Georgia v. DOJ, No. 21-03138, 2023 WL 2116375 (D.D.C. Feb. 20, 2023) (McFadden, J.)

Georgia v. DOJ, No. 21-03138, 2023 WL 2116375 (D.D.C. Feb. 20, 2023) (McFadden, J.)

Re:  Request for records concerning DOJ’s suit challenging changes to Georgia’s election laws

Disposition:  Granting plaintiff’s motion for summary judgment

• Exemption 5, “Inter-Agency or Intra-Agency” Threshold Requirement:  The court holds that “DOJ has not shown that the private plaintiffs and their lawyers advised the agency with only the United States’ interests in mind, nor has it shown that it solicited those groups for their expertise.”  “Thus, taken together, DOJ has not met its burden to prove that the withheld communications are ‘intra-agency’ within the meaning of Exemption 5.”  At issue are certain communications between defendant and outside parties in eight lawsuits concerning a challenge to Georgia’s Election Integrity Act where “plaintiffs in all the lawsuits entered into a formal common interest agreement with DOJ.”  The court considers whether the consultant corollary doctrine can apply to this material and finds that “Circuit precedent teaches that three principles guide this inquiry.”  “Most important . . . is whether the agency presented evidence that the private parties are sufficiently disinterested to be ‘analogous to government consultants.’”  “Second, a party is more likely to be considered a consultant if the agency solicited the communications.”  “Third, a private party is more likely to be a consultant when the agency seeks its expertise.”  “None of these three principles is necessarily dispositive.”  “But the Court finds that DOJ fails to show any of them.”
  
  First, the court finds that “DOJ has not shown that the plaintiff groups acted as disinterested parties in their communications with it.”  “That is, it has not met its burden to prove that its co-litigants lacked private (and possibly divergent) interests in teaming up with the federal government.”  “DOJ candidly concedes that its litigation partners’ interests in collaborating with it extend beyond merely assisting the agency.”  “So the purported consultants do not necessarily play the same role as outside counsel retained by an agency to provide independent legal advice.”  “DOJ’s ‘consultants’ have skin in the game because they also challenge SB 202.”  “It is not just that these outsiders had ‘a definite point of view.’”  “DOJ has failed to show that these groups provided independent advice to the United States and did not work to advance their own causes.”  “DOJ asserts that it consulted the interest groups ‘to further the Voting Rights Act lawsuit brought by the United States by developing litigation strategy, sharing legal research, and discussing potential approaches to the litigation.’”  “But DOJ has not shown that the interest groups teamed up with DOJ to further the United States’ distinct interests rather than their own.”  “DOJ has produced no evidence from any of the entities or individual plaintiffs attesting to their purpose in working with DOJ.”  “Nor are there declarations from any of the groups’ lawyers describing the nature and intent of their work with the agency.”  “More, DOJ’s own evidence raises the likelihood that the groups’ interests do diverge from the United States’.”  “Unlike DOJ, the private litigants each brought constitutional claims.”  “They also challenged different provisions of the law.”  “DOJ responds that the interest groups could not be seeking to sway the Department because the United States had sued by the time of the communications at issue.”  “That is not enough.”  “After all, the withheld communications ‘comprised discussions in advance of the Department’s ultimate litigation decisions.’”  “This suggests that DOJ’s final litigation positions were not necessarily immune to lobbying.”  “DOJ’s failure to show that its litigation partners were sufficiently disinterested makes it difficult to see how the withheld communications fit within even an expansive reading of Exemption 5.”
  
  Second, the court finds that “nothing in the record suggests that DOJ solicited the private entities for assistance in litigating its case against [plaintiff].”  “All that is known is that at some point DOJ and plaintiffs’ counsel in the various cases challenging SB 202 agreed to work together, and that understanding was later memorialized in a common interest agreement.”  “The record is silent as to whether the partnerships here were ‘generated by [its] initiative’ or if the interest groups first lobbied DOJ for help.”  “That a common interest agreement exists between DOJ and a few parties does not mean, or even suggest, that it was DOJ that solicited input from the interest groups rather than the other way around.”
  
  Third, the court finds that “DOJ has not shown that it received advice ‘from a discrete group of [experts].’”  “Though not dispositive, this too suggests that the interest groups here are different in kind from the outsiders the Circuit has previously recognized as falling within the consultant corollary.”  “This is not a[n] instance when an agency ‘encounter[ed] problems outside their ken’ and was required to ‘enlist the help of outside experts.’”  “Challenges to election laws are squarely within DOJ’s ken.”  “It ‘undoubtedly ha[s] expertise in election litigation and litigation strategy.’”  “Indeed, the Court cannot imagine a group of lawyers less in need of assistance to enforce federal voting laws than the specialists in DOJ's Civil Rights Division.”
  
  The court finds that “DOJ’s primary response is that ‘there is no requirement that the consultant lack an interest of its own.’”  “At bottom, DOJ’s argument leans heavily on Hunton & Williams v. Department of Justice, 590 F.3d 272 (4th Cir. 2010).”  “The [Hunton] majority’s analysis was informed more by policy concerns than [DOI v. Klamath Water Users Prot. Ass'n, 532 U.S. 1 (2001)] or Exemption 5’s text.”  “Hunton shoehorned the common interest doctrine into the narrow consultant corollary exception to Exemption 5’s rule that only intra-governmental communications can be withheld.”  The court finds that “federal agencies are not ordinary litigants.”  “They possess unmatched resources and staggering power to enforce the thousands of statutes and regulations of their own making.”  “These prerogatives come with strings.”  “Agencies are subject to FOIA and ‘require[d] . . . to adhere to a general philosophy of full agency disclosure.’”  “Thus, if FOIA’s disclosure obligations temper an agency’s ability to litigate with private parties in secret, this is a feature, not a bug.”  “FOIA ‘was obviously expected and intended to affect Government operations.’”  “‘Congress had to realize that not every secret under the old law would be secret under the new.’”  In Hunton, “DOJ ‘share[d] a unitary interest in achieving a litigative outcome and result’ with a single private litigant.”  “‘The point,’ Hunton explained, ‘is that there is no conflict of interest when it comes to advancing the public’s interest because the outsider stands to gain personally only if the public’s interest is vindicated.’”  “But here, where the private litigants seek different relief under different laws, DOJ has not made that same showing.”  “Of course, even if Hunton were factually similar to this case and the Court found its logic persuasive, the Court is still not free to disregard binding Circuit precedent.”  “The purported consultant in Hunton was admittedly ‘acting in its own interest.’”  “Yet as explained already, ‘this Circuit does require that outside consultants “lack an independent interest”’ . . . .”  “So to the extent that Hunton suggests that an outsider’s self-interest can be ignored when that interest overlaps with the agency’s, that is not the law in this circuit.”  “Nor is it consistent with Klamath.”
  
  “On this record, DOJ has not shown that the common interest doctrine shields the emails at issue.”  The court relates that “DOJ contends that it memorialized a common interest agreement with the plaintiff groups, and thus that the deliberative process and work-product privileges continue to protect the withheld communications from disclosure under the common interest doctrine.”  “The Court agrees with [plaintiff] that, based on DOJ’s filings, it lacks evidence to find the existence of a common interest agreement as early as June 2021.”  “DOJ therefore has a problem for withheld communications sent before July 28.”  “DOJ attempts to salvage protection of its pre-July 28 communications by arguing that they immediately precede the email memorializing the common interest agreement.”  “These are ‘indicia,’ DOJ says, that ‘demonstrate that the senders and recipients of the emails mutually understood that they would be kept confidential . . . pursuant to a common interest agreement.’”  “These ‘indicia’ are insufficient.”  “They do not establish that the communications were made under an existing, rather than inchoate, common interest agreement.”  “That an email purports to be a ‘common interest communication’ does not, on its own, show that an ‘agreement has been proved to exist,’ much less that ‘the scope of the agreement is clear.’”  “To be sure, and as [plaintiff] concedes . . . a common interest agreement need not be in writing.”  “The problem for DOJ is that the possibility of future joint litigation does not mean the parties ‘clearly and specifically agreed in some manner to pool information for a common goal.’”  “The unredacted portions of the emails no doubt suggest that the parties contemplated an eventual common interest agreement – perhaps to be sorted out on a conference call that afternoon.”  “But the evidence does not show that there was a meeting of the minds before the call that preceded the email recognizing and memorializing their shared understanding.”  “For this independent reason, DOJ must release the Exemption 5 withholdings that predate the July 28 email.”
  
  The court relates that “[plaintiff] makes another argument about why Exemption 5 does not apply, this time with respect to all the challenged withholdings.”  “According to [plaintiff], DOJ has not met its burden to show that it had a sufficiently similar legal interest with each of the private plaintiff groups to invoke the common interest doctrine.”  The court finds that “[plaintiff] is correct.”  “The plaintiff groups and DOJ did not merely bring separate lawsuits against SB 202.”  “The groups, and DOJ, brought substantively different lawsuits asserting separate claims under separate legal theories.”  “In other words, DOJ and the private plaintiffs were not a united front in their litigation against the Act.”  “Nor did they employ the same weapons or seek the same objectives.”  “The Court need not decide whether the common interest doctrine requires a total identity of interests to apply, or whether partially overlapping claims and legal theories is sufficient to invoke the doctrine.”  “This is because DOJ overstates how much the different lawsuits ‘overlap.’”  “Critically, some of the private plaintiff groups do not bring any claims that overlap with those brought by the United States.”  “As DOJ concedes, two of the suits . . . do not allege that SB 202 violates the Voting Rights Act at all.”  “So, even at a high level of generality, it is not the case that DOJ and the private plaintiff groups each share an interest ‘in succeeding on the Voting Rights Act claims.’”  “This absence of claims under the Voting Rights Act is fatal to DOJ’s reliance on the common interest doctrine.”  “The Circuit has been clear[:]  “[t]he parties must ‘anticipate litigation against a common adversary on the same issue or issues’ for the doctrine to apply.”  “Thus, at the least, the common interest doctrine does not protect the communications between DOJ and these two groups.”  “And by disclosing communications to them, DOJ waived any privilege that could have attached vis-à-vis the other plaintiff groups.”  “The Court’s conclusion is reinforced by the Northern District’s decision not to consolidate the cases without Voting Rights Act claims.”  “After [the judge in that case] directed the parties to inform him of their position on consolidation, the [two] plaintiffs objected to consolidation.”  “Those plaintiffs argued that ‘the issues of fact and law in their specific cases are distinct in significant respects and will not require the same type and scope of discovery as the claims alleged in the’ other cases.”  “[The judge] agreed.”  “DOJ also contends that the United States’ filing of a Statement of Interest in one of the other cases shows that the United States shares an interest in the other challenges to SB 202.”  “But that Statement of Interest only concerns the United States’ interest in ensuring ‘enforcement of Section 2 of the Voting Rights Act of 1965 . . . and Section 101 of the Civil Rights Act of 1964.’”  “If anything, this suggests that the United States does not share an interest – or perhaps has a divergent interest – in the parties’ constitutional and other statutory claims.”