United States District Court, D. New Mexico
DIANNE GARRITY ESQ., as Court-Appointed Guardian Ad Litem for S.N.G., a minor, Plaintiff,
THE GOVERNANCE BOARD OF CARIÑOS CHARTER SCHOOL and VERNON JARAMILLO, individually, Defendants.
ORDER FOR SUPPLEMENTAL PRIVILEGE LOG
H. RITTER, UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court sua sponte. The Court has
reviewed Defendant The Governance Board of Carinos
Charter School's Motion to Quash Plaintiff's Subpoena
to Produce Documents, Information, or Objects or to Permit
Inspection of Premises in a Civil Action [Doc. 26] and
the privilege log provided by Defendant The Governance Board
of Carinos Charter School [the Board] in support of its
Motion [Doc. 26-2]. Having concluded that the Board's
privilege log does not satisfy Rule 45(e)(2)(A) of the
Federal Rules of Civil Procedure, the Court will compel the
Board to furnish a supplemented privilege log that allows
Plaintiff and the Court to assess its claims of privilege.
The Court also reminds the parties to honor the privacy
protections mandated by Fed.R.Civ.p. 5.2.
AND PROCEDURAL BACKGROUND
case arises from allegations that Defendant Vernon Jaramillo
was sexually inappropriate toward and sexually assaulted
S.N.G., a minor child, while S.N.G. was a student at
Cariños Charter School and Defendant Jaramillo was the
school's Chancellor and CEO. [Doc. 1');">1-1');">1, pp. 2-4].
Plaintiff's Complaint was filed in the First Judicial
District Court of New Mexico on January 4. 201');">19. [Doc. 1');">1-1');">1].
The case was removed on February 2, 201');">19. [Doc. 1');">1].
August 2, 201');">19, Plaintiff served two subpoenas: one to Ronald
Van Amberg, former counsel for the Board, and one to the New
Mexico Public Education Department (PED). [Doc. 28, pp. 4-6].
Both subpoenas sought documents related to prior allegations
of sexual misconduct by Defendant Jaramillo. [Id.].
The Board moved to quash the subpoena to Mr. Van Amberg,
claiming attorney-client and work product privileges for
documents contained in Mr. Van Amberg's litigation file
for a previous case involving similar allegations against
Defendant Jaramillo. [Doc. 26, pp. 4-5; Doc. 31');">1, pp. 2-3].
The Board supplied a privilege log identifying twenty-three
responsive documents. [Doc. 26-2].
The Parties Shall Comply With Rule 5.2 of the Federal Rules
of Civil Procedure Regarding Privacy
Protection for Filings Made With the Court
preliminary matter, the Court addresses Fed.R.Civ.P. Rule
5.2's privacy protections applicable to filings in this
case. Personal information that may appear in Court filings
is limited. See Id. Pertinent here, a filing may not
disclose an individual's date of birth but may state the
birth year only. Fed.R.Civ.p. 5.2(a)(2). Also, the name of an
individual known to be a minor may not appear in a court
filing; the filing may contain the minor's initials only.
subpoenas issued to Mr. Van Amberg and the PED in this case
contain protected information relative to S.N.G. The Van
Amberg subpoena contains S.N.G's full name. [Doc. 26-1');">1,
p.3]. The PED subpoena contains S.N.G.'s full name and
date of birth. [Doc. 28-1');">1, p. 3]. An unredacted copy of the
Van Amberg subpoena, containing S.N.G.'s full name, was
attached as an exhibit to the Board's filed Motion [Doc.
26-1');">1]. Unredacted language from the Van Amberg subpoena,
including S.N.G's full name, was also copied into
Plaintiff's filed Response [Doc. 28, p. 5]. Additionally,
an unredacted copy of the PED subpoena, containing
S.N.G's full name and date of birth, was attached to
Plaintiff's filed Response. [Doc. 28-1');">1, p. 3].
Court has sealed the filings containing S.N.G.'s
protected information so that they are only visible by the
parties and the Court. [Doc. 26; Doc. 28]. However, the Court
strongly cautions the parties to safeguard such information
in future filings, in compliance with Rule 5.2's privacy
The Board's Privilege Log Contains Insufficient Detail to
Enable the Court to Assess its Claims of Privilege
Motion, the Board claims that the information sought in the
Van Amberg subpoena is protected attorney work product and/or
attorney-client communications. [Doc. 26, pp. 3-5]. For the
work-product doctrine to apply, the asserting party must show
that the documents or materials were prepared in anticipation
of litigation by or for a party or that party's
representative. Fed.R.Civ.P. 26(b)(3). With respect to the
attorney-client privilege, the party asserting the privilege
must show that the material sought constitutes a
“confidential communication made for the purpose of
facilitating the rendition of professional legal services to
the client.” Rule 1');">11');">1-503(B), NMRA.[1');">1" name="FN1');">1" id="FN1');">1">1');">1]
work product or attorney-client privilege are asserted
grounds for withholding information responsive to a subpoena,
the person or entity withholding the information must
“describe the nature of the withheld documents,
communications, or tangible things in a manner that, without
revealing information itself privileged or protected, will
enable the parties to assess the claim.” Fed.R.Civ.P.
45(e)(2)(A). Assessment of privilege “necessarily
requires a sufficient factual record.” Texas Brine
Co., LLC & Occidental Chem. Corp., 1');">1224');">879 F.3d 1');">1224,
1');">1229 (1');">10th Cir. 201');">18). Only when the Court has sufficient
factual information about the contested documents can it make
a principled determination whether the work product or
attorney-client privilege applies. See id.
“Any attempt to make this type of determination without
this factual foundation amounts to nothing more than a waste
of judicial time and resources.” Id.
the Board provided a privilege log which, in most instances,
includes names of the authors and recipients of the withheld
documents, but does not describe the relationship between the
named individuals and the Board, Mr. Van Amberg, or the
litigation at issue. [Id.]. The log includes
descriptions of the documents withheld, but those
descriptions are vague, providing little if any indication
why the withheld document falls under the ...