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DocuFreedom Inc. v. DOJ, No. 17-2706, 2019 WL 6682981 (D. Kan. Dec. 6, 2019) (Crabtree, J.)


DocuFreedom Inc. v. DOJ, No. 17-2706, 2019 WL 6682981 (D. Kan. Dec. 6, 2019) (Crabtree, J.)

Re:  Request for 119 items from DOJ library and series of emails

Disposition:  Granting defendant's motion for summary judgment as to five items at issue

  • Exemption 5, Attorney Work-Product:  The court holds that "DOJ . . . properly withheld Item 4 under Exemption 5."  The court finds that "a handout for an internal training presentation" which "provides guidance on procedures to follow when responding to subpoenas or requests for non-public DOJ documents in criminal prosecutions" and a document which "instructs federal prosecutors how to use Rule 69 offers of judgment to settle cases" . . . "are exempt from disclosure under Exemption 5 because they address how prosecutors should conduct litigation."  Similarly, the court finds that "a memorandum 'explaining Rule 68 considerations prepared in relation to a particular case in litigation'" which "was created for the purpose of helping DOJ lawyers evaluate a settlement in a particular lawsuit," although revealing "no case strategy or case-specific legal analysis, . . . nonetheless is protected under the work-product doctrine because '"[a]ny part of [a document] prepared in anticipation of litigation, not just the portions concerning opinions, legal theories, and the like, is protected by the work product doctrine."'"  Also, regarding "briefing papers and commentaries written to assist DOJ attorneys with specific kinds of cases or issues," the court finds that "[e]ven though these documents do not apply to specific cases, '"[E]xemption 5 extends to documents prepared in anticipation of foreseeable litigation . . . even if no specific claim is contemplated."'"  The court finds that "all were prepared in anticipation of litigation because they outline the legal strategies of attorneys who litigate on the government's behalf."  "These items fall within the scope of work product protection because they present guidance about '"recurring, parallel factual settings and identical legal and policy considerations."'"
  • Exemption 6:  "The court . . . finds that DOJ properly redacted the names and phone numbers of government employees," specifically "a directory of employees listing their specific area of expertise and work phone number."  The court finds that "Exemption 6 'broadly exempts disclosure of all information that "applies to a particular individual"'" "[a]nd public access to names and phone numbers of these employees wouldn't 'contribut[e] significantly to public understanding of operations or activities of the government.'"
  • Procedural Requirements, "Reasonably Segregable" Obligation:  Regarding "a 369-page training manual on trial advocacy,". . . "a 634-page manual covering criminal advocacy training," and "a manual focused on providing guidance to federal prosecutors to fulfill their criminal discovery obligations," . . . "[t]he court already has determined that the attorney work product privilege likely applies."  However, "[t]he court reserved its summary judgment ruling on these items because '[i]n cases involving voluminous or lengthy work-product records . . . it [is] generally preferable for courts to make at least a preliminary assessment of the feasibility of segregating nonexempt material.'"  "After reviewing them, the court finds that no portion of [these items] is segregable[]" because "all sections serve an adversarial purpose."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Attorney Work-Product Privilege
Exemption 6
Procedural Requirements, “Reasonably Segregable” Obligation
Updated December 9, 2021