                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


RICHARD G. CONVERTINO,              )
                                    )
                     Plaintiff,     )
                                    )
             v.                     )                 Civil Action 04-0236 (RCL)
                                    )
UNITED STATES DEPARTMENT OF )
JUSTICE, et al.,                    )
                                    )
                     Defendant.     )
____________________________________)


                                  MEMORANDUM OPINION

       This matter comes before the Court on the plaintiff’s Motion [116] to Compel Production

from defendant. Upon consideration of the plaintiff’s motion, the defendant’s opposition [129]

thereto, the plaintiff’s reply [145] brief, the defendant’s surreply [149], the applicable law, and

the entire record herein, the Court concludes that the plaintiff's motion will be DENIED. The

Court's reasoning is set forth below.

       Upon consideration of Jonathan Tukel’s Motion and Memorandum of Law to Intervene

in Response to Plaintiff’s Motion to Compel Production [130], the plaintiff’s opposition [132]

thereto, Jonathan Tukel’s reply [136], the applicable law, and the entire record herein, the Court

concludes that Jonathan Tukel’s motion will be GRANTED.

                                         BACKGROUND

       Plaintiff, Richard G. Convertino filed the Complaint against the United States

Department of Justice (“DOJ”) on February 13, 2004, raising two counts. (Compl. ¶¶ 24-143.)

One count has been dismissed leaving only whether defendant willfully and intentionally

disclosed information to a reporter for the Detroit Free Press in violation of the Privacy Act, 5



                                                  1
U.S.C. § 552a. (Def.’s Opp’n to Pl.’s Mot. to Compel at 3-4.) The disclosed information most

likely consisted of one or more documents from an investigation into plaintiff’s conduct by

defendant’s Office of Professional Responsibility (“OPR”). (Compl. ¶¶ 109-113.)

        The OPR began an investigation in November of 2003 after the United States Attorney’s

Office for the Eastern District of Michigan referred allegations of prosecutorial misconduct

against Assistant United States Attorney Richard Convertino—former lead trial counsel in the

case of United States v. Koubriti. (Def.’s Opp’n to Pl.’s Mot. to Compel Ex. 12 at 1.) The OPR

crafted a series of letters stating what issues the OPR would investigate and which it would not.

(Id.) A limited number of people had access to these private letters. On January 17, 2004 an

article addressing the investigation by OPR was written by David Ashenfelter and published in

the Detroit Free Press. (Id.) Following the leak, the Office of the Inspector General (“OIG”)

began an investigation to determine who provided the information to the press, ultimately

concluding that there was insufficient evidence to prove, by a preponderance of the evidence,

who the leaker was. (Id. Ex. 12 at 16.)

        Plaintiff filed this motion to compel production of 736 various documents that plaintiff

believes are responsive to his discovery requests. (Id. at 1, Exs. 1, 2.) Defendant has categorized

these documents as privileged, either by the deliberative process privilege, the work product

doctrine, or the attorney-client privilege and thus claims the documents are not discoverable. (Id.

at 3-27.) Plaintiff has requested that the Court review the documents in camera “to the extent

that the applicability of the deliberative process privilege is not clear . . . .” (See Pl.’s Reply to

Def.’s Opp’n to Pl.’s Mot. to Compel at 1.)




                                                   2
                                            DISCUSSION

        Plaintiff’s motion to compel discovery is DENIED because the 736 documents requested

are protected by various privileges. Fed. R. Civ. P. 26(b)(1) requires a party to disclose any

material the other party requests that is relevant to plaintiff’s claim or defendant’s defense, if it is

not protected by a privilege. Fed. R. Civ. P. 26(b)(1) (“. . . parties may obtain discovery

regarding any matter, not privileged, that is relevant to the claim or defense of any party.”).

Neither party disputes that the 736 documents requested are relevant to the Complaint. (Pl.’s

Mot. to Compel at 4-6.) Again, the Complaint alleges that defendant violated plaintiff’s rights

under the Privacy Act by disclosing information to the press. (Compl. ¶¶ 91-143). “[T]o

establish a claim under the Privacy Act, a party ‘must prove that: (1) the agency 'disclosed'

information; (2) the information 'disclosed' is a 'record' contained within a 'system of records'; (3)

an adverse impact resulted from the disclosure; and (4) the agency's disclosure was willful or

intentional.’” See Alexander v. FBI, 193 F.R.D. 1, 6 (D.D.C. 2000) (Lamberth, J.) (quoting

Barry v. United States Dep't of Justice, 63 F. Supp. 2d 25, 27 (D.D.C. 1999)); see also

Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (requiring the Privacy

Act violation to be “so patently egregious and unlawful that anyone undertaking the conduct

should have known it was unlawful”). To prove his case, plaintiff must show that someone

leaked information to the press and that they did so willfully or intentionally. Documents that

concern plaintiff may be useful to establish the elements of the claim, including the intent of the

leaker. (Pl.’s Mot. to Compel at 5-6.) All of the documents contained within the privilege log

concern plaintiff in one fashion or another, making them relevant to the cause of action. (See

Def.’s Opp’n to Pl.’s Mot. to Compel Ex. 1.)




                                                   3
I. Deliberative Process Privilege

       The deliberative process privilege acts to shield documents from discovery requests. It

protects “advisory opinions, recommendations and deliberations comprising part of a process by

which governmental decisions and policies are formulated.” In re Sealed Case, 121 F.3d 729,

737 (D.C. Cir. 1997) (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324

(D.D.C. 1966)). The purpose of the privilege is to protect the decision-making process of the

government by creating an environment where people can freely express their opinions and

debate alternative approaches before a decision is made. See id. To qualify for the privilege the

document must be both “predecisional” and “deliberative.” The defendant has classified 697

documents as protected by this privilege. (Def.’s Opp’n to Pl.’s Mot. to Compel at 6.)

       A. Predecisional and Deliberative

       The documents requested are both predecisional and deliberative. (Def.’s Opp’n to Pl.’s

Mot. to Compel at 6.) “[A] document is deliberative if it ‘reflects the give-and –take of the

consultative process,’ . . . [a document is predicisional if it] ‘reflect[s] the agency “give-and-

take” leading up to a decision that is characteristic of the deliberative process.’” See Access

Reports v. Dep’t of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991) (quoting Coastal States Gas

Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)).

       Although there are too many documents to go into detail on how each satisfies the

privilege requirements, the plaintiff does not effectively dispel the contention that the documents

are both predicisional and deliberative. (Def.’s Opp’n to Pl.’s Mot. to Compel at 6; cf. Pl.’s Mot.

to Compel at 10-11.) Further, defendant has attached “declarations from officials in the relevant

DOJ components formally asserting the deliberative process privilege over the withheld

documents.” (Def.’s Opp’n to Pl.’s Mot. to Compel at 2.) The documents fall into 10 various




                                                   4
groups including; (1) notes and summaries by the OIG investigator, (2) other documents related

to the OIG investigation, (3) documents related to inquires by Congress, (4) documents and

correspondence to/from non-OIG/OPR government officials regarding those investigations, (5)

documents related to plaintiff’s September 9, 2003 testimony before the Senate Finance

Committee, (6) documents related to the Public Integrity investigation/criminal charges against

plaintiff, (7) documents related to personnel actions regarding plaintiff, (8) documents related to

the OPR investigation, (9) documents related to multiple or unspecified investigations, and (10)

documents related to Koubriti litigation and file review. (Pl.’s Mot. to Compel at 16-24.)

Although the documents fall under the deliberative process privilege plaintiff argues that they are

not protected because (a) the documents are directed at the defendant’s intent, (b) the documents

are discoverable because the government participated in misconduct, and/or (c) plaintiff’s need

for the documents is greater than defendant’s need to prevent the chilling effect. (Id.)

       B. Exceptions

       The balancing test, discussed later on, and typically applied to the privilege, is not needed

when one of two exceptions apply; (1) the government’s intent is squarely at issue or (2) there is

any evidence of governmental misconduct. See generally Alexander, 193 F.R.D. at 10

(explaining the deliberative process privilege). Plaintiff essentially raises two separate concerns

in his motion to compel and his reply and therefore reasons that the deliberative process privilege

should not apply. The first concern, which plaintiff believes entitles him to the disclosure of the

government documents, is the investigation into whether the defendant actually acted willfully or

intentionally in the leak of private information about plaintiff, in violation of the Privacy Act.

(Pl.’s Reply to Def.’s Opp’n to Pl.’s Mot. to Compel at 1-5.) The second concern, which

plaintiff also believes removes the deliberate process privilege, is whether defendant retaliated




                                                  5
against plaintiff by attempting to cover-up the leaker(s). (Id. at 6.) The Court finds that the

second concern is not legitimate and therefore, the only documents that may even be

discoverable are documents that could reveal the potential leaker(s)’ intent in the disclosure of

the information to the press or government misconduct.

                1. The Government Intent Exception

        The deliberative process privilege does not apply when the “government’s intent is

squarely at issue.” See Tri-State Hosp. Supply Corp. v. United States, No. 00-1463, 2005 U.S.

Dist. LEXIS 33156, at *23-25 (D.D.C. Dec. 16, 2005) (explaining that when intent is at issue

there is no need for an evidentiary showing of government misconduct to overcome the

privilege). “If the plaintiff's cause of action is directed at the government's intent . . . it makes no

sense to permit the government to use the privilege as a shield.” In re Subpoena Duces Tecum

Served on the Office of the Controller of the Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998).

The unavailability of the privilege “is limited to those circumstances in which the cause of action

is directed at the agency's subjective motivation.” In re Subpoena Duces Tecum Served on the

Office of the Comptroller of the Currency (In re Subpoena Duces Tecum II), 156 F.3d 1279,

1279 (D.C. Cir. 1998) (on petition for rehearing en banc). “The privilege was fashioned in cases

where the decisionmaking process is collateral to the plaintiff's suit.” In re Subpoena Duces

Tecum, 145 F.3d at 1424-25.

        The first concern raised by plaintiff is related to the intent of the individual(s) when they

leaked the confidential information. The Privacy Act requires that the government’s actions be

“willful” or “intentional.” See Alexander, 193 F.R.D. at 6. “[I]f either the Constitution or a

statute makes the nature of governmental officials' deliberations the issue, the privilege is a

nonsequitur.” In re Subpoena Duces Tecum, 145 F.3d at 1424. However, the government




                                                   6
deliberations are not being challenged—it is the decision of the individual(s) who leaked the

information that is at issue and without knowing whom that individual is we cannot look at their

intent. Cf. Tri-State Hosp. Supply Corp., 2005 U.S. Dist. LEXIS 33156, at *5 (finding privilege

inapplicable because the “claims place the government deliberations process squarely at issue”);

(Def.’s Surreply in Opp’n to Pl.’s Mot. to Compel at 10-11 n.8.) Plaintiff is requesting

documents that are deliberative and predecisional to various decisions defendant made, but not

specifically to the decision to leak the private information. Thus the decision-making process is

collateral to plaintiff’s cause of action. Cf. In re Subpoena Duces Tecum, 145 F.3d at 1424-25

(explaining that the privilege stands when the decision-making process is “collateral” to the

cause of action). As defendant points out “documents that could even arguably reveal such

intent have already been produced. Included in the more than 10,000 pages of documents

produced by the Department in this case are the drafts and final versions of the OPR referral

letter, . . . drafts and final version of the OIG report, and audio recordings, transcripts, and

affidavits obtained from every witness interviewed during the OIG investigation.” (Def.’s Opp’n

to Pl.’s Mot. to Compel at 16.) Plaintiff has all of the factual information gathered during the

investigations as well. (Id.)

       The documents plaintiff is now requesting are related to internal investigations and look

at the opinions of government employees in conducting investigations, talking with Congress,

and dealing with potential misconduct on the part of plaintiff. (See Def.’s Opp’n to Pl.’s Mot. to

Compel Ex. 1.) They do not look at the intent of the potential leaker. (Id.) The privilege

remains even if the motive of the government is relevant to some inquiry in the case, as long the

government’s subjective motivation is not the very “essence of a claim.” See GE v. Johnson, No.

00-2855, 2006 U.S. Dist. LEXIS 64907, at *23-24 (D.D.C. Sept. 12, 2006).




                                                   7
       This case is difficult because at this time it is unknown who disclosed the information to

the press, therefore, it is impossible to determine if they did so willfully or intentionally.

Plaintiff relies on Alexander as support for his argument that the Privacy Act puts the

government’s intent directly at issue. (Pl.’s Mot. to Compel at 11-12.) In Alexander the Court

found that the government had participated in misconduct but stated that “even without

considering the misconduct exception, it appears that the deliberative process privilege would

not be applicable in this case,” because the deliberative process privilege “‘does not apply when

a cause of action is directed at the government's intent.’” Alexander, 193 F.R.D. at 10 n.14

(quoting In re Subpoena Duces Tecum II, 156 F.3d at 1279). Alexander can be distinguished

from this case however by noting that the government admitted that it “improperly obtained FBI

files . . . but [] claims it was simply an unintentional mistake.” Id. That put the government’s

intent squarely at issue. However, on the facts of this case, the government’s intent cannot be

put squarely at issue until we know whether a government actor did in fact disclose the private

information to the press and at this time the government has not admitted to disclosing the

information. (Pl.’s Mot. to Compel at 12 n.1.)

       The government’s intent in the requested documents is collateral to the cause of action

and thus protected by the privilege. This cause of action is not looking directly at government

decision-making, but rather it is looking at who leaked information to the press and why.

Although the law is not clear about which government deliberations become exposed when the

government’s intent is squarely at issue it seems clear that it would be the deliberations leading

up to the Privacy Act violation, not other random deliberations that should be disclosed. Unless

there are reasons to suspect that government misconduct occurred the privilege does not

disappear. See In re Sealed Case, 121 F.3d at 738.




                                                   8
                2. The Government Misconduct Exception

        “[T]he privilege disappears altogether when there is any reason to believe government

misconduct occurred.” Id. The deliberative process “privilege is routinely denied” when the

documents “may” uncover government misconduct because society has an interest in an honest

government. See id. at 738 (quoting Texaco Puerto Rico, Inc. v. Dep’t of Consumer Affairs, 60

F.3d 867, 885 (1st Cir. 1995)); see also Alexander v. FBI, 186 F.R.D. 170, 177 (D.D.C. 1999)

(Lamberth, J.) (finding that misconduct is more than a factor to be considered, it removes the

privilege).

       The misconduct that took place in this case is the disclosure of the private information to

the press. Plaintiff has produced evidence to suggest potential governmental misconduct. The

information found in the Free Press article is also in one or more of the OPR referral letters.

(Pl.’s Reply to Def.’s Opp’n to Mot. to Compel Ex.12 at 3-5.) Further, only DOJ employees had

access to this information so it would be difficult for the Free Press to obtain the information

without at least the assistance of a DOJ employee. (Id. at 12 n.1.) When the misconduct

exception applies certain documents become discoverable. “To the extent that the applicability

of the deliberative process privilege is not clear,” plaintiff has requested “that the Court review

the documents in camera to determine whether they are privileged.” (Pl.’s Reply to Def.’s

Opp’n to Pl.’s Mot. to Compel at 19-20.) Finding that the documents are relevant as well as

deliberative and predicisional, the Court was willing to look at many of the documents in camera

to see if they should be released because of governmental misconduct. See In re Sealed Case,

121 F.3d at 746 (noting that documents that have a slight chance of revealing misconduct should

be reviewed).




                                                  9
        The Court Ordered the defendant to turn over certain requested documents to the Court

by November 20, 2009. The documents that were reviewed in camera were the documents listed

in footnotes 1-6 in the Court’s Memorandum Opinion [151]. These documents were from

Categories 3 (in part), 4, 5, 6, 7, 8, 9, and 10 of plaintiff’s classification system. (See Pl.’s Mot.

to Compel at 16-24.) Because it is apparent that leaking confidential information to the press is

misconduct it was possible that these documents may have shed light on governmental

misconduct. After careful review of the documents, the Court has determined that the documents

are what the defendant claims them to be. (See Def.’s Opp’n to Pl.’s Mot. to Compel Ex. 1.)

The Court found no signs of the governmental misconduct alleged by plaintiff. Therefore, the

deliberative process privilege remains in tact for all documents requested by plaintiff in his

motion to compel and no documents will be turned over to the plaintiff.

        The remaining categories (1 and 2 and parts of 3) that were not reviewed in camera are

also still protected by the deliberative process privilege. First, these documents are not relevant

to the misconduct committed by the leaker. There must be at least some connection between the

government misconduct and the documents for the privilege to yield. See McPeek v. Ashcroft,

202 F.R.D. 332, 335 (D.D.C. 2001) (finding the privilege does not disappear when not

challenging the final decision made by a government official). Second, plaintiff has failed to

make a viable claim to a grand cover-up—failing to provide any evidence of suspicions of

wrongdoing during the investigations. There should be some connection between plaintiff’s

cause of action and the final decision. (Def.’s Opp’n to Pl.’s Mot. to Compel at 16.)

                3. Exceptions Do Not Apply Because there is No Evidence of a Government
                Cover-Up

        The second concern plaintiff raises is that the DOJ attempted to cover-up the leakers(s)

and therefore, the documents may expose information regarding this concern. (See Pl.’s Reply to



                                                  10
Def.’s Opp’n to Mot. to Compel at 2-5.) Plaintiff is essentially trying to “relitigate his

previously dismissed retaliation claim.” (Def.’s Surreply in Opp’n to Pl.’s Mot. to Compel at 2.)

The retaliation claim was dismissed on October 19th, 2005 because the Court lacked subject-

matter jurisdiction. (Mem. and Op. at 10.) Plaintiff even states himself that “the leak was just

one part of the DOJ’s greater campaign of retaliation against him for testifying to Congress,”

citing to the earlier dismissed count of plaintiff’s original Complaint. (Pl.’s Reply to Def.’s

Opp’n to Pl.’s Mot. to Compel at 4.) Plaintiff attempts to circumvent the deliberative process

privilege by raising this second concern of a grand scheme of retaliation and cover-up.

                       i. Government Intent and Misconduct Exceptions Applied

       Neither exception applies to the documents requested based on plaintiff’s argument that

there was a grand cover-up scheme created by the DOJ. As discussed above the government’s

intent is not at issue because plaintiff has not produced any evidence to suggest a cover-up by

DOJ and therefore, the government’s intent exception does not apply. The documents being

challenged are not documents that discuss a potential deliberate decision by the government to

cover-up the identity of the leaker(s)—which would reveal the government’s intent.

       Despite plaintiff’s attempts to view the privileged documents there is no evidence of

misconduct. “If there is any reason to believe the information sought may shed light on

government misconduct, public policy (as embodied by the law) demands that the misconduct

not be shielded merely because it happens to be predecisional and deliberative.” Alexander, 186

F.R.D. at 177-78. Other than plaintiff’s assertions that because the OIG investigator was unable

to come to a conclusion and several DOJ employees disliked plaintiff there must have been

misconduct, plaintiff has not provided any evidence of misconduct, including any evidence that

would challenge the government’s intent. Plaintiff must provide enough reason to believe




                                                 11
misconduct took place. Cf. Hinckley v. United States, 140 F.3d 277, 285 (D.C. Cir. 1998)

(noting that the privilege would be meaningless, “if all someone seeking information otherwise

protected under the privilege had to establish is that there was disagreement within the

governmental entity at some point in the decisionmaking [sic] process.”). In Hinckley, the court

denied plaintiff’s motion for documents concerning internal deliberations on whether to grant

conditional relief, in part, because plaintiff made “no colorable showing that the Review Board

acted improperly.” Id. at 286. Further, just because there was disagreement, reaching different

conclusions does not immediately suggest “improper motivations.” Id. at 285-86. The purpose

of the deliberative process privilege would be defeated if all a party had to do was claim

misconduct every time it did not like the outcome of a government decision or policy and they

wanted access to the thought process.

       In addition, the Court does not need to reach a conclusion at this time as to whether the

deliberate process privilege protects the documents relevant to the OIG investigation or used by

the investigation, or if it does protect the documents, whether an exception applies in regards to

plaintiff’s second concern because plaintiff is judicially estopped from raising this argument.

                       ii. Judicial Estoppel

       Judicial estoppel is a rule that prevents a party from taking one position in one legal

proceeding, succeeding in that position, and then later taking a contrary position. See Mason v.

United States, 956 A.2d 63, 66 (D.C. Cir. 2008) (“[J]udicial estoppel, generally prevents a party

from prevailing in one phase of a case on an argument and then relying on a contradictory

argument to prevail in another phase.”). The Supreme Court has stated, and this Court has

adopted that, while

       “the circumstances under which judicial estoppel may appropriately be invoked are
       probably not reducible to any general formulation of principle,” [] several factors



                                                12
       typically inform the decision whether to apply the doctrine in a particular case: First, a
       party's later position must be “clearly inconsistent” with its earlier position. Second,
       courts regularly inquire whether the party has succeeded in persuading a court to accept
       that party's earlier position, so that judicial acceptance of an inconsistent position in a
       later proceeding would create “the perception that either the first or the second court was
       misled[.]” Absent success in a prior proceeding, a party's later inconsistent position
       introduces “no risk of inconsistent court determinations,” and thus poses little threat to
       judicial integrity. A third consideration is whether the party seeking to assert an
       inconsistent position would derive an unfair advantage or impose an unfair detriment on
       the opposing party if not estopped.

See Prince Constr. Co. v. District of Columbia Contract Appeals Bd., 892 A.2d 380, 386-87 n.7

(D.C. Cir. 2006) (quoting New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001) (citations

omitted)).

       Plaintiff’s position is clearly inconsistent with his earlier position. Earlier in this

litigation plaintiff asked for a court order requiring David Ashenfelter, the Detroit Free Press

reporter, to appear for a deposition. (Def.’s Surreply in Opp’n to Pl.’s Mot. to Compel at 10-11.)

Plaintiff argued before the court that (1) it could not make a case without knowing the identity of

the individual who leaked the information and (2) because “the OIG had conducted a complete

and thorough investigation” without finding the leaker, plaintiff would not be able to do so

without deposing Mr. Ashenfelter. (Id.) Now, in plaintiff’s Reply to Defendant’s Opposition to

his Motion to Compel Production, plaintiff is claiming that defendant interfered with the OIG

investigation to cover-up prior wrongdoing, thus tainting the OIG investigation. (Pl.’s Reply to

Def.’s Opp’n to Pl.’s Mot. to Compel at 6.) These positions are clearly inconsistent with each

other. By arguing that the OIG investigation was thorough, plaintiff essentially argued that there

was not enough evidence to prove that the government had covered up the leaker and cannot now

ask for the OIG reports claiming that the OIG did an insufficient job during the investigation.

       Plaintiff succeeded in convincing the court to grant plaintiff’s motion, forcing Mr.

Ashenfelter to comply with a deposition. (Def.’s Surreply in Opp’n to Pl.’s Mot. to Compel at



                                                  13
11-12.) The court’s decision was made, in part, based on the fact that OIG investigation had

been very thorough and it would be burdensome, less convenient, and more expensive for

plaintiff to depose all of the individuals as well. (Id.) Therefore, plaintiff needed to go directly

to the source, Mr. Ashenfelter, to inquire about the leak. (Id.)

        Last, defendant would be put at an unfair advantage if plaintiff were allowed to assert

these contrary opinions. Defendant, who relied on plaintiff’s acceptance of the OIG report as a

thorough investigation, would be forced to defend itself on more discovery requests for a claim

that had already been dismissed. (See Mem.and Op. Granting Def.’s Partial Mot. to Dismiss.)

For the foregoing reasons plaintiff is judicially estopped from arguing that the OIG investigation

was not thorough or complete and therefore needs access to relevant documents.

        C. Plaintiff’s Need Does not Outweigh the Government’s Interest in Maintaining Privacy

        When neither exception applies the Court must then look to balance the needs of each

side to determine whether the deliberative process privilege should stand. As far as the

documents that are privileged and not excluded by an exception to the deliberative process

privilege they still are not discoverable by general need. “The deliberative process privilege is a

qualified privilege and can be overcome by a sufficient showing of need.” See In re Sealed

Case, 121 F.3d at 737; see also GE v. Johnson, 2006 U.S. Dist. LEXIS 64907, at *25-26 (noting

the privilege is a qualified protection and will “yield in the face of a party’s overriding need”).

Competing interests must be considered and balanced including “‘the relevance of the evidence,’

‘the availability of other evidence,’ ‘the seriousness of the litigation,’ ‘the role of the

government,’ and the “possibility of future timidity [that would compromise deliberative candor]

by government employees.’” In re Sealed Case, 121 F.3d at 737-38 (quoting In re Subpoena

Served Upon the Comptroller of the Currency, 967 F.2d 630, 634 (D.C. Cir. 1992)). The needs




                                                   14
of the government override the needs of plaintiff. The privilege is “predicated on the recognition

that the quality of administration decision-making would be seriously undermined if agencies

were forced to operate in a fishbowl.” Dow Jones & Co. v. Dep’t of Justice, 917 F.2d 571, 573

(D.C. Cir. 1990). We need to encourage candid communications among governmental officials,

allowing officials to deliberate honestly with each other, without fear that their discussions will

be exposed to the public. See Ryan v. Dep’t of Justice, 617 F.2d 781, 789-90 (D.C. Cir. 1980).

DOJ employees/investigators need to be encouraged to take notes and make observations while

conducting investigations without fear that those notes will be exposed just because someone

disagrees with their final decision. Documents where plaintiff may discover the intent of the

leaker have already been given to plaintiff. It is highly unlikely that plaintiff will discover the

intent of the leaker in the documents requested in plaintiff’s motion to compel. To protect the

purposes behind the privilege, the documents are not discoverable.

II. Work Product Doctrine

       Three documents (Bates DOJ6000558-DOJ6000559, DOJ6000560-DOJ6000561, and

DOJ7001076-DOJ70001077) have now been classified by the defendant as protected by the

Work Product Doctrine. (Def.’s Opp’n to Pl.’s Mot. to Compel at 26.) This number has been

reduced from 95 documents to 3 documents since plaintiff filed his original Motion to Compel.

(Pl.’s Mot. to Compel at 7.) The work product doctrine protects materials prepared in

anticipation for litigation unless the “party shows that is has a substantial need for the materials .

. . and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed.

R. Civ. P. 26(b)(3). Plaintiff has not demonstrated a “substantial need” for the materials which

consist of e-mails discussing the DOJ’s litigation strategy and a set of notes discussing the DOJ’s

response to plaintiff, written by the DOJ’s counsel in this lawsuit. (Def.’s Opp’n to Pl.’s Mot. to




                                                  15
Compel at 26.) Because plaintiff has failed to demonstrate a “substantial need” for these three

documents the Court is denying plaintiff’s request for discovery.

III. Attorney-Client Privilege

          The defendant has also classified 36 e-mails between Jonathan Tukel and his private

counsel as protected by the attorney-client privilege. The DOJ does not claim privilege over

these documents. The Court turns to the motions submitted by Mr. Tukel to decide these specific

issues.

          Mr. Tukel was originally a named defendant—being sued in his official capacity—on

Count I of the Complaint which was subsequently dismissed by the court on October 19, 2005.

Mr. Tukel was serving as First Assistant United States Attorney of the Eastern District of

Michigan when this case was filed and remained in this position until May 2005. (Compl. ¶ 7.)

Mr. Tukel was one of the original parties that initiated confidential personal matters related to

plaintiff. (Id. ¶ 93.) Plaintiff was required to meet with Mr. Tukel to discuss the review of the

cases that had been handled by plaintiff. (Id. ¶ 96.) Mr. Tukel was part of a committee that

drafted and sent allegations to OPR and he was one of the recipients of OPR’s letters indicating

which allegations it would investigate. (Id. ¶ 105.)

          In anticipation of litigation, Mr. Tukel retained private counsel Cadwalader, Wickersham

& Taft LLP (“Cadwalader”). (Tukel’s Mot. and Mem. of Law in Opp’n to Pl.’s Mot. to Compel

at 3.) While working for defendant, Mr. Tukel used his DOJ-provided e-mail address to

communicate with Cadwalader. (Id. at 2.) The e-mails were sent between Mr. Tukel and

Cadwalader, no one else was included on the e-mails. (Id. at 3.) Mr. Tukel now asserts privilege

over these 36 e-mails that the defendant obtained through its e-mail server.




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        The Court will grant Mr. Tukel’s motion to intervene [130] for the “limit[ed] purpose of

asserting his attorney-client privilege and invoking the work product doctrine regarding the

Privilege Documents.” Id. Mr. Tukel can intervene under Rule 24(b)(1)(B)’s permissive

intervention. See Fed. R. Civ. P. 24(b). “On timely motion, the court may permit anyone to

intervene who . . . has a claim or defense that shares with the main action a common question of

law or fact,” as long as the intervention does not “unduly delay or prejudice the adjudication of

the rights of the original parties.” Id. at 24(b)(1)-(3).

        Mr. Tukel’s intervention satisfies the prong of Rule 24 requiring that a claim shares a

common question of law or fact with the main action. This Court has reasoned:

        To bar intervention for collateral discovery issues merely because they do not concern the
        subject matter of the overall action would in many cases defeat the general purpose of
        intervention. The Supreme Court has stated that intervention aims to protect interests
        which are “of such a direct and immediate character that the intervenor will either gain or
        lose by the direct legal operation and effect of the judgment.” [Smith v. Gale, 144 U.S.
        509, 518 (1892) (quoting Horn v. Volcano Water Co., 13 Cal. 62, 69 (1859)).] To be
        protected by means of intervention, the interest must be “a legal interest as distinguished
        from interests of a general and indefinite character. . . .” [Radford Iron Co. v.
        Appalachian Elec. Power Co., 62 F.2d 940, 942 (4th Cir. 1933), quoted in Cascade
        Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 145 (1967) (Stewart, J.,
        dissenting).] Privileges such as the work product privilege satisfy this definition of legal
        interest and can be directly lost through the operation of a discovery order. Without the
        right to intervene in discovery proceedings, a third party with a claim of privilege in
        otherwise discoverable materials could suffer “the obvious injustice of having his claim
        erased or impaired by the court's adjudication without ever being heard.” [Cascade
        Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 145 (1967) (Stewart, J.,
        dissenting).]

United States v. American Telephone & Telegraph Co., et al., 642 F.2d 1285, 1292 (D.C. Cir.

1980). Both the attorney-client privilege and the work product doctrine satisfy the definition of

legal interest. Mr. Tukel need not have a common question of law or fact with the entire suit as

long as it relates to individual issues. See United States v. American Telephone & Telegraph

Co., 642 F.2d 1285,1291 (D.C. Cir. 1980).




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       Further, Mr. Tukel’s motion is timely. Discovery in this case is still ongoing. See In re

Vitamins Antitrust Litigation, No. MISC. 99-197, 2001 WL 34088808, at *3-4 (D.D.C. Mar. 19,

2001) (permitting intervention when discovery was still ongoing). Mr. Tukel did not know that

the DOJ had collected potentially privileged material until April of 2009. (Reply in Supp. of

Tukel’s Mot. and Mem. of Law in Opp’n to Pl.’s Mot. to Compel at 3.) On July 31, 2009, less

than four months later, Mr. Tukel filed his request for intervention, which was consistent with

the schedule set by the Court to reply to plaintiff’s motion to compel. In fact, Mr. Tukel did not

share a common question of law or fact with the action until plaintiff filed the motion to compel,

requesting the potentially protected documents. Fed. R. Civ. P. 24(b). An intervention under

these facts will not “unduly delay or prejudice the adjudication.” Cf. id. at 24(b)(3). As stated

above, Mr. Tukel filed his motion to intervene by the time defendant was required to respond to

plaintiff’s motion to compel. His motion applies to no other documents than those cited by

plaintiff in his motion to compel and thus does not delay or prejudice the adjudication. Mr.

Tukel may intervene into this suit for the limited purpose of claiming attorney-client privilege

and work product doctrine over a limited number of documents.

       Because the motion to intervene has been granted the Court must now decide whether the

36 documents are protected by either the attorney-client privilege or the work product doctrine.

A party may waive either privilege by disclosing confidential information to a third-party,

however, no waiver exists if “(1) the disclosure is inadvertent;” and “(2) the holder of the

privilege or protection took reasonable steps to prevent disclosure.” Fed. R. Evid. 502(b). In

this case, the disclosure was inadvertent. Mr. Tukel had no intentions of allowing the DOJ, his

employer, to read the e-mails he was sending to his personal attorney through his work e-mail

account. (See Tukel’s Mot. and Mem. of Law in Opp’n to Pl.’s Mot. to Compel at 4.) Mr. Tukel




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also took steps to delete the e-mails as they were coming into his account—failing to realize that

his employer had the e-mails. (Id. at 4-5.) Additionally, since discovering that the DOJ still had

access to his e-mails in April 2009, Mr. Tukel has taken reasonable steps to prevent disclosure to

more parties by filing a motion and memorandum of law to intervene. (Id. at 5.)

       Mr. Tukel reasonably expected his e-mails with his personal attorney to remain

confidential. (Id.) Case law in this jurisdiction is not directly on point but New York gives the

Court some direction. “[T]he question of privilege comes down to whether the intent to

communicate in confidence was objectively reasonable.” In re Asia Global Crossing, Ltd., 322

B.R. 247, 258 (S.D.N.Y. 2005). In order for documents sent through e-mail to be protected by

the attorney-client privilege there must be a subjective expectation of confidentiality that is

found to be objectively reasonable. See id. at 257 (outlining four factors to determine

reasonableness; “(1) does the corporation maintain a policy banning personal or other

objectionable use, (2) does the company monitor the use of the employee's computer or e-mail,

(3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation

notify the employee, or was the employee aware, of the use and monitoring policies?”). Each

case should be given an individualized look to see if the party requesting the protection of the

privilege was reasonable in its actions. See Curto v. Med. World Commc’ns, Inc., No. 03-CV-

6327, 2006 WL 1318387, *6 (E.D.N.Y. May 15, 2006); see also O'Connor v. Ortega, 480 U.S.

709, 718 (1987) (“Given the great variety of work environments, . . . the question whether an

employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.”).

       On the facts of this case, Mr. Tukel’s expectation of privacy was reasonable. The DOJ

maintains a policy that does not ban personal use of the company e-mail. Although the DOJ

does have access to personal e-mails sent through this account, Mr. Tukel was unaware that they




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would be regularly accessing and saving e-mails sent from his account. (See Tukel’s Mot. and

Mem. of Law in Opp’n to Pl.’s Mot. to Compel at 4; see also Pl.’s Opp’n to Non-Party Tukel’s

Mot. to Intervene at 5-6.) Because his expectations were reasonable, Mr. Tukel’s private e-mails

will remain protected by the attorney-client privilege.

                                         CONCLUSION

       For the above stated reasons, plaintiff’s motion will be DENIED. Further, Jonathan

Tukel’s motion to intervene will be GRANTED and his motion in opposition to plaintiff’s

motion to compel will be GRANTED.

       Signed by Royce C. Lamberth, United States District Judge, on December 10, 2009.




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