe, 662 F.2d 1073, 1076 n. 2 (4th Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982)), not " opinion work product" (i.e. " work product that contains those fruits of the attorney's mental processes," id. ). Opinion work product is especially protected by Rule 26(b)(3), which provides that in ordering discovery of trial preparation materials when the required showing has been made, a court " shall" protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation in question. Rule 26(b)(3), Fed.R.Civ.P.
The writing of an attorney is a " mental impression" of that attorney. Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146 (D.S.C.1974). An attorney's legal " impressions" and " theories" include his tactics, strategy, opinions, and thoughts. Richards-Wilcox Mfg. Co. v. Young Spring & Wire Corp., 34 F.R.D. 212 (N.D.Ill.1964). Opinion work product doctrine material also includes materials reflecting an attorney's legal strategy, intended lines of proof, and evaluation of the strengths and weaknesses of his case. Sporck v. Peil, 759 F.2d 312 (3d Cir.), cert. denied, 474 U.S. 903, 106 S.Ct. 232, 88 L.Ed.2d 230 (1985).
To obtain disclosure of opinion work product, a far stronger showing of necessity and unavailability by other means must be applied than the " substantial need" and " without undue hardship" standard articulated in the first part of Rule 26(b)(3). In the Fourth Circuit, " opinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances." In re Doe, 662 F.2d at 1080 (citation omitted). See also Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 509 F.2d 730 (4th Cir.1974), cert. denied, 420 U.S. 997, 95 S.Ct. 1438, 43 L.Ed.2d 680 (1975). Such an " extraordinary circumstance" was found to exist in In re Doe, where the court made a fraud exception available in order to pierce opinion work product where an attorney attempted to use the same to shield himself from criminal prosecutions arising from his actions in prior litigation. In the instant case, no such extraordinary circumstance is present.
Courts have held that, although opinion work product documents contain some minor factual content which could be physically severed from those documents, the court will not allow the same to be discovered if said factual content consists of selective facts permitting indirect inquiry into the attorney's mental processes. See Williams v. United States Dept. of Justice, 556 F.Supp. 63 (D.D.C.1982).
The court notes that several documents for which work product protection is claimed were prepared for litigation other than this instant action (for the Martin v. Preston, Crawley v. Gudger, and Alexander v. Martin actions). The Fourth Circuit has held that such work product documents do not lose their protection in subsequent and unrelated litigation. Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480 (4th Cir.1973). This is true even if the litigation for which they were prepared has been completed. Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 509 F.2d 730.
The court finds that Governor Martin has met his burden to show that work product protection applies to certain of the 49 documents for which it is the sole protection claimed. The court further finds that the NCABL has not meet its burden to over-come Governor Martin's assertion of either fact or opinion work product protection as to these documents. The court will briefly identify the deficiencies it perceives in the documents for which Governor Martin does not appear to have met his burden.
Documents AG00414 (page 5), AG01368-1369 (page 13), and AG01370-1371 (page 13) are marked by an " ?," indicating, quite candidly, that the assertion that they are protected by the work product doctrine is only " based [o]n the limited information currently available." After reviewing these three documents, the court perceives that Governor Martin's showing of work product protection as to the same is based upon inadequate information.
Document AG01745-1753 (page 16) does not appear to have been prepared in anticipation of litigation. In this regard, the court notes that courts and commentators have formulated several tests for determining whether a document was prepared in anticipation of litigation or for trial, or was prepared in the ordinary course of business. See, e.g., Cohn, The Work-Product Doctrine: Protection, Not Privilege, 71 Geo.L.J. 917 (1983) (and cases and articles cited therein). If the former is the case, the document is protected as work product, whereas if the latter is the case, the document is not so protected. See, e.g., Soeder v. General Dynamics Corp., 90 F.R.D. 253 (D.Nev.1980); Miles v. Bell Helicopter Co., 385 F.Supp. 1029 (N.D.Ga.1974). The test most frequently enunciated is the test the court believes to be the correct one: " [I]n light of the nature of the document and the factual situation in the particular case, can the document be fairly said to have been prepared or obtained because of the prospect of litigation?" Wright & Miller § 2024, at 198 (footnote omitted); United States v. Gulf Oil Corp., 760 F.2d 292 (Temp.Emer.Ct.App.1985).
There are also certain documents which contain only compilations of facts, and are devoid of any legal analysis (and, apparently, any legal significance), and are thus unprotected by the work product doctrine: DG00156 (page 21), DG00383 (page 24), DG00398-415 inclusive (pages 25-26), and DG00598-599 (page 31).
Lastly, the court perceives that counsel can redact the margin notes and highlighting from documents AG00309-387 (page 4), AG00485-518 (page 5), AG01334-1336 (page 12), AG01346-1347 (page 12), AG01806 (page 17), DG00241-242 (page 22), DG00416 (page 27), and DG00447 (page 27), and produce the same for discovery. The court hereby GRANTS Governor Martin's Motion to Quash as to all those documents for which work product protection is the sole protection claimed, with the exceptions specifically noted supra. The court will hold the Motion to Quash in abeyance as to these aforementioned documents, to allow Governor Martin to further supplement his Motion to Quash, or to comply with the subpoena duces tecum as to those documents, and so inform the court, in accordance with the directions supra, in Section 3.
5. Documents which are Classified in Alternate Categories
The court rules as follows on these 23 documents:
Appendix A, Page No.
Document No.
Ruling
Reason
__
AG00029-30
Inadequate showing
__
Protected
WP
__
AG00104A
Protected
R
__
AG00105-107
Protected
WP
__
AG00295-299
Protected
WP
__
AG00301-302
Protected
WP
__
AG00388-391
Protected
WP
__
AG00393-399
Protected
WP
__
AG00467-484
Protected
WP
__
AG00960-979
Inadequate showing
(redact)
__
AG00993-997
Inadequate showing
(redact)
__
AG01020-1021
Protected
ACP; WP
__
AG01615-1622
Protected
R
__
AG01635
Inadequate showing
__
AG01690-1696
Inadequate showing
(redact)
__
DG00149-150
Protected
WP
__
DG00393-394
Protected
WP
__
DG00467-468
Protected
WP
__
DG00482-489
Unprotected
W; Public
record
__
DG00555
Inadequate showing
__
DG00611-612
Inadequate showing
(redact)
__
DG00614-617
Unprotected
W; Public
record
__
DG00632-646
Inadequate showing
See fn. 1.
The court GRANTS the Motion to Quash as those aforementioned documents listed as " protected." As to those documents listed above for which an inadequate showing of privilege has been made, the court will hold the Motion to Quash in abeyance to allow Governor Martin to further supplement his Motion to Quash, or to waive any privilege for the documents so classified, as discussed supra, in Section 3. Governor Martin is ORDERED to comply with the subpoena duces tecum as to the " unprotected" aforementioned documents, within ten (10) days of the date of this order.
CONCLUSION
For the reasons expressed above, the court has hereby:
(1) DIRECTED the Clerk of Court to return all of the in camera documents, under seal, to Governor Martin at the time of service of this order; (2) ORDERED Governor Martin to comply with the NCABL's subpoena duces tecum as to those documents found to be unprotected in Sections 1 and 4 of the instant order, within ten (10) days of the date of this order; (3) GRANTED Governor Martin's Motion to Quash to the limited extent set forth supra; (4) HELD IN ABEYANCE Governor Martin's Motion to Quash to the extent discussed supra, to allow him thirty (30) days from the date of this order within which to supplement said motion in the manner set forth in this order, should he choose to do so; and (5) ORDERED the Governor, within thirty (30) days of the date of this order, to comply with the NCABL's subpoena duces tecum as to all documents withheld from discovery on claims of privilege as to which Governor Martin now wishes to waive privilege, and to submit an inventory of the same to the court.
SO ORDERED.
EXHIBIT A
Abbreviations Used on Index of Privileged Documents:
" The Governor" or JGM-Governor James G.Martin
JRT-James R. Trotter (General Counsel)
SAW-Samuel A. Wilson (Legal Counsel)
JCH-John C. Hunter-(Legal Counsel)
Purrington-J. Ward Purrington-(Legislative Counsel)
" GOP Litigation" -Republican Party of NorthCarolina, et al. v. James G. Martin, Governor of NorthCarolina, et al. and North Carolina Association ofBlack Lawyers, 88-263-CIV-5-F
W-waiver of privilege
ACP-attorney client privilege
WP-work product
R-not relevant
NP-no privilege asserted
?-asserted privilege is based in the limitedinformation currently available
PRIVILEGE
BATES NUMBER
DESCRIPTION
I.
GENERAL COUNSEL'S FILES
A.
GOVERNOR'S SPECIAL COMMITTEE ON JUDICIAL SELECTION
W
AG00001-8
9-14-87 correspondence to JRT from Campen with attachedperiodical article
ACP-legal memorandum between JRT and the Governor
AG00009-11
6-10-87 correspondence to Wells from the Governor withcommunication by JRT
WP-GOP Litigation
AG00012-14
Handwritten notes prepared by JRT
W
AG00015-27
Undated draft entitled " Judicial Selection-AProposal" with attached chart
ACP-JRT notes re: communications with the Governor
AG00028
Handwritten notes of JRT
WP; ACP(?) prepared by JRT in anticipation/course oflitigation; recollection is ultimately used incommunication with the Governor
AG00029-30
11-26-86 handwritten notes of JRT
W
AG00031-33
Undated N.C. Bar Association Committee Roster forAdministration of Justice Study with unknown source ofhandwritten notes
W
AG00034-48
" Selecting Judges in the States: A Brief Historyand Analysis" published in volume 9NorthernKentuckyLawReview, pages 459-473
W
AG00049
7-31 telephone message to JRT from Smith
W
AG00050-84
10-30-86 memorandum to Purrington, JRT, Hunter and Cobbfrom SAW re: Model Judicial Selection Provisions withattachments
W
AG00085-91
7-29-86 correspondence to Browning from JRT withattachment, 7-29-86 correspondence to Coggins from JRT,7-16-86 correspondence to Milliken from JRT, 7-2-86correspondence to JRT from Milliken, 7-16-86correspondence to Drennan from JRT, 7-3-86correspondence to JRT from Drennan
ACP-privilege communication between in-house counsel
AG00092-93
7-1-86 memorandum to JRT from SAW with attachment andattorney notes
ACP-legal communication between JRT and the Governor
AG00094-99
7-7-86 transmittal memorandum from the Governor to JRTwith attachments
W
AG00100
7-8-86 correspondence to Beard from JRT
ACP; WP-JRT notes communicated to Governor; prepared byJRT in anticipation/course of litigation
AG00101-104
Handwritten notes of JRT
R; ACP-JRT notes communicated to Governor; unrelated toinstant litigation
AG00104A
Unrelated handwritten notes of JRT that happen to bewritten on back of other notes related to thelitigation
ACP; WP-prepared by legal intern (law student) onGovernor's staff for JRT's use in advising JGM;prepared in anticipation/course of litigation
AG00105-107
6-10-86 handwritten note of legal intern to JRT withattached memorandum
W
AG00108-112
Handwritten note from Branch to JRT with attachment
W
AG00113-294
6-9-86 correspondence to Beard from Birkes withattachments
B.
GOVERNOR-LITIGATION; REPUBLICAN PARTY V. MARTIN
R (trial strategy); WP-mental impressions, conclusionsand legal theories of counsel prepared and obtained inanticipation/course of litigation
AG00295-299
8-29-89 memorandum to Foster from JRT with attachments
NP
AG00300
8-22-89 correspondence to JRT from Hurley
R (trial strategy); WP(?)-appears to be mentalimpressions, conclusions and legal theories prepared orobtained in anticipation/course of litigation
AG00301-302
Undated typed note of unknown source
WP
AG00303-308
8-28-89 typed notes by unknown source obtained incourse of litigation with handwritten notes of JRT
WP
AG00309-387
9-21-88 transcript of preliminary injunction hearingwith JRT's handwritten notes
R (trial strategy); WP-mental impressions, conclusionsand legal theories of JRT prepared inanticipation/course of litigation
AG00388-391
Undated memorandum to Foster, Hunter and Hurley fromJRT
ACP (Thornburg was representing the Governor at time ofcommunication)
AG00392
11-12-87 correspondence to the Governor from Thornburg
WP; ACP note-7/20/87 document obtained in course oflitigation and reflects trial strategy
AG00393-399
7-30-87 correspondence to Gray from JRT, undatedmemorandum to JRT from Hunter, 7-20-87 correspondenceto JRT from Gray (2 copies)
Public record
AG00400-413
10-5-88 Order entered in pending case
WP(?) at this time we are unable to identify origin ofdocument but content appears to reflect mentalimpressions and theories of litigation
AG00414
Document of unknown origin
Public record
AG00415-416
Civil summons in pending case
Public record
AG00417-466
11-4-87 copy of the complaint filed in Middle Districtof North Carolina, No. C-87-779-G
R (trial strategy); WP
AG00467-484
Outline of proof of unknown source in GOP litigationwith handwritten notes of JRT
WP
AG00485-518
8-1-88 Plaintiffs' Motion for PreliminaryInjunction with attached Memorandum; highlighting ofJRT
WP-legal research obtained by JRT and legal counselstaff in anticipation of litigation
AG00519-559
Case law
R
AG00560-592
8-28-89 published opinion in South Carolina EducationAssociation v. Campbell
WP-obtained by JRT and legal counsel staff inanticipation/course of litigation
AG00593-628
WESTLAW research with handwritten notes
W
AG00629-738
Excerpts from Debates at the 1868 Convention re:Superior Court Judges
W
AG00739-776
Hunter's " Racial Gerrymandering and theVoting Rights Act in North Carolina", volume 9,Campbell Law Review, number 2
WP-legal research obtained by JRT and legal counselstaff in anticipation/course of litigation
AG00777-916
Case law
C.
JUDGESHIP BILL (H.B. 589)
W
AG00917-918
5-11-87 correspondence to Jordan from the Governor with5-8-87 correspondence to the Governor from Jordanattached
W
AG00919
5-8-87 correspondence to Jordan from the Governor
ACP-draft statement prepared by JCH for the Governor
AG00920-926
5-5-87 draft statement prepared by JCH for the Governorre: H.B. 589
Public record
AG00927-934
Undated final statement of the Governor re: H.B. 589
ACP-memorandum prepared by JCH for the Governor
AG00935-937
Undated memorandum prepared by JCH for the Governor
Public record
AG00938-956
4-13-87 House Bill 589
ACP-memorandum prepared by JCH for the Governor
AG00957-959
Undated memorandum prepared by JCH for the Governor
WP; ACP-handwritten notes and highlighting by JRT; usedto advise the Governor
AG00960-979
Undated Senate Bill 287 with handwritten notes of JRT
Public record
AG00980-992
3-25-87 Senate Bill 214
ACP; WP-handwritten notes by JRT with draft ofmemorandum prepared by JCH
AG00993-997
Handwritten notes of JRT with draft memorandum re: H.B.589 and S.B. 287
ACP-legal communication between the Governor and JRT
AG00998
Memorandum to the Governor from JRT
D.
LOOSE DOCUMENTS-NO FILE
ACP-(Thornburg was representing the Governor in thislitigation at time of the communication) legalcommunication between Thornburg and the Governor
AG00999-1004
11-12-87 correspondence to Thornburg from the Governor
Public record
AG01005-1007
4-23-86 Remarks to North Carolina Courts Commission byPurrington
Public record
AG01008-1012
2-7-86 Statement to the North Carolina CourtsCommission on Behalf of the Governor
W
AG01013
Judicial Selection Study Commission
ACP-legal communication between JRT and the Governor
AG01014-1017
Memorandum to the Governor from JRT with attachment
ACP-legal communication between JRT and the Governor
AG01018-1019
12-22-86 memorandum to the Governor from JRT
ACP; WP
AG01020-1021
2 copies of 5/4/89 memorandum to the Governor from JRT,with handwritten notes of the Governor and Purrington
W
AG01022-1027
Memorandum to the Governor from JRT with copies toPurrington, Kirk and Hays
ACP-reflects communication between the Governor and JRT
AG01028
Undated handwritten notes prepared by JCH and JRT
Public record
AG01029-1049
2-21-89 Senate Bill 219 stamped " Adopted"
E.
NEGOTIATIONS WITH ALLEN FOSTER, TOM ROSS AND CHARLIEWINBERRY
ACP-prepared by JRT to advise the Governor
AG01050-1052
Handwritten notes of JRT
ACP-prepared by JRT to advise the Governor
AG01053-1058
Undated notes of JRT
Public record
AG01059-1066
5-16-85 Senate Bill 676
Public record
AG01067-1080
5-15-85 Senate Bill 677
W
AG01081-1094
Undated draft bill of unknown source with highlightingof JRT
W
AG01095-1108
Undated draft bill of unknown source with highlightingof JRT
F.
MERIT SELECTION-LEGISLATION (S.B. 676 & 677)
W
AG01109-1124
6-18-85 correspondence to Soles from Cobb withattachment; with handwriting and notes of JRT
Public record
AG01125-1220
Report of the Courts Commission to the North CarolinaGeneral Assembly 1985
JUDICIAL SELECTION-Press Clippings
R
AG01221
5-13-87 Asheville Citizen article
W
AG01222
5-14-87 Winston-Salem Journal article, withhighlighting of JRT
R
AG01223
5-15-87 N & O article
W
AG01224
5-15-87 Wilson Daily Times article
R
AG01225
5-28-87 Washington Daily News article
W
AG01226
5-28-87 Wilson Daily Times article
R
AG01227
6-19-87 Charlotte Observer editorial
W
AG01228
Winston-Salem Journal editorial
R
AG01229
N & O editorial
W
AG01230
6-28-87 Asheville Citizen editorial, with highlightingby JRT
W
AG01231
Fayetteville Observer editorial
R
AG01232
5-9-87 N & O articles
W
AG01233
5-8-87 Wilson Daily Times editorial
R
AG01234
5-9-87 Wilson Daily Times articles
W
AG01235
5-7-87 Winston-Salem Journal editorial
R
AG01236
Charlotte Observer article
W
AG01237
2-19-87 Durham Morning Herald editorial; FayettevilleObserver editorial
R
AG01238
2-19-87 " Committee Backs Sanford onNicaragua", N & O article
R
AG01239
1-22-87 Wilson Daily News articles
W
AG01240
N & O editorial
W
AG01241
2-13-87 Winston-Salem Journal article
W
AG01242
2-13-87 N & O article
W
AG01243
1-21-87 N & O editorial
R
AG01244
1-20-87 Asheville Citizen editorial
W
AG01245
1-6-87 Winston-Salem Journal editorial
R
AG01246
1-5-87 Asheville Citizen editorial
W
AG01247
1-5-86 Fayetteville Observer editorial
R
AG01248
1-6-87 N & O editorial
W
AG01249
12-18-86 Salisbury Post editorial, with highlighting ofJRT
R
AG01250
12-18-86 Salisbury Post editorial
W
AG01251
12-14-86 Winston-Salem Journal editorial
W
AG01252
12-14-86 Salisbury Post editorial
W
AG01253
Charlotte Observer editorial
R
AG01254
4-29-87 Daily Courier editorial
W
AG01255
4-21-87 Charlotte Observer editorial
W
AG01256
4-21-87 Charlotte Observer editorial
W
AG01257
4-19-87 Winston-Salem Journal editorial
R
AG01258
4-17-87 Watauga Democrat article
W
AG01259
4-18-87 High Point Enterprise editorial
W
AG01260
4-21-87 Winston-Salem Journal editorial
R
AG01261
4-21-87 Wilson Daily Times editorial
W
AG01262
4-16-87 Salisbury Times editorial
R
AG01263
4-20-87 N & O editorial
W
AG01264
4-16-87 Fayetteville Observer editorial
R
AG01265
4-16-87 Raleigh Times editorial
W
AG01266
4-16-87 Greensboro News & Record editorial
R
AG01267
4-16-87 Greensboro News & Record editorial
W
AG01268
3-17-87 Winston-Salem Journal editorial
R
AG01269
3-15-87 Salisbury Post editorial
W
AG01270
3-10-87 Daily Courier editorial
R
AG01271
3-11-87 Asheville Citizen editorial
W
AG01272
2-23-87 Salisbury Post editorial
R
AG01273
2-24-87 Greensboro News & Record editorial
W
AG01274
2-16-87 Wilmington Morning Star editorial
R
AG01275
2-23-87 Charlotte Observer editorial
W
AG01276
2-18-87 High Point Enterprise editorial
R
AG01277
2-19-87 Wilson Daily Times editorial
R
AG01278
2-17-87 Washington Daily News editorial
W
AG01279
2-18-87 Durham Morning Herald editorial
W
AG01280
2-27-87 Wall Street Journal article
W
AG01281
1-17-87 N & O article, with highlighting of JRT
R
AG01282
12-6-86 Greensboro News & Record article, withhighlighting of JRT
R
AG01283
12-9-86 Wilson Daily Times article
R
AG01284-1286
3 copies of 12-6-86 Greensboro News & Recordarticle
W
AG01287
12-4-86 Winston-Salem Journal editorial
R
AG01288
12-3-86 Asheville Citizen editorial
W
AG01289
12-3-86 Charlotte Observer article
R
AG01290
12-3-86 Greensboro News & Record article
W
AG01291
11-20-86 Washington Daily News editorial
R
AG01292
11-20-86 Washington Post article
ACP-reflects advice of JRT to the Governor
AG01293-1298
Handwritten notes of JRT
W
AG01299-1301
Copies of 11-19-86 Durham Morning Herald editorial
W
AG01302-1303
12-2-86 correspondence to JRT from Donaldson with12-4-86 correspondence to JRT from Parker attached
W
AG01304-1307
12-16-86 telephone message to JRT from Head with11-25-86 handwritten note of JRT and attachment
W
AG1308-1313
1-13-87 correspondence to Vosburgh from Exum withattachments
W
AG01314-1319
12-8-86 correspondence to Roule from Head withattachments
W
AG01320
11-16-86 Winston-Salem Journal editorial
R
AG01321
11-17-86 N & O editorial
W
AG01322
11-16-86 N & O editorial
R
AG01323
11-15-86 N & O article
W
AG01324
Undated Charlotte Observer editorial
W
AG01325
10-3-86 Wilmington Morning Star editorial
W
AG01326
9-26-86 Daily Tar Heel editorial
W
AG01327
9-29-86 N & O article
W
AG01328
9-24-86 Greensboro News & Record editorial
R
AG01329
9-11-86 Hertford article
W
AG01330
9-23-86 Winston-Salem Journal editorial
R
AG01331
9-23-86 N & O article
W
AG01332
9-15-86 Greensboro News & Record editorial
W
AG01333
4-23-86 Greensboro News & Record editorial
G.
JUDICIAL SELECTION
WP-JRT obtained in anticipation/course of litigation
AG01334-1336
Article obtained by JRT in anticipation of litigation,with handwritten comments of JRT
Public record
AG01337-1338
2-13-87 Senate Bill 31
W
AG01339-1341
6-10-86 correspondence to JRT and SAW from Beard
W
AG01342
September-October 1985, Bar Leader, article
W
AG01343-1345
March-April 1986, Bar Leader, article
WP-obtained by JRT in anticipation/course of litigation
AG01346-1347
Article from Barnotes, with highlighting ofJRT
W
AG01348-1352
12-11-86 handwritten note to JRT from Browning withattachment; highlighting of JRT
W
AG01353
12-9-86 correspondence to Beard from Wells
W
AG01354-1356
2-27-87 correspondence to Bogle from Pugh withattachment
W
AG01357-1365
12-17-86 memorandum to Merit Selection Committee fromPurrington with attachment
ACP-prepared by JRT for JGM
AG01366-1367
Undated memorandum of JRT
WP(?)-appears to be mental impressions, conclusions andlegal theories prepared or obtained inanticipation/course of litigation
AG01368-1369
Undated typewritten notes of unknown source at thistime
WP(?)-appears to be mental impressions, conclusions andlegal theories prepared or obtained inanticipation/course of litigation
AG01370-1371
Undated typewritten notes of unknown source at thistime
ACP-reflects JRT's communication with the Governor
AG01372
Notes of JRT
W
AG01373-1376
2-15-85 correspondence to JRT from Hunter withattachment
W
AG01377-1383
12-20-84 draft bill
W
AG01384-1395
12-20-84 draft bill
W
AG01396-1563
Undated handwritten memorandum to JRT from Scott withfollowing attached:
[Attachments to AG01396-1563]
ACP-reflects communication with the Governor
AG01397
Handwritten notes of JRT
ACP-reflects communication with the Governor
AG01398
Handwritten notes of JRT
W
AG01399
12-13-84 correspondence to Martin from Sanders
W
AG01400
12-21-84 memorandum to Martin from Sanders
W
AG01401
12-21-84 correspondence to Hunter from Sanders
W
AG01402
12-13-84 correspondence to Martin from Sanders
W
AG01403-1404
12-11-84 memorandum to Martin from Sanders withattachment
W
AG01405-1411
Winter 1984, PopularGovernment, " The Separationof Powers in North Carolina-A 1984 Update", Ann L.Sawyer
W
AG01412-1414
1-9-85 correspondence to JRT from Hunter
W
AG01415-1417
Undated " Administrative Procedure" withcover page for " A Summary of Legislation in the1984 General Assembly of Interest to North CarolinaPublic Officials"
R
AG01418-1435
10-20-83 Governor's Administrative Rules ReviewCommission
R
AG01436-1460
1982 " A Review of Legislation with Respect to thePreparation and Administration of the North CarolinaState Budget", John L. Sanders
R
AG01461-1507
6-27-84 House Bill 1784
R
AG01508-1509
NCBA Administrative Law Committee Recommendation onHouse Bill 1784
W
AG01510-1516
12-20-84 draft bill
W
AG01517-1528
12-20-84 draft bill
W
AG01529-1530
December 1984 typewritten notes of Drennan, I.O.G. withhandwritten comments
W
AG01531-1532
December 1984 typewritten notes of Drennan, I.O.G. withhandwritten comments
W
AG01533-1547
4-12-79 House Bill 1163
W
AG01548-1555
4-12-79 House Bill 1164
R
AG01556-1557
Undated, untitled typewritten notes (believed preparedby Jack Cozart, unrelated to this litigation)
W
AG01558
12-14-84 correspondence to Hunter from Baker
W
AG01559-1560
12-10-84 correspondence to Hunter from Wells
W
AG01561-1563
11-23-84 correspondence to the Governor from Ayscue
[End of Attachments to AG01396-1563]
NP-document prepared by transition team member
AG01564-1572
1-4-85 Judicial Department transition report by Hunter
R
AG01573-1610
2-1-83 state personnel policy
W
AG01611-1614
Undated copy of section entitled " The JudicialBranch" from NorthCarolinaManual pages 764-770with handwritten comments
H.
JUDICIAL SELECTION-S.B. 219
R; ACP-legal counsel's analysis of pendinglegislation unrelated to the instant litigation
AG01615-1622
4-12-89 Senate Bill 857 with memorandum to JRT andPurrington from JCH with attachments
ACP-legal communication between JRT and the Governor
AG01623-1634
2-27-89 memorandum to the Governor from JRT withattachments
WP; ACP-notes reflect in-house communication betweenJRT and JCH
AG01635
Handwritten notes by unknown source
ACP-prepared by JRT to communicate advice to theGovernor
AG01636-1637
Handwritten notes of JRT
ACP-legal communication between JRT and the Governor
AG01638-1641
Typewritten memorandum of JRT
ACP-prepared by JRT for the Governor
AG01642-1651
Undated memorandum prepared by JRT re: S.B. 218, andproposed constitutional amendments with 2-21-89substituted S.B. 218 attached
ACP-prepared by JRT for the Governor
AG01652-1681
Undated memorandum re: proposed S.B. 219 with 2-21-89substitute S.B. 219 attached
ACP-reflects Governor's confidential communicationto his attorneys
AG01682-1685
4-10-89 memorandum; handwritten communication by theGovernor to JRT and Purrington; handwriting andunderlining by the Governor
ACP-reflects Governor's confidential communicationto his attorneys
AG01686-1689
4-10-89 memorandum; handwritten communication by theGovernor to JRT and Purrington; handwriting andunderlining by the Governor
ACP; WP-handwritten notes of JRT used to advise JGM onpending litigation
AG01690-1696
2-21-89 SPCS218-RM proposed substitute for S.B. 218marked " superceded" with handwrittencomments of JRT
W
AG01697-1723
Senate DRS4506-LB(1.11) filed 2-20-89 marked "superceded"
W
AG01724-1744
2-21-89 Proposed committee substitute PCS1616 for S.B.219 marked " superceded"
WP-prepared or obtained by JRT in anticipation/courseof litigation
AG01745-1753
3-29-89 correspondence to JRT from Hunter withattachments
Public record
AG01754-1804
2-15-89 Report of the Judicial Selection StudyCommission; Report to the Governor, Chief Justice,Attorney General and the 1989 General Assembly of NorthCarolina
W
AG01805
Undated map of North Carolina showing Superior Courtjudicial districts as of January 1, 1989
I.
LOOSE DOCUMENT-NO FILE
WP-obtained by JRT in anticipation/course oflitigation; notes reflect mental impressions
AG01806
November 1990 Asheville Citizen Times article, withnotes of JRT
II.
CHIEF OF STAFF'S FILES
W
BG00001
2-9-89 memorandum to the Governor from Kirk
ACP-legal communication between JRT and the Governor
BG00002-3
12-7-88 memorandum to the Governor from JRT throughKirk
W
BG00004-8
4-24-89 memorandum to the Governor from JRT
III.
LEGISLATIVE COUNSEL'S FILES
W
CG00001-18
11-4-86 handwritten memorandum to Legg from Fairchildwith attachments
W
CG00019-20
10-10-86 correspondence to Drennan from Helms
W
CG00021-32
1979 documents detailing judicial selection in Arizona,California, New Hampshire, New Jersey, and Wyoming,with handwritten notes of unknown source
ACP-memorandum prepared by assistant attorney toGovernor's Legislative Counsel; used by Purringtonto advise the Governor
CG00033-44
5 copies 11-5-86 memorandum to Purrington from Legg(Legg was an assistant attorney to Legislative Counsel)
W
CG00045-71
Undated tables and appendix
W
CG00072-79
1979 untitled documents detailing judicial selection inNorth Carolina, Pennsylvania, Louisiana and Idaho
ACP
CG00080-81
Undated preliminary draft document, culminating inlegal memorandum of CG00033-44
IV.
LEGAL COUNSEL'S FILES
A.
FILE 9, GOVERNOR'S STATEMENT ON HOUSE BILL 589
W
DG00001-19
4-13-87 House Bill 589
WP-document obtained or prepared in course ofMartin v. Preston, 325 N.C. 438 (1989),litigation (" Preston litigation" ),with JCH's handwritten comments
DG00020-27
2-19-88 typewritten memorandum
WP- Preston Litigation
DG00028-32
2-19-88 typewritten memorandum with handwrittencomments of JCH
WP- Preston Litigation
DG00033-36A
Undated draft of proposed stipulations with handwrittencomments of JCH
Public record
DG00037-47
4-13-87 House Bill 589
ACP-draft statement prepared by JCH for the Governor
DG00048-54
Undated draft prepared by JCH re: H.B. 589
ACP-memorandum prepared by JCH for the Governor
DG00055-57
Undated memorandum prepared by JCH re: H.B. 589
ACP-draft statement prepared by JCH for the Governor
DG00058-67
Draft statement prepared by JCH for the Governor
ACP-draft document prepared by JCH for the Governor
DG00068-78
Draft statement prepared by JCH for the Governor
ACP-draft statement prepared by JCH for the Governor
DG00079-88
Draft statement prepared by JCH for the Governor
ACP-draft statement prepared by JCH for the Governor
DG00089-99
Draft statement prepared by JCH for the Governor
ACP-draft statement prepared by JCH for the Governor
DG00100-109
Draft statement prepared by JCH for the Governor
ACP-draft document prepared by JCH and JRT for theGovernor
DG00110-119
Draft statement prepared by JCH for the Governor, withhandwritten comments of JRT
ACP-draft statement prepared by JCH for the Governor
DG00120-128
Draft statement prepared by JCH for the Governor
ACP-draft statement prepared by JCH for the Governor
DG00129-136
Draft statement prepared by JCH for the Governor
B.
SUPERIOR COURT ELECTIONS-2; FILE NO. 0792
NP-public record presented to Senate Committee onCourts and Administration of Justice
DG00137-143
Undated Statement of the Governor re: H.B. 589, finaldraft
ACP-draft statement prepared by JCH for the Governorwith handwritten comments of the Governor
DG00144-148
Draft statement prepared by JCH for the Governor
ACP; WP-prepared by JRT for use of the Governorprepared in anticipation/course of Prestonlitigation
DG00149-150
Typewritten memorandum of JRT with his handwrittencomments
WP-obtained by JCH in anticipation/course of theCrawley v. Gudger litigation ("Gudger litigation" )
DG00151
Typewritten chart of JCH with his handwritten notes
WP-prepared by JCH in anticipation/course ofGudger litigation, with handwritten commentsof JCH
DG00152
Undated handwritten notes of JCH
WP-obtained by JCH in anticipation/course ofGudger litigation, with handwritten commentsof JCH
DG00153
Typewritten chart obtained by JCH with his handwrittennotes
R
DG00154
1-12 telephone message to unknown person from Page re:unrelated trial decision
WP-prepared by JCH in anticipation/course ofGudger litigation
DG00155
Undated handwritten notes of JCH
WP-obtained by JCH in anticipation/course ofGudger litigation, with handwritten commentsof JCH
DG00156
Undated typewritten chart obtained by JCH
W
DG00157-157A
9-28-87 correspondence to Freeman from Jones withattachment
WP-prepared by JCH in anticipation/course ofGudger litigation
DG00158
Undated handwritten notes of JCH
ACP-prepared by JRT for use of the Governor
DG00159-160
Undated typewritten memorandum of JRT
WP-prepared by JRT in anticipation/course of litigation
DG00161
10-12-87 typewritten agenda of JRT
W
DG00162-164
9-18-87 correspondence to Brock from Wallace withattachments
WP-prepared in anticipation/course of litigation
DG00165
10-12-87 typewritten agenda of JRT with handwrittencomments of JCH
WP-prepared by JCH in anticipation/course ofGudger litigation
DG00166-167
2 copies of undated typewritten memorandum prepared byJCH
WP-prepared by JCH in anticipation/course of litigation
DG00168
Undated typewritten memorandum prepared by JCH
WP-prepared by JCH in anticipation/course ofGudger litigation
DG00169
Undated typewritten memorandum prepared by JCH
WP-prepared by JCH in anticipation/course ofGudger litigation
DG00170-171
Undated typewritten memorandum prepared by JCH (2copies)
WP-prepared by JCH in anticipation/course ofGudger litigation
DG00172
Undated handwritten notes of JCH
W
DG00173-194
4-13-87 House Bill 589
W
DG00195-205A
4-13-87 House Bill 589
W
DG00206-217
4-13-87 House Bill 589
W
DG00218-227C
4-13-87 House Bill 589
W
DG00228-239
4-13-87 House Bill 589
W
DG00240
5/28/87 handwritten notes of unknown source
WP-obtained by JRT in anticipation/course ofPreston litigation
DG00241-242
5-22-89 N & O article with highlighting of JRT;written communication of JRT to SAW
WP-obtained by SAW in anticipation/course ofPreston litigation
DG00243-244
5-22-87 correspondence to SAW from Bogle, withattachment
ACP-prepared by SAW and JCH for JGM
DG00245-248
Undated draft memorandum of SAW and JCH
ACP-notes of JCH and SAW to prepare the Governor'sstatement on H.B. 589
DG00249-254
8-31-87 handwritten notes of JCH and SAW
W
DG00255
5-8-87 " Electing Judges", Wilson Daily Times
ACP-draft document prepared by JCH for theGovernor's statement on H.B. 589
DG00256-264
Undated draft statement prepared by JCH for theGovernor re: H.B. 589
ACP-draft document prepared by JCH and SAW for theGovernor
DG00265-275
Undated draft memorandum prepared by JCH withhandwritten comments of SAW
Public record
DG00276-284
Undated Statement of the Governor re: H.B. 589, markedfinal draft 5/4/87
ACP-draft statement prepared by JCH for use by theGovernor
DG00285-302
2 copies of undated draft statement prepared by JCH
ACP-draft documents prepared by JCH and SAW for theGovernor
DG00303-312
Undated draft recommendation of the Governor re: H.B.589 prepared by JCH with handwritten notes of SAW
ACP-draft statements prepared by JCH and SAW for theGovernor
DG00313-321
Undated draft statement prepared by JCH for theGovernor re: H.B. 589 with handwritten comments of SAW
ACP-draft statement prepared by JCH and SAW for theGovernor
DG00322-329
Undated draft statement prepared by JCH for theGovernor re: H.B. 589 with handwritten notes of SAW
ACP-draft prepared by JCH and JRT for the Governor
DG00330-338
Undated draft statement prepared by JCH for theGovernor re: H.B. 589 with handwritten notes of JRT
ACP-draft documents prepared by JCH and JRT for theGovernor
DG00339-349
Undated draft recommendation prepared by JCH for theGovernor re: H.B. 589 with handwritten comments of JRT
ACP-draft documents prepared by JCH and SAW for theGovernor
DG00350-359
Undated draft recommendation prepared by JCH for theGovernor re: H.B. 589 with handwritten comments of SAW
ACP-legal analysis by SAW to Governor's in-houseattorneys and Chief of Staff
DG00360-361
5-20-87 handwritten notes of SAW to Purrington, Pugh,JRT and Kirk
ACP-highlighting by JCH for use in advising theGovernor re: H.B. 589
DG00362-372A
4-13-87 House Bill 589 with highlighting of JCH
W
DG00373-374
5-21-87 correspondence to Bogle from SAW, with 5-17-87correspondence to SAW from Bogle attached
Public record
DG00375-376
General Assembly of North Carolina, Session 1987, HouseBill 1514, pages 103 and 104
ACP-notes reflecting communication with in-houseattorneys and Chief of Staff
DG00377-382
Undated handwritten notes of SAW re: H.B. 598
WP-obtained by JCH in anticipation/course ofGudger litigation
DG00383
Chart obtained by JCH
ACP-draft-statement prepared by JCH for JGM
DG00384-392
Undated draft statement prepared by JCH for theGovernor re: H.B. 589
R; WP-prepared/obtained by JRT in anticipation/courseof Gudger litigation
DG00393-394
8-10-87 memorandum to Kirk, Hays and SAW from JRT, withundated chart prepared by JCH
R-confidential memorandum reflecting SAW'sevaluation of potential members of Parole Commission
DG00395-396
Memorandum re: Parole Commission with handwrittencomments of SAW
R-confidential memorandum reflecting SAW'sevaluation of potential members of Parole Commission
DG00397
Memorandum re: Parole Commission with handwrittencomments of SAW
WP-factual research obtained by JCH inanticipation/course of Gudger litigation
DG00398-399
Judicial information
WP-factual research obtained by JCH inanticipation/course of Gudger litigation
DG00400-401
Judicial information
WP-factual research obtained by JCH inanticipation/course of Gudger litigation
DG00402-403
Judicial information
WP-factual research obtained by JCH inanticipation/course of Gudger litigation
DG00404-405
Judicial information
WP-factual research obtained by JCH inanticipation/course of Gudger litigation
DG00406-407
Judicial information
WP-factual research obtained by JCH inanticipation/course of Gudger litigation
DG00408-409
Judicial information
WP-factual research obtained by JCH inanticipation/course of Gudger litigation
DG00410-411
Judicial information
WP-factual research obtained by JCH inanticipation/course of Gudger litigation
DG00412-413
Judicial information
WP-factual research obtained by JCH inanticipation/course of Gudger litigation
DG00414-415
Judicial information
WP-factual research obtained by JCH inanticipation/course of Gudger litigation
DG00416
8-17-98 press release with handwritten notes of JCH
W
DG00417-431
Undated ratified bill of H.B. 589
WP-obtained by JCH in anticipation/course ofPreston and Gudger litigations
DG00432
Undated memorandum
WP-draft complaint prepared by counsel forco-plaintiffs
DG00433-439
Undated draft complaint in Crawley v. Gudger
WP-draft complaint prepared by counsel forco-plaintiffs
DG00440-446
Undated draft complaint in Martin v. Gudger
WP-obtained or prepared in anticipation/course ofGudger litigation
DG00447
Chart of judges with handwritten comments of SAW
C.
SUPERIOR COURT JUDICIAL ELECTION LAW REFORM; FILE #0554
W
DG00448-450A
7-16-86 correspondence to Jones from Freeman withattachment
W
DG00451-452
7-16-86 correspondence to Jones from Freeman
W
DG00453-454
7-14-86 correspondence to Jones from Freeman re:Chapter 957 of the 1985 Session Laws
Public record
DG00455-459
Undated ratified bill for S.B. 892 with ratified billfor S.B. 893 attached
W
DG00460-462
7-28-86 correspondence to Jones from Freeman withratified bill for S.B. 1305 attached
W
DG00463-466
4-22-86 draft bill with highlighting of unknown source
ACP; WP prepared by legal intern (law student) onGovernor's staff for JRT's use in advising theGovernor; prepared in anticipation/course of litigation
DG00467-468
6-10-86 memorandum to JRT from Martin
ACP-in-house legal counsel communications used toadvise the Governor
DG00469-470
5-22-86 memorandum to Purrington from SAW
W
DG00471-472
5-27-86 memorandum to public officials
W
DG00473-474
7-14-86 correspondence to Jones from Freeman
ACP-in-house legal counsel communications used toadvise the Governor
DG00475-477A
6-25-86 memorandum to JRT from SAW
D.
JUDICIAL ELECTION REFORM (SAM'S ARTICLE)
R
DG00478
Undated handwritten note of SAW
W
DG00479-481
3-20-86 draft correspondence of SAW
W; public record
DG00482-489
Undated typewritten note to unknown from K. Rottermanwith 6-21-86 address by the Governor to the GeneralSession of the N.C. Bar Association
W
DG00490-502
4-15-86 correspondence to the Governor from Vaughn withattachments
ACP-believed used by SAW in advising the Governor
DG00503-505
Undated document believed prepared by SAW re: meritselection of judges
Public record
DG00506-508
4-23-86 Remarks to North Carolina Courts Commission byPurrington
W
DG00509-521
4-15-86 correspondence to the Governor from Vaughn withattachments
ACP-legal communication between SAW and the Governor
DG00522-524
5-14-86 memorandum to the Governor from SAW re: meritselection with attachments
W
DG00525-527
3 copies of 5-5-86 correspondence to the Governor fromWells
ACP-legal communication between SAW and the Governor;attached draft of document by SAW for the Governor
DG00528-529
5-13-86 memorandum to the Governor from SAW re:Haith v. Martin
ACP(?)-draft document prepared by SAW for theGovernor's review (unable to determine if executedor sent)
DG00530
5-16-86 unsigned draft correspondence to Wells from theGovernor prepared by SAW
ACP(?)-draft document prepared by SAW for theGovernor's review (unable to determine if executedor sent)
DG00531
5-16-86 unsigned draft correspondence to Aycock fromthe Governor prepared by SAW
ACP-draft document prepared by SAW for theGovernor's review (unable to determine if executedor sent)
DG00532
5-16-86 unsigned draft correspondence to Wells from theGovernor prepared by SAW
ACP(?)-draft document prepared by SAW for theGovernor's review (unable to determine if executedor sent)
DG00533
5-16-86 unsigned draft correspondence to Aycock fromthe Governor prepared by SAW
W
DG00534-537
1-29-85 correspondence to Aycock from Senator Ervinwith attachments
W
DG00538
5-5-86 correspondence to the Governor from Aycock
W
DG00539-540
1-23-85 unsigned correspondence to Senator Ervin fromAycock unsigned
W
DG00541
1-29-85 correspondence to Aycock from Senator Ervin
W
DG00542
5-5-86 correspondence to the Governor from Aycock
W
DG00543-544
1-23-85 unsigned correspondence to Senator Ervin fromAycock
W
DG00545
1-29-85 correspondence to Aycock from Senator Ervin
ACP(?)-draft document prepared by SAW for theGovernor's review (unable to determine if executedor sent)
DG00546-547
5-14-86 unsigned draft correspondence to Vaughn fromthe Governor prepared by SAW
Public record
DG00548-553
2 copies of 4-23-86 Remarks to North Carolina CourtsCommission by Purrington
R
DG00554
5-12-86 memorandum to Purrington from Foster
R; W
DG00555
5-14-86 memorandum to Flood from SAW
ACP(?)-draft document prepared by SAW for theGovernor's review (unable to determine if executedor sent)
DG00556
5-15-86 unsigned draft correspondence to Reynolds fromthe Governor prepared by SAW
ACP-legal memorandum prepared by SAW to the Governor
DG00557-559
5-14-86 memorandum to the Governor from SAW withattachment
W
DG00560-572
4-15-86 correspondence to the Governor from Vaughn withattachments
W
DG00573-576
3-19-86 correspondence to Bradshaw from SAW withattachments
W
DG00577-580
1-17-86 memorandum of SAW
Public record
DG00581-590
2 copies of 2-7-86 statement to the North CarolinaCourts Commission on behalf of the Governor
ACP-legal communication between SAW and Governor
DG00591-596
5-14-86 memorandum to the Governor from SAW withattachment
ACP(?)-draft document prepared by SAW for review by theGovernor (unable to determine if executed or sent)
DG00597
5-15-86 unsigned draft correspondence prepared by SAWfor the Governor
E.
JUDICIAL SELECTION IN NORTH CAROLINA
WP-obtained by JRT in anticipation/course ofPreston and this litigation
DG00598-599
12-88 report of Subcommittee
ACP-obtained by JRT to advise the Governor
DG00600-602
Statutory legal research with handwritten comments andhighlighting of JRT
W
DG00603-605
Undated, " Judicial Selection in NorthCarolina", The North Carolina State BarQuarterly
W
DG00606-610
Undated memorandum re: judicial selection
ACP; WP-used by JRT to advise the Governor; obtained byJRT in anticipation/course of Prestonlitigation
DG00611-612
12-88 report of Subcommittee with handwritten commentsof JRT
W
DG00613
Document of unknown origin, re: North Carolina JudicialStandards Commission
W; Public record
DG00614-617
Summer/1988 speech presented to the Judicial SelectionStudy Committee given by Exum published in TheNorth Carolina State Bar Quarterly
W
DG00618
Undated " Briefly" N & O article "Two Lawyers Warn Against Judicial Appointment"
WP-Document obtained/prepared by SAW and JRT inanticipation/course of Alexander v. Martinlitigation
DG00619-621
5-21-87 memorandum to the Governor from JRT withattachment prepared by SAW
W
DG00622-625
Undated document titled " The Appointment ofJudges in New Jersey"
Public record
DG00626
9-30-88 agenda for the Judicial Selection StudyCommission
W-notes by JRT used to advise the Governor
DG00627
Undated document obtained by JRT with his notes
W
DG00628-631
6-10-87 unsigned draft correspondence to Wells from theGovernor prepared by JRT with attachments
W; R-not relevant to instant request
DG00632-646
4 copies of 11-6-86 memorandum to the JudicialSelection Committee from SAW
Public record
DG00647-797
January 1988 Report of the Governor's JudicialReform Commission for the State of Pennsylvania
The court also notes that a handful of documents are duplicates because they are listed in more than one file. See, e.g., AG00105-107 and DG00467-468, and DG00594-595 and DG00506-508.
The court wishes to emphasize that it has not based its rulings on the descriptions found in Appendix A, but instead has reviewed each document individually.
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.
[A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney ...) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. ... (Emphasis added).