Nat’l Student Legal Def. Network v. U.S. Dep’t of Educ., No. 21-1923, 2023 WL 4450579 (D.D.C. July 11, 2023) (Howell, J.)

Nat’l Student Legal Def. Network v. U.S. Dep’t of Educ., No. 21-1923, 2023 WL 4450579 (D.D.C. July 11, 2023) (Howell, J.)

Re:  Request for eight unique email communications in email chains between Department of Education attorney and SSA attorney

Disposition:  Granting defendant’s motion for summary judgment

• Exemption 5, Attorney Work-Product Privilege:  The court holds that “[defendant] is correct that the eight disputed emails amount to attorney work product since the agency has adequately demonstrated that these communications were made to gather information to help the agency prepare for pending and anticipated litigation concerning the gainful employment regulations, and therefore these emails are largely protected from disclosure under FOIA Exemption 5.”  The court relates that “[defendant] argues that the attorney work product doctrine protects the redacted portions of the disputed emails because these communications were initiated and engaged in by [a Department of Education attorney], when acting in his capacity as an . . . attorney to ‘attempt to obtain documentary support regarding SSA’s decision not to renew the . . . [Memorandum of Understanding (“MOU”) in which “the SSA agreed to provide [the Department of Education] with the aggregate earnings data needed for the pertinent calculations of the debt-to-earnings rates”],” which information was relevant to inform [defendant’s] legal strategy concerning pending and anticipated litigation regarding the gainful employment regulations.”  “First, [the court finds that] the disputed emails contain [the attorney’s] ‘mental impressions, conclusions, [and] opinions’ related to pending and potential litigation concerning the gainful employment regulations.”  “Second, [defendant’s] belief about litigation concerning the gainful employment regulations was objectively reasonable.” 
  
  The court also responds to three of plaintiff’s objections.  First, the court finds that “plaintiff’s claim that communications with non-parties obviates work product protections mistakenly construes the doctrine too narrowly.”  “The D.C. Circuit has made clear that ‘disclosure to a third party does not waive the privilege unless such disclosure, under the circumstances, is inconsistent with the maintenance of secrecy from the disclosing party’s adversary,’ and ‘waiver would occur . . . only if the disclosure substantially increases the possibility of an opposing party obtaining the information.’”  “Plaintiff provides no reason why disclosure to the SSA of some limited contextual information for [the Department of Education attorney’s] request ‘is inconsistent with the maintenance of secrecy from the disclosing party’s adversary,’ . . . considering that ED and SSA had engaged in joint conduct, pursuant to the MOU, to implement the gainful employment regulations that were the subject of litigation challenge.”  “Furthermore, when initiating the email communication with the SSA’s Office of General Counsel, [the Department of Education attorney] ‘informed them that [he] was seeking information regarding SSA’s decision not to renew the 2013 MOU with’ [the Department of Education] . . . .”  “Far from being inconsistent with maintaining the confidentiality of attorney work product, these disputed emails between two agencies’ counsel instead evince [the Department of Education’s] efforts to prepare for pending and anticipated litigation concerning the gainful employment regulations.”  Second, the court relates that “Plaintiff also cries foul at [defendant] shifting the basis for work product protection from initially representing that the disputed emails were prepared by [the Department of Education attorney] in ‘reasonable anticipation of litigation regarding SSA’s decision not to renew the MOU with’ [the Department of Education] . . . , to then add, in defendant’s combined opposition and reply, that the basis was to ‘respond to issues raised in . . . a previously unmentioned lawsuit that was pending at the time he corresponded with SSA’ . . . .”  The court finds that “[s]uch waffling explanations may, as here, prompt the need for in camera review of the disputed withheld records.”  “Notwithstanding some inconsistency in [defendant’s] justification for application of work product protection, no waiver is warranted here because either (or both) proffered reason supports such protection.”  “The [previously unmentioned] litigation was pending at the time that [the Department of Education] communicated with SSA, and his supplemental declaration and the disclosed redacted . . . email reflects that he sought information from SSA to help [defendant] prepare for that litigation.”  “Meanwhile, as discussed earlier, [defendant’s] anticipation of litigation concerning the rescission of the gainful employment regulations was a reasonable one.”  Third, the court relates that “Plaintiff contends that even if work product protection covers the disputed emails, ED has waived such protection through inconsistent conduct in this litigation and in other litigation.”  The court finds that “[n]o waiver of work product protection has occurred here.”  “Plaintiff says that [defendant] has ‘waived the applicability of the work-product protection by placing into the record, in [another case], a statement that is absolutely contradicted by [defendant’s] declaration,’ because in [that other case], defendant ‘filed a declaration from a senior official asserting that SSA had “declined requests from defendant to provide any written response confirming it would not renew the MOU,”’ while [defendant] here asserts that the disputed emails ‘contain an SSA employee’s description of “her understanding of SSA’s position.”’”  “Yet, the [related case’s] declaration is not inconsistent with the [defendant’s] declarations in this litigation.”  “[The Department of Education attorney] did not request, nor did SSA apparently provide, a statement in writing from SSA about the latter’s declination to renew the MOU.”  “[The Department of Education attorney] merely sought assistance in responding to [a separate litigation’s] plaintiffs’ argument that [defendant] provided no evidence of the SSA declining to renew the MOU because [defendant] did ‘not have anything from SSA on that point.’”