Feds Ordered to Turn Over DAPL Docs: Judge Rules Some Emails Are Not Privileged
Friday, July 22, 2022A federal magistrate judge has ordered the federal government to turn over potentially hundreds of emails related to actions taken by federal agencies during the 2016-17 protest of the Dakota Access Pipeline.
Judge Alice Senechal is considering the State of North Dakota's lawsuit seeking $38 million in damages from the Army Corps of Engineers for enabling the protest to occur. The judge's ruling said the federal government cannot withhold many of the documents the state is seeking. North Dakota's legal team believes the emails and other documents will prove the Corps and others violated the law by "inviting, enabling and encouraging protestors of the Dakota Access Pipeline to engage in dangerous and illegal conduct on federal lands."
At issue in the case are 1,068 documents withheld by the US government on the basis of attorney-client privilege or the work product doctrine (a legal opinion). The judge cited several precedents related to document disclosure, noting in one instance that "it is well established that a party cannot make a communication privileged simply by including an attorney in the communication."
To reach her decision, Judge Senechal reviewed 20 representative documents selected by the state for in-camera (confidential) review, each of which had been withheld for various reasons by the federal government. The judge's order issued July 8 required the US government to produce documents within seven days that she identified as not protected by the attorney-client privilege or work product doctrine. Further, the ruling requires the government within 28 days to review all other documents it has withheld to identify those that do not meet the standards in the judge's order.
The state is seeking reimbursement for $38 million in costs associated with maintaining law and order during the protest. The suit claims federal employees' actions and inactions resulted in North Dakota unnecessarily incurring costs of law enforcement and first responder time.
Click here to read the judge's 30-page ruling.