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AG OF THE UNITED STATES v. COVINGTON & BURLING

April 20, 1977

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Plaintiff,
v.
COVINGTON & BURLING, Defendant



The opinion of the court was delivered by: SIRICA

 JOHN J. SIRICA / United States District Judge

 This is an action under the Foreign Agents Registration Act, 22 U.S.C. §§ 611-21 (1970). In it, the Registration Unit of the Justice Department, which is the authorized delegate of the Attorney General under the Act, has sought to obtain access to certain documents held by Covington & Burling ("C&B"), a law firm.

 The Court has issued one previous opinion in this case, Attorney General v. Covington & Burling, 411 F. Supp. 371 (D.D.C. 1976). There it held that implicit in the Act is an attorney-client privilege which allows an attorney to withhold documents sought by the Registration Unit under 22 U.S.C. § 615. The Court accordingly ordered C&B to submit the documents withheld for judicial review to determine if the privilege was properly claimed for each one.

 C&B subsequently gave to the Court the following:

 (1) under seal, the documents withheld from the government on the ground of attorney-client privilege;

 (2) under seal, a justification for claiming the privilege with respect to each document;

 (3) a memorandum stating specifically what C&B's view of the scope of the privilege is.

 After studying the memorandum and the individual justifications, the Court became concerned that C&B might have been claiming more than it was entitled to claim under the privilege as traditionally defined. It therefore asked the parties to submit additional memoranda on this point. This they have now done.

 I

 In its memorandum, the Registration Unit has suggested a course of action which is substantially different from that envisioned by the Court and which therefore must be addressed preliminarily. In order to take advantage of the unit's expertise under the Foreign Agents Registration Act, and in order to save the Court the time needed to review each individual document and determine whether attorney-client privilege applies in each case, the unit advised the Court simply to turn the documents directly over to it and subject those persons who would inspect the documents to a protective order forbidding further disclosure. Then presumably, if these persons should find certain information which they feel should, or must, under the Act, be disclosed further, it would ask the Court for a specific determination of whether and to what extent the information might be privileged.

 The Court would very much like to be able to do this. But for two reasons, it has found that proceeding in this manner would not be wise.

 First, as C&B has argued, there is some question whether a protective order such as the Registration Unit has suggested would alleviate the fears of a country, like the Republic of Guinea, that is unfamiliar with our legal processes.

 Second, the Registration Unit may be statutorily obligated to disclose all documents and information it has obtained under the Act to others upon request; if that is so, then a protective order would obviously be inappropriate. As the Foreign Agents Registration Act is now written, it is possible that Congress intended all documents, once submitted to the unit under 22 U.S.C. § 615, regardless of any privilege that might have been claimed, to be subject to disclosure under the Freedom of Information Act, 5 U.S.C. § 552 (1970), as amended, (Supp. V, 1975); such documents ...


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