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Convertino v. United States Dep't of Justice

December 10, 2009


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


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 plaintiff's motion will be DENIED. The Court's reasoning is set forth below.

Upon consideration of Jonathan Tukel's Motion and Memorandum of Law to Intervene in Response to Plaintiff's Motion to Compel Production [130], the plaintiff's opposition [132] thereto, Jonathan Tukel's reply [136], the applicable law, and the entire record herein, the Court concludes that Jonathan Tukel's motion will be GRANTED.


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, 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 . . . ." (See Pl.'s Reply to Def.'s Opp'n to Pl.'s Mot. to Compel at 1.)


Plaintiff's motion to compel discovery is DENIED because the 736 documents requested are protected by various privileges. 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. 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.) Again, the Complaint alleges that defendant violated plaintiff's rights under the Privacy Act by disclosing information to the press. (Compl. ¶¶ 91-143). "[T]o establish a claim under the Privacy Act, a party 'must prove that: (1) the agency 'disclosed' information; (2) the information 'disclosed' is a 'record' contained within a 'system of records'; (3) an adverse impact resulted from the disclosure; and (4) the agency's disclosure was willful or intentional.'" See Alexander v. FBI, 193 F.R.D. 1, 6 (D.D.C. 2000) (Lamberth, J.) (quoting Barry v. United States Dep't of Justice, 63 F. Supp. 2d 25, 27 (D.D.C. 1999)); see also Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (requiring the Privacy Act violation to be "so patently egregious and unlawful that anyone undertaking the conduct should have known it was unlawful"). To prove his case, plaintiff must show that someone leaked information to the press and that they did so willfully or intentionally. Documents that concern plaintiff may be useful to establish the elements of the claim, including the intent of the leaker. (Pl.'s Mot. to Compel at 5-6.) All of the documents contained within the privilege log concern plaintiff in one fashion or another, making them relevant to the cause of action. (See Def.'s Opp'n to Pl.'s Mot. to Compel Ex. 1.)

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." The defendant has classified 697 documents as protected by this privilege. (Def.'s Opp'n to Pl.'s Mot. to Compel at 6.)

A. Predecisional and Deliberative

The documents requested are both predecisional and deliberative. (Def.'s Opp'n to Pl.'s Mot. to Compel at 6.) "[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, the plaintiff does not effectively dispel the contention 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.) The documents fall into 10 various groups including; (1) notes and summaries by the OIG investigator, (2) other documents related to the OIG investigation, (3) documents related to inquires by Congress, (4) documents and correspondence to/from non-OIG/OPR government officials regarding those investigations, (5) documents related to plaintiff's September 9, 2003 testimony before the Senate Finance Committee, (6) documents related to the Public Integrity investigation/criminal charges against plaintiff, (7) documents related to personnel actions regarding plaintiff, (8) documents related to the OPR investigation, (9) documents related to multiple or unspecified investigations, and (10) documents related to Koubriti litigation and file review. (Pl.'s Mot. to Compel at 16-24.) Although the documents fall under the deliberative process privilege plaintiff argues that they are not protected because (a) the documents are directed at the defendant's intent, (b) the documents are discoverable because the government participated in misconduct, and/or (c) plaintiff's need for the documents is greater than defendant's need to prevent the chilling effect. (Id.)

B. Exceptions

The balancing test, discussed later on, and typically applied to the privilege, is not needed when one of two exceptions apply; (1) the government's intent is squarely at issue or (2) there is any evidence of governmental misconduct. See generally Alexander, 193 F.R.D. at 10 (explaining the deliberative process privilege). Plaintiff essentially raises two separate concerns in his motion to compel and his reply and therefore reasons that the deliberative process privilege should not apply. The first concern, which plaintiff believes entitles him to the disclosure of the government documents, is the investigation into whether the defendant actually acted willfully or intentionally in the leak of private information about plaintiff, in violation of the Privacy Act. (Pl.'s Reply to Def.'s Opp'n to Pl.'s Mot. to Compel at 1-5.) The second concern, which plaintiff also believes removes the deliberate process privilege, is whether defendant retaliated against plaintiff by attempting to cover-up the leaker(s). (Id. at 6.) ...

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