defendant's motion for partial summary judgment will be granted in part.
Defendant's renewed motion for partial summary judgment concerns 31 reports of investigation ("ROI") which were prepared by the Justice Department for use in litigation against Mr. Demjanjuk. These ROIs were prepared by OSI investigators or historians at the direction of OSI attorneys assigned to this litigation. For identification purposes, these reports have been assigned numbers from 103-33. One document has been released in full (Doc. 106); four documents have been released in part (Docs. 103-05, 131); the remaining twenty-six documents have been withheld in full. The bulk of the reports are accounts of interviews with potential witnesses (Docs. 107-15, 117-127, 129-30, 132-33); two discuss the results of historical research (Docs. 116-128); the remaining five cover miscellaneous topics such as efforts to locate witnesses or copy videotapes of depositions (Docs. 103-06, 131). Defendant's renewed motion is accompanied by a lengthy affidavit which describes the subject matter of each document in general terms, and discusses the exemptions which defendant claims are appropriate. See Affidavit of Neal M. Sher, Director, Office of Special Investigations, attached to Defendant's Renewed Motion for Summary Judgment ("Sher Affidavit"). In addition, defendant has provided a chart which notes the exemptions claimed for each document and cross references the rationales provided in defendant's affidavits.
Defendant argues that all but five of the 31 ROIs are exempt from disclosure in this FOIA suit due to the work product privilege (Docs. 107-30, 132-33). Exemption 5 of FOIA protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5) (1976). The Supreme Court has construed this provision to "exempt [from disclosure] those documents, and only those documents, normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975). The Court has also determined that "Congress had the attorney's work-product privilege specifically in mind when it adopted Exemption 5 . . . ." Id. at 154.
All of these investigative reports were prepared by the Justice Department in anticipation of or preparation for litigation against Mr. Demjanjuk. Thirty of the thirty-one reports were prepared between 1979 and 1980 for use in the pending Demjanjuk denaturalization litigation which began on August 25, 1977. Document No. 106, which has been released in full, was prepared by an INS investigator on September 29, 1976. Defendant's position is simple: these investigative reports are "quintessential" work product. All but two of the reports which defendant asserts are work product are accounts of witness interviews similar to the reports at issue in Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947). These accounts are not verbatim statements; instead, they "reflect the thought processes of OSI, INS and their attorneys with regard to witnesses, evidence, and potential prosecutions." Defendant's Motion for Partial Summary Judgment at 2. Document 116 is a report which was prepared "upon the request of an OSI attorney to visit two private record repositories and conduct research there into the war time operation of two Nazi death camps." See Sher Affidavit at para. 26. The report reflects the OSI historian's research at the record repositories and his conversations with persons there. See id. Document No. 128 is an OSI historian's report of his archival research into captured German war records. See id. at para. 28. This report was prepared at the request of an OSI attorney and contains the opinion of the investigator concerning the possible use of expert evidence. See id.; Declaration of L. Jeffrey Ross attached to Defendant's Motion for Partial Summary Judgment ("Ross Declaration") at para. 10.
Plaintiffs no longer dispute that these reports were prepared under the supervision of an attorney in anticipation of litigation and that parts of them may be protected under the work product exemption.
However, they argue that all factual material contained in these reports must be segregated and released. According to the plaintiffs, only those parts of the ROIs that reveal the attorney's theory of the case or his "mental impressions" are exempt. See Plaintiffs' Memorandum in Opposition to Defendant's Motion for Summary Judgment ("Plaintiffs' Opposition") at 5-9. This proposition is not an accurate statement of the law in the civil discovery context. Rule 26(b)(3) protects against the disclosure of all "documents and tangible things . . . prepared in anticipation of litigation or for trial by or for another party or by or for that party's representative (including his attorney, consultant, surety, indemnitor, insurer or agent)." Absent a showing of "substantial need," these documents are privileged and the factual material contained therein need not be separated from the mental impressions or legal theories for release.
See, e.g., Hickman, 329 U.S. at 508-12; Mervin v. FTC, 192 U.S. App. D.C. 212, 591 F.2d 821, 826 (D.C. Cir. 1978).
Although plaintiffs do not clearly articulate this argument, they appear to be asserting that the scope of the work product privilege under FOIA is different from the scope of this privilege under the Federal Rules and the civil discovery case law. In support of this segregability theory, plaintiffs rely primarily on cases interpreting the scope of the deliberative process privilege in FOIA suits. In EPA v. Mink, 410 U.S. 73, 87-88, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973), for example, the Supreme Court held that
in the absence of a claim that disclosure would jeopardize state secrets, memoranda consisting only of compiled factual material or purely factual material contained in deliberative memoranda and severable from its context would generally be available for discovery by private parties in litigation with the Government.