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Robert A. Zander v. Department of Justice and Federal Bureau of

October 31, 2012


The opinion of the court was delivered by: John D. Bates United States District Judge


Before the Court is a motion for reconsideration of its earlier ruling in this Freedom of Information Act (FOIA) case. Plaintiff Robert A. Zander, who was previously incarcerated in a Bureau of Prisons facility, requested information relating to his incarceration under FOIA. In response to his requests, the Department of Justice and Bureau of Prisons ("defendants") released some records but withheld other material. Zander sued. After the parties filed motions and cross-motions for summary judgment, the Court referred the matter to a Magistrate Judge, who then issued a Report and Recommendation recommending that each side's motion be granted in part and denied in part. In a June 20, 2012 Memorandum Opinion and Order, this Court reviewed the Magistrate Judge's recommendations and, as to the material subject to the motion for reconsideration, accepted them with one minor modification.*fn1 The Court then stayed the Order pending appeal.

Defendants have now filed a Rule 60(b) motion seeking reconsideration of the Court's ruling insofar as it orders disclosure of documents defendants assert are protected by attorney-client privilege, Memorandum Opinion 9-15 (June 20, 2012) [Docket Entry 51]. See Fed. R. Civ. P. 60(b)(1), (6).*fn2 Upon careful review of the parties' new submissions and based on the Court's own research, the Court believes that this is a circumstance where reconsideration as to part of the earlier decision would be appropriate. As explained below, the Court would hence grant, in part, defendants' motion if the D.C. Circuit remanded the case.


Although neither defendants nor Zander address the question of jurisdiction, this Court must do so independently. The Court does not have jurisdiction to provide defendants relief at this time. A day after filing their motion for reconsideration, defendants filed a notice of appeal, which "confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal." United States v. DeFries, 129 F.3d 1293, 1302 (D.C. Cir. 1997) (per curiam) (internal quotation marks omitted). While the pendency of a Rule 60 motion suspends the notice of appeal if that motion is filed within 28 days after entry of judgment, defendants filed their Rule 60 motion on August 15, 2012, 56 days after judgment was entered; accordingly, the notice of appeal in this case was effective when filed. See Fed. R. App. P. 4(a)(4)(B)(i) (pendency of motions listed in Rule 4(a)(4)(A) suspends notice of appeal); Fed. R. App. P. 4(a)(4)(A)(vi) (listing motion "for relief under Rule 60 if the motion is filed no later than 28 days after the judgment is entered."); see also Nat'l Black Police Ass'n v. District of Columbia, 108 F.3d 346, 353 n.3 (D.C. Cir. 1997) ("Rule 60(b) motion . . . only suspends a notice of appeal if it is filed [the number of days designated by Federal Rule of Appellate Procedure 4(a)(4)] after the judgment is entered").

When a timely motion for relief is made and the Court lacks authority to grant it because an appeal has been docketed, the Federal Rules of Civil Procedure permit the Court to "state . . . that it would grant the motion if the court of appeals remands for that purpose." Fed. R. Civ. P. 62.1(a)(3); see also Hoai v. Vo, 935 F.2d 308, 312 (D.C. Cir. 1991) ("District Court may consider the 60(b) motion and, if the District Court indicates that it will grant relief, the appellant may move the appellate court for a remand in order that relief may be granted."). Accordingly, this opinion shall indicate how the Court would rule if the case were remanded by the D.C. Circuit.


Rule 60(b) allows the Court to relieve a party from "a final judgment, order, or proceeding" in a limited set of circumstances, including "mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(1). The Court may also relieve a party for "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(6). "Relief under Rule 60(b)(1) motions is rare; such motions allow district courts to correct only limited types of substantive errors." Hall v. CIA, 437 F.3d 94, 99 (D.C. Cir. 2006). Rule 60(b)(6), too, sets "a very high bar": "courts should grant Rule 60(b)(6) motions only in 'extraordinary circumstances.'" Kramer v. Gates, 481 F.3d 788, 791, 792 (D.C. Cir. 2007) (quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)). Ultimately, however, "the district judge, who is in the best position to discern and assess all the facts, is vested with a large measure of discretion in deciding whether to grant a Rule 60(b) motion." Computer Prof'ls for Soc. Responsibility v. U.S. Secret Serv., 72 F.3d 897, 903 (D.C. Cir. 1996) (quoting Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988)).


At issue are documents related to a civil action Zander filed in connection with his incarceration. They consist of several letters (and accompanying signed forms) from Bureau of Prisons employees seeking legal representation as well as two emails, one sent by an employee to the attorney and another sent by the attorney to several employees. Defendants assert that these communications would be protected by the attorney-client privilege in the civil discovery context, and so should be deemed covered by that privilege under FOIA exemption five. Accordingly, they contend that the D.C. Circuit's decision in Mead Data Central, Inc. v. United States Department of the Air Force, 566 F.2d 242 (D.C. Cir. 1977), which they read as establishing a narrower attorney-client privilege in the FOIA context, does not control. Upon further review, the Court agrees that all but one of the documents are protected from disclosure, although not entirely for the reasons defendants suggest.

FOIA exempts 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). The test under this provision, known as exemption five, is "whether the documents would be routinely or normally disclosed upon a showing of relevance." FTC v. Grolier Inc., 462 U.S. 19, 26 (1983) (internal quotation marks omitted). The D.C. Circuit first interpreted the attorney-client privilege in the FOIA context in Mead Data. See 566 F.2d 242. Considering exemption five's applicability to several documents authored by attorneys and communicated to agency employees, see id. at 249-50, the court recognized "that the attorney-client privilege has a proper role to play in exemption five cases." Id. at 252. After discussing the purposes of the privilege in the civil discovery context, the court stated that "[w]e see no reason why this same protection should not be extended to an agency's communications with its attorneys under exemption five." Id. Nonetheless, it ordered that the agency disclose the documents unless it could make a further showing that the documents were based on confidential information supplied by the employees because "[i]n the federal courts the attorney-client privilege does extend to a confidential communication from an attorney to a client, but only if that communication is based on confidential information provided by the client." Id. at 254 (footnote omitted).

In so holding, Mead Data interpreted the attorney-client privilege in general, rather than importing a new limitation for the FOIA context. As subsequent D.C. Circuit cases have recognized, the Mead Data limitation that the "communication '[must be] based on confidential information provided by the client' . . . applies generally to attorney-client privilege cases whether or not in the context of the FOIA." Brinton v. Dep't of State, 636 F.2d 600, 603-04 (D.C. Cir. 1980) (quoting Mead Data, 566 F.2d at 254); see also In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984) (non-FOIA case citing Mead Data for the proposition that "[c]ommunications from attorney to client are shielded if they rest on confidential information obtained from the client").*fn3 Giving the same meaning to attorney-client privilege in both the discovery and FOIA contexts comports with subsequent holdings that FOIA's plain language "point[s] clearly, unequivocally, to the incorporation of all civil discovery rules into FOIA Exemption (b)(5)." See Martin v. Office of Special Counsel, 819 F.2d 1181, 1185 (D.C. Cir. 1987); see also United States v. Weber Aircraft Corp., 465 U.S. 792, 802 (1984) (refusing "to look beyond the plain statutory language" of exemption five).

Because Mead Data interprets the attorney-client privilege in general, it is consistent with subsequent cases that stress that FOIA may not be used as a supplement to civil discovery-as it could be if the attorney-client privilege were less protective under FOIA. See Weber Aircraft Corp., 465 U.S. at 801 ("[R]espondents' contention that they can obtain through the FOIA material that is normally privileged would create an anomaly in that the FOIA could be used to supplement civil discovery. We have consistently rejected such a construction of the FOIA."); Martin, 819 F.2d at 1186 ("allow[ing] FOIA to be used as a supplement to civil discovery . . . undercut[s] the exemption's apparent function . . . [and] it also runs afoul of the decisions of the Supreme Court"). Indeed, if certain attorney-client communications were subject to disclosure under FOIA, there would be little point in protecting them in civil discovery, for attorneys and clients-knowing that communications are subject to revelation through a FOIA request-would still inhibit their discussions. Cf. Upjohn Co. v. United States, 449 U.S. 383, 393 (1981) ("An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all."). Mead Data, then, is consistent with subsequent D.C. Circuit and Supreme Court decisions, and remains good law that the Court must apply here.

Mead Data's confidential information requirement, however, is relevant to only one of the disputed documents: that limitation applies only to communications from an attorney to a client, not those from a client to an attorney. The attorney-client privilege, at its core, protects communications from a client to an attorney. See Fisher v. United States, 425 U.S. 391, 403 (1976) ("Confidential disclosures by a client to an attorney made in order to obtain legal assistance are privileged. The purpose of the privilege is to encourage clients to make full disclosure to their attorneys." (citations omitted)). The question hence arises "whether privileges are two-way streets[,] [f]or example, as a holder of the attorney-client privilege, may the client bar testimony not only of what the client told the attorney but also of what the attorney told the client." Edward J. Imwinkelried, The New Wigmore: Evidentiary Privileges ยง 6.6.4 (2012). Courts now overwhelmingly agree that the privilege protects some statements by the attorney, although they vary "as to the precise extent of the application of the privilege to the professional's statements." Id.; see also Mead Data, 566 F.2d at 254 n.25 (discussing and rejecting possibility that attorney-client privilege should be "narrowly construed to apply only to communications of the client and not to the advice and opinions provided by his attorney"). In Mead Data, the D.C. Circuit resolved that very question of the privilege's scope, holding that "[t]here is an additional limitation on the attorney-client privilege . . . for those communications that originate from the lawyer rather than from the client. Mead Data stated that when the attorney communicates to the client, the privilege applies only if the communication 'is based on confidential information provided by the ...

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