Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 21-5113, 2022 WL 3569241 (D.C. Cir. Aug. 19, 2022) (Srinivasan, C.J.) Re: Request for records Attorney General reviewed in advance of his public announcement concerning Special Counsel’s report o

Am. Oversight v. DOJ, No. 21-1266, 2022 WL 3363792 (2d Cir. Aug. 16, 2022) (Raggi, J.)

Re:  Request for records memorializing interviews conducted by federal prosecutors and law enforcement agents in course of criminal investigation into possible campaign finance law violations, and subsequent obstruction of justice, by persons associated with presidential campaign

Disposition:  Affirming district court’s grant of government’s motion for summary judgment

• Exemption 5, Attorney Work-Product:  “Upon de novo review, [the Court of Appeals for the Second Circuit] conclude[s], as the district court did, that the 27 documents here at issue constitute attorney work product shielded from civil discovery by Fed. R. Civ. P. 26 and, thus, from disclosure by FOIA Exemption 5.”  “That the materials constitute work product under Rule 26 is evident from [the government’s] declaration, which states that the documents at issue were all ‘prepared in anticipation of litigation,’ specifically, the potential prosecution of campaign-finance-law violations or of obstruction of justice revealed by the Investigation.”  “[The government] further states that the materials at issue were prepared by law enforcement agents who were memorializing interviews conducted by federal prosecutors or by agents working under the substantial direction of prosecutors.”  The court then notes the requester’s argument that “it is ‘not even clear’ that the documents at issue qualify as ‘work product’ because defendants knew or should reasonably have recognized that these documents ‘would necessarily [have] be[en] turned over in any prosecution resulting from the investigation.’”  In response, the court observes that “attorneys prepare all sorts of documents that they know or reasonably anticipate will be turned over to adversaries in the course of litigation:  motion papers, interrogatories, briefs, etc.”  “Nevertheless, unless and until such documents are in fact turned over, they are recognized as protected work product.”  Additionally, the court finds that “[t]he documents here at issue would not ordinarily be discoverable under the civil rules, particularly Rule 26, and [the requester] does not contend otherwise.”  “It may be that, once prosecutors disclose attorney work product materials in a criminal proceeding, they can no longer claim work-product protection for purposes of Exemption 5.”  “But that would result from waiver of the protection, not from the fact that the materials were never protected work product to begin with.”
   
• Waiver and Discretionary Disclosure, Waiver:  “[The Court of Appeals for the Second Circuit] conclude[s] that defendants did not waive work-product protection with respect to the documents at issue.”  The court relates that “[t]he gravamen of [the requester’s] argument on appeal is that defendants waived any work-product protection for documents memorializing interviews with the targets or subjects of the Investigation because (1) such subjects or targets were litigation adversaries (2) to whom the contents of the documents at issue had necessarily been disclosed in the course of their interviews.”  “[The court] need not here decide whether [the requester’s] first point is correct because, even if [the court] were to accept its characterization of targets and subjects as litigation adversaries arguendo, its waiver argument fails.”  “[The requester] reasons that, by interviewing targets and subjects in this case, defendants necessarily disclosed to those litigation adversaries any and all matters discussed during the interview and, thereby, waived work-product protection for documents subsequently created to memorialize those interviews.”  “The reasoning is flawed in several respects.”  First, the court looks to Fed. R. Civ. P. 26(b)(3)(A) and finds that “[t]he Rule . . . appears to contemplate the existence of a document before work-product privilege can attach to it, and, therefore, before that protection is waived.”  “But even assuming that, in some circumstance, waiver might precede work-product documentation, [the requester’s] argument that this is such a case suffers other, more serious flaws.”  “Second, while any interviewed targets or subjects may have heard what was said during their interviews, what was not disclosed to them was how defendants would memorialize the interviews in documents subsequently prepared in anticipation of litigation.”  “Indeed, in deciding how to memorialize an interview – including an interview with a litigation adversary – an attorney (or his agent) necessarily makes choices about structure, content, wording, emphasis, etc., that can reveal his thinking about the interview, his theories of investigation, and areas for possible further inquiry.”  “That work product, not revealed to the interviewed litigation adversary, is shielded.”   “In seeking to avoid that conclusion, [the requester] emphasizes that, in preparing 302s, FBI agents are instructed to recount only what a witness said and not the interviewer’s opinions or contextual comments.”  “But even following such instructions, an agent must make myriad choices – about what parts of the interview to recount in detail and what parts to summarize; when to quote responses and when to paraphrase them; whether to track the order of the interview, the chronology of the events discussed, or the topics covered – that can reveal impressions, opinions, and theories without expressly stating them.”  Third, “defendants thereafter never disclosed the protected documents or their contents to anyone.”  Fourth, “[the requester] has adduced no evidence showing a sufficiently specific match between the questions asked at the interview and how any such questions would have been recorded in protected documents.”  “Nor would the possibility of inferring the questions asked from the memorialized answers warrant any FOIA disclosure.”