American Civil Liberties Union v. DOJ, No. 13-7347, 2016 WL 5394738 (S.D.N.Y. Sept. 27, 2016) (Woods, J.)

American Civil Liberties Union v. DOJ, No. 13-7347, 2016 WL 5394738 (S.D.N.Y. Sept. 27, 2016) (Woods, J.)

Re: Request for records concerning policy on giving notice to criminal defendants and others against whom DOJ intends to use evidence derived from warrantless surveillance

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search: "The Court finds that the scope and conduct of DOJ's searches, as described in DOJ's briefs and accompanying affidavits, were adequate[.]" "The affidavits submitted by DOJ on behalf of NSD and EOUSA describe efforts which the Court finds were 'reasonably calculated to discover the requested documents.'"
   
• Waiver: Responding to plaintiff's waiver argument, the court finds that "[t]he working law doctrine, unlike adoption, simply does not present a cognate to the waiver of the attorney-client or work product privileges." "[Plaintiff] has not argued that DOJ expressly adopted any of the documents at issue and thereby waived any privilege applicable to them."
   
• Exemption 5, Attorney Work-Product: "The Court finds that NSD has carried its burden of demonstrating the applicability of work product protection to the documents it has withheld, with the exception of [one document]." The court relates that "[t]he Vaughn submissions submitted on behalf of NSD, which are accorded a presumption of good faith, demonstrate that the documents at issue are necessarily geared to litigation in which DOJ's notice obligations under the FAA will be at issue, and that these documents 'would not have been prepared in substantially similar form but for the prospect of that litigation.'" Specifically, "DOJ’s affidavit states that each of the document[s] is 'part of a decision-making process among various components of the Department of Justice in preparation and anticipation of litigation involving the notice provisions of the FISA.'" The court also rejects plaintiff's argument that a "'specific case' or 'specific claim' [must have] arisen'" and instead finds that the test is "whether 'in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation'; in other words, it asks whether the document was 'necessarily geared' to subsequent litigation." While most of the records at issue satisfy this rest, the court does find that the description of some document[s] "[are] simply too conclusory to make that assessment." "The Court finds it appropriate, at this juncture, to provide DOJ with the opportunity to provide further substantiation of its work product claims with respect to these documents."
   
• Litigation Considerations, "Reasonably Segregable" Requirements: "The Court finds that summary judgment in DOJ's favor on the issue of segregability is appropriate with respect to [one document], but the Court will require DOJ to conduct a segregability analysis with respect to the remaining documents withheld."