Protect the Public’s Trust v. NLRB, No. 23-2084, 2025 WL 1233894 (D.D.C. Apr. 29, 2025) (Walton, J.)

Protect the Public’s Trust v. NLRB, No. 23-2084, 2025 WL 1233894 (D.D.C. Apr. 29, 2025) (Walton, J.)

Re: Request for records concerning participation of two members of NLRB in matters before NLRB involving their former employers and/or clients

Disposition:  Denying without prejudice defendant’s motion for summary judgment; granting in part and denying without prejudice in part plaintiff’s motion for summary judgment

• Exemption 5, Attorney Work-Product:  “Based on the current record in this case, the Court concludes that the defendant has not sufficiently established that it properly withheld the contested portions of the Ethics Memo under the work product privilege and Exemption 5.”  “However, because it appears to the Court that reviewing the withheld portions of the Ethics Memo will aid the Court’s de novo determination of whether the defendant appropriately invoked the attorney work product privilege as to the withheld portions of the memo, the Court finds that further inquiry is necessary before it makes a determination as to whether production of those portions is required.”  “Accordingly, the Court concludes that it must conduct an in camera review of the unredacted version of the Ethics Memo.”  “First, contrary to the defendant’s position, the Court finds that the plaintiff has offered more than ‘speculation[ ]’ that the Ethics Memo was drafted at least in part due to the Members’ requests for ethics guidance, . . . rather than solely because of [a] subjective anticipation of future litigation.” “And, upon independent review of the current record, including the . . . Declarations, the Court agrees with the plaintiff that it is at least a disputed fact as to whether the Ethics Office drafted the Ethics Memo in response to the Members’ requests for ethics advice, rather than – or at least in addition to – ‘because of’ anticipated future litigation.”  “The defendant argues that, even assuming arguendo that the Ethics Memo was created, at least in part, to provide guidance on ethics compliance to the Members, the withheld portions of the Ethics Memo were nonetheless properly withheld pursuant to the work product privilege because the record shows that it was also prepared in anticipation of litigation.”  However, “[d]espite the defendant’s contentions, [defendant’s] Declarations do not directly address the key question in this case, which is how the redacted portions of the Ethics Memo were drafted with the specific perspective of [defendant’s] anticipation of litigation, distinct from how the Ethics Memo would have been drafted under normal circumstances where a Member merely sought recusal guidance.”  “Specifically, although the defendant argues that ‘[t]he [Ethics] Memo was created specifically in response to the subjective belief of the drafter of the Ethics Memo, . . . that litigation would likely ensue regarding’ the Members’ recusals, . . . the record and [defendant’s] Declaration appear to undermine that representation.”  “As the record indicates, [there was outreach] ‘seek[ing] the [Designated Agency Ethics Officer’s] guidance on a recusal question concerning a lawsuit filed . . . against the [NLRB].’”  “And, on October 5, 2021, [one member’s] General Counsel contacted the Ethics Office, requesting ethics guidance concerning the necessity of his recusal in the . . . litigation . . . .”  “Although the defendant argues that the Right to Work Foundation Letter, in tandem with other challenges to the Board’s latest joint employer rulemaking, underscores the reasonableness of [defendant’s] anticipation of litigation, it appears to the Court that the Members had an independent ethical obligation to seek that guidance independent of any anticipated litigation, and nothing in the unredacted portion of the Ethics Memo appears to reference litigation strategies or defenses.”  “The Ethics Memo also indicates that the Ethics Office ‘considered whether recusal is warranted under the relevant legal ethics rules and as a matter of due process and prejudgment.’”  “As with the other redacted portions of the Ethics Memo, these sections may or may not reflect that they were drafted uniquely ‘because of’ anticipated litigation relating to the Members’ participation, . . . however, these portions are almost entirely redacted, and the few sentences that have been released frame the Ethics Memo’s analysis as analyzing whether there are ‘ethics concerns’ that would ‘prohibit’ the members from participating in the matter . . . .” “Therefore, although, as a general matter, due process, as well as bias or prejudgment, may form the basis for litigation regarding the participation of an individual in a given proceeding, without more, the Court is not satisfied that such is the case here.” “Due to these ambiguities, the Court cannot conclude on the current record that the defendant has met its burden of establishing that the document was prepared in anticipation of litigation and thus qualifies for the privilege and the exemption under the FOIA.” “[T]he Court concludes that it must conduct an in camera review of the unredacted version of the Ethics Memo to assess de novo the applicability of the attorney work product privilege – and thus, Exemption 5 – claimed by the defendant for withholding the redacted portions of the Ethics Memo pursuant to the FOIA.”