In re County of Erie

Rule of Law:

Communications between a government attorney and a public official are protected by the attorney-client privilege, even if they include recommendations on policy, so long as the predominant purpose of the communication is to render or solicit legal advice.

Facts:

• Erie County had a written policy of subjecting every detainee who entered its holding facilities to an invasive strip search.
• This policy was applied to all detainees without regard to individualized suspicion or the offense alleged.
• An Assistant Erie County Attorney, who lacked formal policymaking authority, communicated with County officials via email regarding this strip search policy.
• The emails reviewed the relevant law, assessed the legality of the County’s existing policy under the Fourth Amendment, and discussed potential liability.
• The attorney's emails also recommended alternative search policies designed to comply with constitutional requirements.
• Furthermore, the communications provided guidance on implementing and monitoring these new policy changes.

Procedural Posture:

• Adam Pritchard and other plaintiffs filed a class action lawsuit against Erie County and its officials in the U.S. District Court for the Western District of New York.
• During discovery, the County withheld certain emails, asserting attorney-client privilege.
• Plaintiffs filed a motion to compel production of the withheld documents.
• After an in camera review, a Magistrate Judge ordered the County to produce ten emails, finding they ventured into non-privileged policymaking.
• The County objected to the Magistrate Judge's order, but the District Court Judge, after its own review, overruled the objections and affirmed the production order.
• The County then petitioned the U.S. Court of Appeals for the Second Circuit for a writ of mandamus to vacate the District Court's production order.