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Convertino v. United States Dep't of Justice

November 12, 2009

RICHARD G. CONVERTINO, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL., DEFENDANT.



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

MEMORANDUM OPINION

This matter comes before the Court on the plaintiff's Motion [116] to Compel Production from defendant. Upon consideration of the plaintiff's motion, the defendant's opposition [129] thereto, the plaintiff's reply [145] brief, the defendant's surreply [149], the applicable law, and the entire record herein, the Court concludes that the some documents need to be reviewed in camera before the Court can make a decision regarding the entire motion to compel.

BACKGROUND

Plaintiff, Richard G. Convertino filed the Complaint against the United States Department of Justice ("DOJ") on February 13, 2004, raising two counts. (Compl. ¶¶ 24-143.) One count has been dismissed leaving only whether defendant willfully and intentionally disclosed information to a reporter for the Detroit Free Press in violation of the Privacy Act, 5 U.S.C. § 552a. (Def.'s Opp'n to Pl.'s Mot. to Compel at 3-4.) The disclosed information most likely consisted of one or more documents from an investigation into plaintiff's conduct by defendant's Office of Professional Responsibility ("OPR"). (Compl. ¶¶ 109-113.)

The OPR began an investigation in November of 2003 after the United States Attorney's Office for the Eastern District of Michigan referred allegations of prosecutorial misconduct against Assistant United States Attorney Richard Convertino-former lead trial counsel in the case of United States v. Koubriti. (Def.'s Opp'n to Pl.'s Mot. to Compel Ex. 12 at 1.) The OPR crafted a series of letters stating what issues the OPR would investigate and which it would not. (Id.) A limited number of people had access to these private letters. On January 17, 2004 an article addressing the investigation by OPR was written by David Ashenfelter and published in the Detroit Free Press. (Id.) Following the leak, the Office of the Inspector General ("OIG") began an investigation to determine who provided the information to the press, ultimately concluding that there was insufficient evidence to prove, by a preponderance of the evidence, who the leaker was. (Id. Ex. 12 at 16.)

Plaintiff filed this motion to compel production of 736 various documents that plaintiff believes are responsive to his discovery requests. (Id. at 1, Exs. 1 and 2.) Defendant has categorized these documents as privileged, either by the deliberative process privilege, the work product doctrine, or the attorney-client privilege and thus claims the documents are not discoverable. (Id. at 3-27.) Plaintiff has requested that the Court review the documents in camera "to the extent that the applicability of the deliberative process privilege is not clear...." (Pl.'s Reply to Def.'s Opp'n to Pl.'s Mot. to Compel at 1.)

DISCUSSION

Fed. R. Civ. P. 26(b)(1) requires a party to disclose any material the other party requests that is relevant to plaintiff's claim or defendant's defense, if it is not protected by a privilege. See Fed. R. Civ. P. 26(b)(1) ("... parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party."). Neither party disputes that the 736 documents requested are relevant to the Complaint. (Pl.'s Mot. to Compel at 4-6.)

However, many of the 736 documents requested are protected by various privileges. Finding the documents are relevant, the Court must then decide if the 697 documents, classified by defendant as protected by the deliberative process privilege, are in fact protected. (Def.'s Opp'n to Pl.'s Mot. to Compel at 6.)

I. Deliberative Process Privilege

The deliberative process privilege acts to shield documents from discovery requests. It protects "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)). The purpose of the privilege is to protect the decision-making process of the government by creating an environment where people can freely express their opinions and debate alternative approaches before a decision is made. See id. To qualify for the privilege the document must be both "predecisional" and "deliberative." See Id. "[A] document is deliberative if it 'reflects the give-and --take of the consultative process,'... [a document is predicisional if it] 'reflect[s] the agency "give-and-take" leading up to a decision that is characteristic of the deliberative process.'" See Access Reports v. Dep't of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991) (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)).

Although there are too many documents to go into detail on how each satisfies the privilege requirements, neither party effectively disputes that the documents are both predicisional and deliberative. (Def.'s Opp'n to Pl.'s Mot. to Compel at 6; cf. Pl.'s Mot. to Compel at 10-11.) Further, defendant has attached "declarations from officials in the relevant DOJ components formally asserting the deliberative process privilege over the withheld documents." (Def.'s Opp'n to Pl.'s Mot. to Compel at 2.)

However, there are certain exceptions that apply to the deliberative process privilege, making the documents discoverable. "To the extent that the applicability of the deliberative process privilege is not clear," plaintiff has requested "that the Court review the documents in camera to determine whether they are privileged." (Pl.'s Reply to Def.'s Opp'n to Pl.'s Mot. to Compel at 19-20.) Finding that the documents are relevant as well as deliberative and ...


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