Nat'l Immigration Project of Nat'l Lawyers Guild v. DHS, No. 11-3235, 2014 WL 6850977 (S.D.N.Y. Dec. 3, 2014) (Rakoff, J.)

Nat'l Immigration Project of Nat'l Lawyers Guild v. DHS, No. 11-3235, 2014 WL 6850977 (S.D.N.Y. Dec. 3, 2014) (Rakoff, J.)

Re: Request for records concerning OSG representation in 2009 brief to Supreme Court regarding reentry of certain aliens

Disposition: Denying plaintiff's motion for summary judgment; granting defendant's cross-motion for summary judgment

• Exemption 5, Attorney Work-Product:  The court finds that Exemption 5 applies to this material because "the materials in dispute are plainly 'documents ... prepared in anticipation of litigation,' as they consist of marked-up drafts and discussions among attorneys at various agencies regarding the government's response to [a] Ninth Circuit's post-argument order."  While the court ultimately reject's plaintiff's argument concerning the crime-fraud exception, "the Court is skeptical of the government's contention that the crime-fraud exception has no applicability in the FOIA context."  The court explains that "it is utterly implausible to suppose that Congress intended FOIA Exemption 5 to shield government documents when they were created for the purpose of furthering a crime or a fraud."  "Nonetheless, the Court, having reviewed the disputed documents in camera, is satisfied that the crime-fraud exception does not apply to these particular documents."  "The documents reveal neither a systematic, undisclosed problem with the ICE Directive nor a conspiracy to mislead the United States judiciary."  Additionally, the court finds that "[e]ven if the documents did reveal evidence of government wrongdoing, moreover, plaintiffs' showing would be insufficient" because "the exception applies 'only when the court determines that the client communication or attorney work product in question was itself in furtherance of the crime or fraud.'"  Despite plaintiff's arguments to the contrary, the court also holds that "the fairness doctrine does not apply."  The court finds that this doctrine "applies only where a party selectively discloses portions of privileged communications or puts their factual contents at issue in a litigation."  "It does not allow a party to obtain discovery of privileged materials generated in connection with another, unrelated matter merely because they contain information that would be helpful to its case."