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NISHNIC v. UNITED STATES DOJ

May 15, 1987

Edward Nishnic, et al., Plaintiffs,
v.
United States Department of Justice, Defendant


Louis F. Oberdorfer, United States District Judge.


The opinion of the court was delivered by: OBERDORFER

Louis F. Oberdorfer, United States District Judge

 I.

 In this Freedom of Information Act ("FOIA") suit, the plaintiffs seek access to documents relating to the investigation and subsequent denaturalization of John (a/k/a Ivan) Demjanjuk by the Justice Department's Office of Special Investigations ("OSI"). In a Memorandum and Order dated March 16, 1987, defendant's February 13, 1987 motion for partial summary judgment was denied and defendant was ordered to file a renewed motion with an accompanying Vaughn affidavit on or before April 6, 1987. That renewed motion has been filed and has been opposed by the plaintiffs. For the reasons stated below, 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.

 II.

 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. ยง 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. *fn1" 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. *fn2" 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.

 The Court therefore held that such material was not exempt under the deliberate process privilege in a FOIA action. See also Playboy Enterprises, Inc. v. Department of Justice, 219 U.S. App. D.C. 343, 677 F.2d 931 (D.C. Cir. 1982). Plaintiffs urge that this holding should be extended to claims of privilege under the work product doctrine. They cite to Robbins Tire & Rubber Co. v. NLRB, 563 F.2d 724, 735 (5th Cir. 1977), reversed on other grounds, 437 U.S. 214, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978), in which the court held that Congress did not mean to "incorporate Hickman in all its complexity into exemption 5 as a sort of direct legal transplant." Id. at 734. In that case, the court found that in enacting exemption 5 to the FOIA, Congress intended to protect only against disclosures of governmental policy-making processes. For that reason, it held that "purely factual material, such as verbatim witness statements must not fall within [exemption 5], whether the agency urges upon us the executive or the work-product privilege." Id. at 735; see also Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1138 (4th Cir. 1977). *fn3"

  There are two reasons why Robbins Tire & Rubber Co. does not apply to this case. First, it speaks only of verbatim witness statements. Defendant has repeatedly emphasized that the reports in this case are not verbatim witness statements. Instead, these reports discuss the information the investigators found relevant and evaluate the potential usefulness of the witnesses in the then pending Demjanjuk case. See Ross Declaration at para. 10; Sher Affidavit at para. 5(b). Second, to the extent that Robbins Tire & Rubber Co. indicated that the factual/deliberative distinction of EPA v. Mink, 410 U.S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973), should be applied to material which is protected by the work product privilege, it has not been adopted by the Court of Appeals in this Circuit. In Mervin v. FTC, 192 U.S. App. D.C. 212, 591 F.2d 821 (D.C. Cir. 1978), the plaintiff sought disclosure of the factual portions of agency memoranda regarding his dismissal. The Court stated that "we agree with the District Court and with the government that it would not be appropriate to sever factual material out of the memoranda at issue here." Id. at 825. The Court noted that "an important part of what is protected by the privilege for attorney work-product is the attorney's consideration and weighing of the facts. Because of this, even factual material segregated from attorney work-product is likely to reveal some of the attorney's tactics and stategic thoughts." Id. at 826. And it explicitly declined to apply precedents involving the deliberative process privilege, noting that "the likelihood that factual material will be segregable is smaller in cases dealing with the attorney work-product than in cases dealing with the governmental deliberative process." Id. at 827. See also Exxon Corp. v. Federal Trade Commission, 213 U.S. App. D.C. 356, 663 F.2d 120, 129 (D.C. Cir. 1980); Bristol-Myers Co. v. FTC, 194 U.S. App. D.C. 99, 598 F.2d 18, 29 (D.C. Cir. 1978).

 While the Supreme Court has never specifically considered whether factual material contained within documents which are covered by the work product privilege must be produced in a FOIA suit, see NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 219, 57 L. Ed. 2d 159, 98 S. Ct. 2311 n.4 (1978), the Court's most recent FOIA opinions suggest that it is unlikely to interpret the scope of the privilege differently in the FOIA context than it has in the civil discovery context. As noted above, the Court held, in NLRB v. Sears, Roebuck & Co., 421 U.S. at 149, that "Exemption 5 [exempts] those documents, and only those documents, normally privileged in the civil discovery context." More recently, in FTC v. Grolier, 462 U.S. 19, 76 L. Ed. 2d 387, 103 S. Ct. 2209 (1983), the Court held that "'Exemption 5 incorporates the privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context.'" Id. at 27 quoting Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184, 44 L. Ed. 2d 57, 95 S. Ct. 1491 (1975) (emphasis in original). In Grolier, the Court held that an attorney's work product is exempt from mandatory disclosure under exemption 5 without regard to the status of the litigation for which it was prepared. In reaching this holding, the Court considered whether this material would normally be available in civil discovery. More recently, in United States v. Weber Aircraft Corp., 465 U.S. 792, 79 L. Ed. 2d 814, 104 S. Ct. 1488 (1984), the Court reiterated its holding in Grolier that "Exemption 5 simply incorporates civil discovery ...


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