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Judicial Watch, Inc. v. U.S. Department of State

United States District Court, District of Columbia

June 12, 2019



          Royce C. Lamberth United States District Judge

         The government continues to assert attorney-client or work-product privilege over twelve documents requested by Judicial Watch. Six concern a 2012 Freedom of Information Act (FOIA) request from government watchdog Citizens for Responsibility and Ethics in Washington (CREW) concerning government officials' personal email use. Another six address Judicial Watch's FOIA request, and specifically the State Department's pre-February 2, 2015 awareness of missing and unsearched records from former Secretary Hillary Clinton and her staff. (On February 2, 2015, months after Clinton quietly turned over 55, 000 pages of her missing emails, and after months of settlement attempts, the Department filed a status report admitting "additional searches for documents . . . must be conducted," ECF No. 11.) Judicial Watch argues the government fails to demonstrate these documents' protectability, and moves to compel their production. After reviewing the documents in camera, the Court will grant-in-part and deny-in-part Judicial Watch's motion.

         I. Legal Standards

         The attorney-client privilege protects "confidential communication[s] between attorney and client... made for the purpose of obtaining or providing legal advice." Fed. Trade Comm'n v. Boehringer Ingelheim Pham., Inc., 892 F.3d 1264, 1267 (D.C. Cir. 2018) (Kavanaugh, J.). In other words, it covers both "communications in which an attorney gives legal advice," and "communications in which the client informs the attorney of facts that the attorney needs to understand the problem." Id. And it applies with equal force to government counsel, who remain "fully empowered to engage in privileged communications," even though the "client" is an entire government agency. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758 (D.C. Cir. 2014) (Kavanaugh, J.) (internal quotation marks omitted) (quoting 1 Restatement (Third) of the Law Governing Lawyers § 72, cmt. C, at 551). That said, an organization "cannot be permitted to insulate its files from discovery simply by sending a 'cc' to in-house counsel," United States ex rel. Barko v. Halliburton Co., 74 F.Supp.3d 183, 189 n. 13 (D.D.C. 2014) (quoting Minebea Co. v. Papst, 228 F.R.D. 13, 21 (D.D.C. 2005)); the communication must somehow engage the attorney in resolving a legal issue.

         The work-product privilege shields "documents and tangible things" as long as they "[we]re prepared in anticipation of litigation." Fed.R.Civ.P. 26(b)(3)(A). Yet for "government lawyers act[ing] ... as legal advisors protecting their agency clients from the possibility of future litigation," that limitation does not do much work. In re Sealed Case, 146 F.3d 881, 885 (D.C. Cir. 1998). Although "work product doctrine does not extend to every written document generated by an attorney" for the federal government, Senate of Puerto Rico v. Dep't of Justice, 823 F.2d 574, 586 (D.C. Cir. 1987), a "specific claim" of litigation need not precipitate the document, either. In re Sealed Case, 146 F.3d at 885-87. Indeed, this Circuit extends largely inviolate protection to attorney impressions, conclusions, opinions, and theories "integral" for "legal analyses" and strategic "discussions" alike.[1] Martin v. Dep't of Justice, 488 F.3d 446, 455 (D.C. Cir. 2007); see Fed. R. Civ. P. 26(b)(3)(B); Judicial Watch, Inc. v. Dep't of Justice, 432 F.3d 366, 369 (D.C. Cir. 2005). That renders virtually undiscoverable everything from prophylactic "memoranda prepared by agency attorneys that analyze[] the legal ramifications of a new" government procedure, In re Sealed Case, 146 F.3d at 885, to "documents" giving general "tips and advice for litigating" particular kinds of "cases," id., and even documents "used for ordinary business purposes" in a particularly litigious field, United States v. Deloitte LLP, 610 F.3d 129, 136-38 (D.C. Cir. 2010). See Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307 (D.C. Cir. 1997). The government attorney need only "belie[ve] that litigation [i]s a real possibility, and that belief must [be] objectively reasonable." In re Sealed Case, 146 F.3d at 884. And moreover, "document[s] prepared as work product for one lawsuit will retain [their] protected status even in subsequent, unrelated litigation." F.T.C. v. Boehringer Ingelheim Pharm., Inc., 778 F.3d 142, 149 (D.C. Cir. 2015).

         The lone exception to this otherwise expansive privilege arises when the work-product contains discoverable facts (distinct from legal opinions) and the party seeking discovery demonstrates both a "substantial need" for the factual information and an inability to collect the information or its "substantial equivalent" without "undue hardship." Fed.R.Civ.P. 26(b)(3); see Office of Thrift Supervision, 124 F.3d at 1307. This safety valve "balance[s] the needs of the adversary system to promote an attorney's preparation against society's general interest in revealing all facts relevant to the resolution of a dispute." In re Sealed Case, 856 F.2d 268, 273 (D.C. Cir. 1988).

         II. Analysis

         Assessing the government's attorney-client privilege claims follows neatly from the legal standard. Based on the Court's in camera review, the Court affirms the government's withholdings in documents 21 (in part), 76, 896, 897, 899, 900, 901 (in part), 902, and 2475; but rejects the government's withholding in the duplicate documents numbered 1326, 1328, and 3636.

         Yet the government's work-product privilege claims are more complicated. As this Court has already recognized, this case falls within the (thankfully) rare subset of FOIA cases where "the government's response ... smacks of outrageous misconduct," and "merit[s] additional discovery into the government's motives." 344 F.Supp.3d 77, 80. So as this case "expanded to question the motives behind Clinton's private email use while Secretary, and behind the government's conduct in this litigation," the Court authorized discovery on three topics: "(1) whether Clinton intentionally attempted to evade FOIA by using a private email while Secretary of State; (2) whether State's efforts to settle this case in late 2014 and early 2015 amounted to bad faith; and (3) whether State adequately searched for records responsive to Judicial Watch's FOIA request." Mem. & Order 1, ECF No. 65.

         Within those bounds, this motion presents the "difficult and sensitive" task of drawing "a precise line between fact and opinion work product." In re Sealed Case, 129 F.3d 637, 638 (D.C. Cir. 1997) (Tatel, J., dissenting from denial of rehearing in banc); see also Office of Thrift Supervision, 124 F.3d at 1308. On one hand, the government may properly withhold any opinion work-product: the documents were undoubtedly prepared in anticipation of litigation since government attorneys could reasonably anticipate litigation resulting from a FOIA request by either CREW or Judicial Watch.[2] Yet the government cannot withhold any fact work-product: for each document, Judicial Watch shows a substantial need for the otherwise-unobtainable information.

         But this discovery's extraordinary subject matter blurs the distinction between discoverable facts and privileged opinions. Consider a hypothetical State Department attorney's pre-February 2015 opinion about the adequacy of the FOIA search in this case. Ordinarily, that opinion would fall within the "virtually undiscoverable" realm of opinion work-product. Office of Thrift Supervision, 124 F.3d at 1307. But this case "hinge[s] on what specific State employees knew and when they knew it." Mem. & Order 5. In other words, this case contains factual . questions answerable only through State officials' (including attorneys) contemporaneous thoughts, beliefs, and conclusions. So-in this specific context-the content of that hypothetical attorney's opinion is itself a material fact. And since it's substantially relevant to a key question in this case and unobtainable from any other source, Judicial Watch can discover it. So too for a department attorney's advice about settlement or about Clinton's use of a personal email for official business. Indeed, that's why the Court already took the "exceptional step" of permitting Judicial Watch to depose a State Department attorney, and further allowed Judicial Watch to request "all records-including internal communications-concerning this FOIA request" and "all records relating to the Department's practices, policies, and actions accounting for Office of the Secretary records, including the emails of Hillary Clinton, Cheryl Mills, Huma Abedin, Jacob Sullivan, and other staff." Mem. & Order 8, 16 (emphasis added).

         So the Court holds that any contemporaneous documents shedding light on the three narrow discovery topics-even documents evincing attorney impressions, conclusions, opinions, and theories-constitute fact work-product. This holding heeds the D.C. Circuit's instruction that "not every item which may reveal some inkling of a lawyer's mental impressions ... is protected as opinion"-only impressions "creat[ing] a real, nonspeculative danger of [prejudicially] revealing the lawyer's thoughts." Boehringer Ingelheim, 778 F.3d at 151-52 (internal quotation marks omitted) (quoting In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1015 (1st Cir. 1988)). Here, the lack of any possible prejudice supports construing these documents as fact work-product: "the concerns for the integrity of the trial adversarial process are simply not present in the same way as" in, for instance, the situation where "one lawyer seeks the notes of opposing counsel taken during witness interviews." Judicial Watch, Inc. v. U.S. Dep't of Commerce, 201 F.R.D. 265, 268 (D.D.C. 2001). Put differently, the law permits deeming the documents fact work-product since doing so will not affect State's position in this litigation. Additionally, construing these documents as fact work-product comports with the purpose of the work-product privilege: since "there will be no trial in this case and the parties are not conducting discovery to prepare their case for trial," Judicial Watch, Inc., 201 F.R.D. at 268, society's general interest in revealing relevant facts outweighs any need to protect an attorney's private thoughts..

         Accordingly, the Court overrides the government's assertions of work-product privilege in documents 21 (in part), 187 and 206 (duplicates), 901 (in part), and 1040.

         A. ...

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