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November 16, 2001


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge


This matter comes before the Court on Defendant's Motion for Reconsideration of the Magistrate Judge's Decision on Defendant's Motion For a Protective Order [791]. Specifically, the defendant in this case, the United States Department of Commerce ("DOC"), seeks review of Magistrate Judge Facciola's determinations that: (1) certain documents prepared by DOC officials are discoverable by the plaintiff, Judicial Watch, and (2) that a protective order prohibiting all inquiries by the plaintiff into the second FOIA search is not warranted. After a thorough review of the parties' memoranda, the extensive record in this case, and the applicable law, the Court concludes that the defendant's motion should be DENIED.


What began as an ordinary Freedom of Information Act request has snowballed into a seven-year court battle in which both the parties and the Court are still looking for the light at the end of the tunnel. As observed in an earlier opinion by this Court, Judicial Watch first sought information from the DOC on September 12, 1994. The DOC failed to provide Judicial Watch with any documents, however, until after the Court ordered the costs of production waived and the relevant documents produced. Unsatisfied with this initial production of documents, Judicial Watch sought an order from this Court directing the DOC to release more documents. The DOC, on the other hand, attempted to dispose of the case by moving for summary judgment. On February 1, 1996, the Court not only denied the DOC's motion for summary judgment, but also ordered discovery on the issue of the adequacy of the DOC's search for documents.

After minimal discovery on the adequacy of the search, it became clear that the DOC had improperly destroyed and removed many responsive documents from its custody. In an unprecedented move, the DOC filed a motion for summary judgment against itself The Court subsequently denied this motion, however, because it did not adequately address Judicial Watch's claims regarding documents that had been destroyed or removed from the DOC's custody. Judicial Watch v. United States Dep't of Commerce, 34 F. Supp.2d 28, 42 (D.D.C. 1998). At the same time, the Court ordered the DOC to conduct a second search for the requested documents and permitted Judicial Watch further discovery of information related to the destruction or removal of documents after the FOIA request was filed. Id.

On July 11, 2000, while continuing its discovery into the DOC's possible frustration of its FOIA request, Judicial Watch filed a motion for leave to depose persons identified in the declaration of Sonya Stewart, Stewart, the former chief of FOIA operations at the DOC, asserted in her declaration that the DOC and other government officials participated in a scheme to avoid the production of documents in both the first and second FOIA searches. The declaration specifically alleged that Judith Means, and other attorneys working for the Office of General Counsel ("OGC"), knowingly withheld responsive documents from Judicial Watch and worked to obstruct the organization's FOIA request. In a December 5, 2000 memorandum and order, this Court granted Judicial Watch leave to depose 12 of the 25 individuals named in its motion. The Court explicitly found that sufficient evidence had been presented to suggest that those 12 individuals possessed information relevant to the alleged misconduct. Among the 12 individuals the Court allowed Judicial Watch to depose were Judith Means, an attorney for the DOC, and Brenda Dolan, an employee of the DOC who worked under Stewart handling FOIA requests.

On January 24, 2001, Judicial Watch deposed Brenda Dolan in the presence of Judge Facciola. Prior to the deposition, Dolan filed a declaration with the court disputing the facts asserted in Stewart's declaration. Moreover, during her deposition, Dolan testified that she possessed two separate drafts of the declaration she ultimately submitted to the court, in addition to notes that she had made in preparation of the final version. Whether these documents are discoverable is the primary issue for the Court to resolve in this motion.

As Judge Facciola explained in his opinion denying the defendant's motion for a protective order, the first draft of Dolan's declaration was prepared for Ms. Dolan by the OGC and is labeled "Doc #2." According to Dolan, Judith Means and Sarah Coe, another OGC official, provided her with the document. Because of the alleged misconduct by the DOC in this case, and the OGC in particular, Dolan believed that it was a conflict of interest for DOC attorneys to draft her declaration. Even though Marina Braswell, the Assistant United States Attorney assigned to defend the DOC in this case, told Dolan that there was no conflict, she still was not comfortable using the declaration that Means and Coe had given her. Thus, after conferring with Braswell, Dolan decided to prepare a second draft of the declaration herself. This draft of the declaration, which is close to the final version, is labeled "Doc #3." While Dolan wrote this draft herself, it may nevertheless contain portions of the one originally prepared by the OGC. The third document, labeled "Doc #5," consists of two pages of handwritten notes Dolan made while attempting to draft her own declaration. In addition to these documents, Dolan's deposition revealed that she possessed a fax copy coversheet and copies of a few pages of a log that the DOC kept in the course of the court-ordered second FOIA search. These materials have been labeled "Doc #6."

During the Dolan deposition, Judicial Watch requested that all four of these documents be disclosed. The DOC objected to the production of the documents, however, on the grounds that Docs #2, #3, and #5 are protected by the work product privilege and that Doc #6 is outside the scope of discovery allowed in this case. The DOC further requested an order from Judge Facciola prohibiting Judicial Watch from making any inquiries into the second FOIA search.

Judge Facciola first addressed the DOC's claims of work product privilege. In rejecting the DOC's assertion of the privilege, Judge Facciola appears to have found two independent reasons why Does #2, #3, and #5 are not protected by the doctrine. First, Judge Facciola determined that the documents do not fall within the ambit of the work product privilege because they were not prepared for trial or in anticipation of litigation. He found that in the instant case, the litigation is ongoing and not anticipated, and that in the end there will not be a trial. Thus, according to Judge Facciola, the documents at issue were not created in preparation of trial or in anticipation of litigation. Instead, these documents were prepared in response to Stewart's assertions that DOC officials had improperly removed or even destroyed documents that should have been provided to Judicial Watch. Judge Facciola determined that such information is of the very sort Judicial Watch is entitled to explore pursuant to this Court's orders authorizing discovery. Judge Facciola then concluded that, [i]f the declarations drafted by DOC officials are to be deemed work product during the inquest Judicial Watch is permitted to conduct, then there is shielded from inquiry documents which contain the very recollections by those officials of their role and work in the FOIA search. If such documents are privileged, then the inquiry Judge Lamberth ordered is frustrated in the most obvious way. Judicial Watch v. United States Dep't of Commerce, 201 F.R.D. 265, 268 (D.D.C. 2001). In support of this conclusion, Judge Facciola noted that he had examined the relevant documents and did not find anything contained therein that would reveal a lawyer's mental processes. lie also observed that, with respect to the draft that Dolan prepared herself, it would be counter intuitive to protect as an attorney work product a declaration prepared by a lay person because of that person's dissatisfaction with the lawyer's work product.

The second reason why Judge Facciola determined that Docs #2, #3, and #5 are not protected by the work product privilege, and are thus discoverable, is because Judicial Watch has made a sufficient showing of need for the materials. Judge Facciola recognized that, unlike the attorney client privilege, the work product privilege is not absolute. Rather, the party seeking access to the purportedly privileged documents can, upon a showing of substantial need if the materials would reveal non-privileged facts or extraordinary justification if the materials would reveal the mental processes of counsel, obtain access to the information. In this case, Judge Facciola determined that Judicial Watch had "easily" made that showing. In reaching this conclusion, he found that:

[e]xploration of what the OGC and, in particular, Means, thought was an appropriate response to Stewart's claims of Mean's misbehavior is the very exploration Judge Lamberth insisted be conducted. The necessity of completing that discovery easily satisfies the obligation of establishing the extraordinary justification which forces the work product privilege to yield. Moreover, if, as seems certain, a lawyer from the OGC, or Means herself, were to be asked what OGC put in the draft the OGC prepared for Dolan, the DOC would again claim a work product privilege. There is therefore, no practical way to find out that information in any other way and certainly no substantial equivalent to it.

Id. at 270. Judge Facciola thus explicitly found that, even if Docs #2, #3, and #5 revealed the mental processes of the OGC attorneys in this particular matter, Judicial Watch was still entitled to the documents.

Judge Facciola then addressed the issues of whether Doc #6 is discoverable and what, if any, discovery should take place concerning the second FOIA search. With respect to the latter issue, Judge Facciola concluded that while this Court has prohibited general inquiries into the particulars of the second search, Judicial Watch should be permitted to ask "how a given aspect of the second search differed from the first" because it "may cast . . . light on the integrity of the first" search. Id. at 271. Consistent with this finding, Judge Facciola declined to issue a protective order prohibiting Judicial Watch from inquiring into the second FOIA search. As to the relevance of Doc #6, Judge Facciola noted that he had already ruled during the Dolan deposition that the material was relevant to the instant matter and therefore should be produced. He concluded that the ...

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