In Re The County Of Erie

473 F.3d 413 (2nd Cir. 2007)

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Nature of the Case

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Facts

Adam Pritchard, Edward Robinson and Julenne Tucker (Ps) commenced suit under 42 U.S.C. § 1983, individually and on behalf of a class of others similarly situated, alleging that, pursuant to a written policy of Ds every detainee who entered the Erie County Holding Center or Erie County Correctional Facility was subjected to an invasive strip search, without regard to individualized suspicion or the offense alleged, and that this policy violates the Fourth Amendment. Ds withheld production of certain documents as privileged attorney-client communications. Ps moved to compel the production of the logged documents, almost all of which were e-mails. Magistrate Judge Hugh B. Scott inspected the documents in camera. Scott ordered the production of ten of the withheld e-mails. All of them reviewed the law concerning strip searches of detainees, assessed D's current search policy, recommended alternative policies, and monitored the implementation of these policy changes. The communications go beyond rendering 'legal analysis' and proposed changes to the existing policy to make it constitutional, including drafting of policy regulations. Scott reasoned that no legal advice was rendered apart from policy recommendations. D objected to the order and the district court overruled the objections and directed the production. Ds' petition for a writ of mandamus followed.