## Facts

- The Erie County Sheriff’s Office had a written policy requiring every detainee entering the county holding center or correctional facility to undergo an invasive strip search, without individualized suspicion and without regard to the offense charged.
- Three detainees filed a putative class action under 42 U.S.C. § 1983 against Erie County and several county officials, alleging the blanket strip-search policy violated the Fourth Amendment.
- During discovery, the County withheld various internal communications as attorney-client privileged and served a privilege log.
- Plaintiffs moved to compel production of the withheld materials.
- A magistrate judge reviewed the materials in camera and ordered the County to produce ten emails exchanged between an Assistant County Attorney and county officials.
- The ten emails discussed the law governing strip searches, evaluated the County’s existing practices, suggested alternative approaches, and tracked implementation of recommended changes.
- The magistrate judge concluded the emails were not privileged because they were characterized as policy recommendations rather than legal advice.
- The district court reviewed the emails in camera under the “clearly erroneous” standard and upheld the order compelling production.
- The County petitioned the Second Circuit for a writ of mandamus directing the district court to vacate the disclosure order.
- A motions panel denied a stay, and the emails were turned over to plaintiffs before the merits panel decided the mandamus petition.

## Issues

1. Whether a mandamus petition seeking review of a disclosure order for allegedly privileged materials becomes moot once the materials have been produced to the opposing party.
2. Whether mandamus is an appropriate vehicle to review a district court order compelling disclosure of purportedly privileged attorney-client communications.
3. Whether emails between a government lawyer and government officials that contain both legal analysis and policy implementation guidance are protected by the attorney-client privilege.
4. What standard governs dual-purpose communications—i.e., how to decide whether the “primary” or “predominant” purpose of the communication is legal advice.

## Decision

- The Second Circuit held the petition was not moot even though the emails had already been disclosed, because a court can still provide effective relief by limiting any further use of the communications in discovery and at trial and by ordering steps to protect confidentiality.
- The court granted mandamus, concluding that immediate review was warranted because compelled disclosure of privileged communications causes harm that cannot be fully repaired after final judgment and because the privilege question carried broader significance for government attorney-client communications.
- Applying a “predominant purpose” inquiry, the court held the ten emails were protected by the attorney-client privilege because their dominant character was to seek and provide legal advice about constitutional requirements and legal exposure tied to the strip-search policy.
- The court rejected a categorical rule that communications lose privilege whenever they include policy recommendations; advice aimed at legal compliance can remain legal advice even when it includes recommendations on how to implement changes.
- The court directed the district court to vacate the disclosure order, to determine on remand whether the privilege had been otherwise waived (for example, by dissemination beyond those with a need to know), and to enter an interim order protecting confidentiality and restricting use of the disputed communications.

## Legal Principles

- Attorney-client privilege protects confidential communications between attorney and client made for the purpose of obtaining or providing legal assistance.
- The privilege applies to communications between government lawyers and government officials when the communications are confidential and made to obtain or render legal advice.
- For communications with mixed legal and non-legal content, privilege turns on whether the predominant purpose of the communication is to solicit or provide legal advice; the presence of policy or administrative discussion does not defeat privilege if legal advice is the main objective.
- Legal advice may include guidance on how to comply with the law and how to reduce legal risk, including recommendations connected to implementing lawful practices.
- Mandamus can be appropriate to review compelled-disclosure orders involving alleged privilege, because post-judgment review may be inadequate once confidentiality is lost.
- Disclosure to an adversary does not automatically moot a privilege dispute when a court can still order meaningful relief, such as limiting future use of the materials and entering protective measures.
- Even when a communication is privileged, the privilege can be waived through voluntary disclosure to persons outside the attorney-client relationship or outside the client’s need-to-know group; waiver is a separate inquiry to be addressed on remand.

## Conclusion

In *In re County of Erie*, the Second Circuit granted mandamus and held that ten emails between an Assistant County Attorney and county officials about the legality of strip searches and related implementation steps were protected by attorney-client privilege because their predominant purpose was legal advice, and it ordered the district court to vacate the disclosure order while considering on remand whether any separate waiver occurred and how to protect confidentiality going forward.


In re County of Erie, 473 F.3d 413 (2007)