                            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 some documents need to be reviewed in

camera before the Court can make a decision regarding the entire motion to compel.

                                         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

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


                                                  1
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 and 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 . . . .”

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

                                            DISCUSSION

        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.

See 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.)




                                                   2
However, many of the 736 documents requested are protected by various privileges. Finding the

documents are relevant, the Court must then decide if the 697 documents, classified by defendant

as protected by the deliberative process privilege, are in fact protected. (Def.’s Opp’n to Pl.’s

Mot. to Compel at 6.)

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.” See Id. “[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, neither party effectively disputes 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




                                                   3
DOJ components formally asserting the deliberative process privilege over the withheld

documents.” (Def.’s Opp’n to Pl.’s Mot. to Compel at 2.)

       However, there are certain exceptions that apply to the deliberative process privilege,

making the documents 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 is willing to look at a few documents in camera to see if an exception

applies to the documents.

II. Exceptions

       The balancing test, which is typically applied to the privilege, is not needed when (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. 1, 10 (D.D.C. 2000) (Lamberth, J.) (explaining the

deliberative process privilege). Plaintiff essentially raises two separate concerns in his Motion to

Compel and his Reply. The first concern, which plaintiff believes entitles him to the disclosure

of the 736 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. The second concern, which plaintiff also believes removes the deliberate process

privilege, is whether defendant retaliated against plaintiff by attempting to cover-up the leaker(s).

(Pl.’s Reply to Def.’s Opp’n to Pl.’s Mot. to Compel 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.




                                                   4
                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 privilege was fashioned in cases where the decisionmaking process is collateral to the

plaintiff's suit.” Id. at 1424-25.

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

leaked the confidential information as 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

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. v. United States, 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




                                                   5
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).

               2. The Government Misconduct Exception

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

misconduct occurred.” In re Sealed Case, 121 F.3d at 746. 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).




                                                  6
       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.) Again, the government intent

is not directly at issue because the resulting government decisions from the requested documents

are not being challenged and many of the documents requested are not relevant to the

misconduct. However, documents that have a slight chance of revealing misconduct should be

reviewed in camera to see if the privilege should be overridden. See In re Sealed Case, 121 F.3d

at 746. The Court is erring in favor of discovery and therefore, will be viewing many of the

documents in camera.

       The documents at issue fall into 10 various 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.) The documents that will be reviewed in camera are the

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




                                                  7
(See id.) Because it is apparent that leaking confidential information to the press is misconduct it

is possible that these documents may shed light on governmental misconduct.

       Category 3 includes documents related to inquiries by Congress. (Pl.’s Mot. to Compel

at 18-19.) There are “163 e-mails and correspondence among various DOJ employees regarding

how to respond to letters and requests from members of Congress . . . , 34 communications

concerning how to respond to a letter from Plaintiff’s counsel regarding his provision of sensitive

OPR materials to Congress . . . , and 47 documents regarding the confirmation of David Nahmias

to be the United States Attorney for the Northern District of Georgia, including numerous copies

of draft responses to written questions from members of the Senate.” (Def.’s Opp’n to Pl.’s Mot.

to Compel at 9.) Plaintiff has advanced the theory that his interactions with Congress,

particularly Senator Grassley, may have been the start of retaliatory actions against him,

including leaking information to the press. (Pl.’s Reply to Def.’s Opp’n to Pl.’s Mot. to Compel

at 16.) The 163 e-mails and correspondence among various DOJ employees, (Def.’s Opp’n to

Pl.’s Mot. to Compel at 9 n.6), may reveal a motive to leak confidential information to the press

or attempts to limit what is disclosed to Congress to avoid detection of a motive to leak and

therefore will be reviewed in camera.1 The other documents in category 3 are still protected.



1
 DOJ6000183, DOJ6000410-DOJ6000411, DOJ6000432, DOJ6000443-DOJ6000445,
DOJ6000447-DOJ6000448, DOJ6000562-DOJ6000564, DOJ6000629-DOJ6000632,
DOJ6000635, DOJ6000638, DOJ6000643-DOJ6000644, DOJ7000163-DOJ7000164,
DOJ7000223-DOJ7000226, DOJ7000305, DOJ7000386-DOJ7000388, DOJ7000482,
DOJ7000484, DOJ7000526-DOJ7000529, DOJ7000534-DOJ7000545, DOJ7000548-
DOJ7000554, DOJ7000581-DOJ7000582, DOJ7000590-DOJ7000596, DOJ7000834-
DOJ7000842, DOJ7000871-DOJ7000873, DOJ7001158-DOJ7001166, DOJ7002024-
DOJ7002040, DOJ7002053-DOJ7002054, DOJ7002061-DOJ7002064, DOJ7002076-
DOJ7002077, DOJ7002080, DOJ7002082-DOJ7002083, DOJ7002098-DOJ7002100,
DOJ7002105-DOJ7002106, DOJ7002121-DOJ7002129, DOJ7002151-DOJ7002154,
DOJ7002157-DOJ7002187, DOJ7002194-DOJ7002195, DOJ7002201-DOJ7002206,
DOJ7002247-DOJ7002248, DOJ7002290-DOJ7002297, DOJ7002315-DOJ7002320,
DOJ7002324-DOJ7002333, DOJ7002474-DOJ7002526, DOJ7002723-DOJ7002733,


                                                 8
        Category 4 includes “documents and correspondence to/from non-OIG/OPR government

officials regarding those investigations.” (Pl.’s Mot. to Compel at 19.) Category 6 includes

“documents related to the Public Integrity investigation/criminal charges against plaintiff.” (Pl.’s

Mot. to Compel at 20-21.) Documents in these categories include “45 e-mails and documents

between DOJ officials regarding how the Department should proceed with various investigations

and activities”—these documents will be reviewed in camera.2 These documents are relevant to

opinions people have about plaintiff and may lead to a motive or intent to leak information about

plaintiff, shedding light on potential government misconduct. The documents are directly

relevant to the OPR investigation in that they discuss potential misconduct on the part of

plaintiff.

        Category 5 includes “Documents related to [Plaintiff]’s September 9, 2003 testimony

before the Senate Finance Committee.” (Pl.’s Mot. to Compel at 20.) These documents may

also reveal a motive on the part of a DOJ employee to disclose information to the press,

revealing misconduct. Specifically this “category consists of 31 e-mails between DOJ officials

discussing how the Department should respond to Congressional subpoena issued to Plaintiff,

under which he was required to testify before a Senate subcommittee.” (Def.’s Opp’n to Pl.’s

Mot. to Compel at 9-10.) These 31 e-mails will be reviewed in camera.3 (Id. at 10 n.9.)




DOJ7002987.
2
  DOJ6000221, DOJ6000455-DOJ6000459, DOJ6000466-DOJ6000467, DOJ6000565-
DOJ6000604, DOJ6000612-DOJ6000613, DOJ7000088-DOJ7000089, DOJ7000311-
DOJ7000314, DOJ7000429, DOJ7000444-DOJ7000445, DOJ7000567, DOJ7000578,
DOJ7000583-DOJ7000587, DOJ7001082-DOJ7001083, DOJ7002529-DOJ7002563,
DOJ7002647-DOJ7002654, DOJ7002740.
3
  DOJ7000258-DOJ7000278, DOJ7000284-DOJ7000293, DOJ7000316-DOJ7000319,
DOJ7002023, DOJ7002130-DOJ7002135, DOJ7002155-DOJ7002156, DOJ7002309-
DOJ7002314.


                                                 9
       Category 7 includes “Documents related to personnel actions regarding Mr. Convertino.”

(Pl.’s Mot. to Compel at 21.) Specifically, this “category consists of 83 e-mails and other

documents concerning potential personnel actions to be taken with respect to Plaintiff.” (Def.’s

Opp’n to Pl.’s Mot. to Compel at 12 n.12.) These documents, like the other categories may

reveal the misconduct leading to a motive to leak the confidential information and will be

reviewed in camera.4

       Category 8 includes “Documents related to the OPR investigation.” (Pl.’s Mot. to

Compel at 21-22.) This category consists of “103 documents created as part of the OPR

investigation into Plaintiff.” Although the Court believes it is highly unlikely that these

documents will lead to anything that reveals misconduct on the part of the leaker(s), the

documents will be reviewed in camera5 because there is evidence that it was an OPR letter that

was released to the press.

       Category 9 includes “documents related to multiple or unspecified investigations.” (Pl.’s

Mot. to Compel at 22-23.) Without knowing which investigations these go to, they will be

reviewed in camera. Category 10 includes “Documents related to Koubriti litigation and file

4
  DOJ5000461, DOJ5000522-DOJ5000523, DOJ7000004-DOJ7000034, DOJ7000053-
DOJ7000079, DOJ7000124-DOJ7000125, DOJ7000131-DOJ7000132, DOJ7000143-
DOJ7000145, DOJ7000153-DOJ7000159, DOJ7000210, DOJ7000249-DOJ7000257,
DOJ7000279-DOJ7000283, DOJ7000302-DOJ7000304, DOJ7000308, DOJ7000322-
DOJ7000326, DOJ7000375-DOJ7000385, DOJ7000402-DOJ7000411, DOJ7000427-
DOJ7000428, DOJ7000430, DOJ7000442-DOJ7000443, DOJ7000519-DOJ7000521,
DOJ7001138, DOJ7001198-DOJ7001202, DOJ7002042-DOJ7002044, DOJ7002049-
DOJ7002051, DOJ7002200, DOJ7002981-DOJ7002984.
5
  DOJ5002278-DOJ5002282, DOJ6000336-DOJ6000344, DOJ6000460-DOJ6000463,
DOJ7000559, DOJ7000570-DOJ7000571, DOJ7000588-DOJ7000589, DOJ7000601-
DOJ7000670, DOJ7000673-DOJ7000681, DOJ7000684, DOJ7000686-DOJ7000724,
DOJ7000728-DOJ7000732, DOJ7000774-DOJ7000776, DOJ7000787-DOJ7000797,
DOJ7000800-DOJ7000833, DOJ7000865-DOJ7000866, DOJ7000874, DOJ7000879-
DOJ7000925, DOJ7000927-DOJ7000953, DOJ7001075, DOJ7001078-DOJ7001081,
DOJ7001086-DOJ7001087, DOJ7002136-DOJ7002139, DOJ7002197-DOJ7002199,
DOJ7002246.


                                                 10
review.” (Pl.’s Mot. to Compel at 23.) The documents in these two categories consist of 92 e-

mails and other documents created as part of the Department’s post-trial work in Koubriti and its

review of other cases worked on by Mr. Convertino.”6 (Def.’s Opp’n to Pl.’s Mot. to Compel at

14.)

       The documents that will be reviewed in camera are documents that may show

government misconduct. Although the ultimate government decisions that resulted from these

documents are not being questioned, only the decision to leak the confidential information is

being questioned, the documents may reveal government misconduct. They are documents that

are relevant to the cause of action, a potential Privacy Act violation. Therefore, the documents

that are included are documents that are related to plaintiff directly and are not related to the OIG

investigation. The deliberations before the investigations are not being released to plaintiff

because plaintiff has not demonstrated that it is reasonable to suspect that government

misconduct took place during the OIG investigation and the intent of the government is not at

issue in these investigations. (Def.’s Opp’n to Pl.’s Mot. to Compel at 16.) The documents will

be reviewed to see if they discuss anything other than what they purport to discuss in the

privilege log. (Id. Ex. 2.)



6
 DOJ6000505-DOJ6000507, DOJ7000085-DOJ7000087, DOJ7000131-DOJ7000133,
DOJ7000149-DOJ7000152, DOJ7000165-DOJ7000167, DOJ7000217-DOJ7000222,
DOJ7000251, DOJ7000327-DOJ7000337, DOJ7000436-DOJ7000441, DOJ7000480-
DOJ7000481, DOJ7000516-DOJ7000518, DOJ7000522-DOJ7000525, DOJ7000733-
DOJ7000773, DOJ7000962-DOJ7001021, DOJ7001088, DOJ7001119-DOJ7001131,
DOJ7001134-DOJ7001137, DOJ7001139-DOJ7001150, DOJ7001170-DOJ7001191,
DOJ7001203-DOJ7001223, DOJ7002016-DOJ7002022, DOJ7002045-DOJ7002047,
DOJ7002055, DOJ7002085-DOJ7002094, DOJ7002101-DOJ7002102, DOJ7002107-
DOJ7002113, DOJ7002115-DOJ7002120, DOJ7002143-DOJ7002150, DOJ7002253-
DOJ7002264, DOJ7002302-DOJ7002305, DOJ7002321-DOJ7002343, DOJ7002391-
DOJ7002472, DOJ7002527-DOJ7002528, DOJ7002564-DOJ7002588, DOJ7002590-
DOJ7002640, DOJ7002655-DOJ7002722, DOJ7002734-DOJ7002739, DOJ7002741-
DOJ7002893, DOJ7002988-DOJ7002990.


                                                 11
       The remaining categories (1 and 2 and parts of 3) are 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.)

                                         CONCLUSION

       For the above stated reasons, some documents will be reviewed in camera before a

decision is made in regards to plaintiff’s entire motion.

       SO ORDERED.

       Signed by Royce C. Lamberth, United States District Judge, on November 12, 2009.




                                                 12
