UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

 

JUDICIAL WATCH, INC., )
Plaintiff,
v. ) Civil Case No. 14-1242
U.S. DEPARTMENT OF STATE,
Defendant. )
)
MEMORANDUM OPINION

 

The government continues to assert attorney-client or work-product privilege over twelve
documents requested by Judicial Watch. Six concern a 2012 F reedom of Information Act (FOIA)
request from government watchdog Citizens for Responsibility and Ethics in Washington
(CREW) concerning government officials’ personal email use. Another six address Judicial
Watch’s FOIA request, and specifically the State Department’s pre-February 2, 2015 awareness
of missing and unsearched records from former Secretary Hillary Clinton and her staff. (On
February 2, 2015, months after Clinton quietly turned over 55,000 pages of her missing emails,
and after months of settlement attempts, the Department filed a status report admitting
“additional searches for documents . . . must be conducted,” ECF No. 11.) Judicial Watch argues
the government fails to demonstrate these documents’ protectability, and moves to compel their
production. After reviewing the documents in camera, the Court will grant-in-part and deny-in-

part Judicial Watch’s motion.
I. Legal Standards

The attorney-client privilege protects “confidential communication[s] between attorney
and client .. . made for the purpose of obtaining or providing legal advice.” Fed. Trade Comm’n
v. Boehringer Ingelheim Pham., Inc., 892 F.3d 1264, 1267 (D.C. Cir. 2018) (Kavanaugh, J.). In
other words, it covers both “communications in which an attorney gives legal advice,” and
“communications in which the client informs the attorney of facts that the attorney needs to
understand the problem.” Jd. And it applies with equal force to government counsel, who remain
“fully empowered to engage in privileged communications,” even though the “client” is an entire
Bovemment agency. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758 (D.C. Cir. 2014)
(Kavanaugh, J.) (internal quotation marks omitted) (quoting 1 Restatement (Third) of the Law .-
Governing Lawyers §72, cmt. C, at 551). That said, an organization “cannot be permitted to
insulate its files from discovery simply by sending a ‘cc’ to in-house counsel,” United States ex
rel. Barko v. Halliburton Co., 74 F. Supp. 3d 183, 189 n.13 (D.D.C. 2014) (quoting Minebea Co.
v. Papst, 228 F.R.D. 13, 21 (D.D.C. 2005)); the communication must somehow engage the

attorney in resolving a legal issue.

The work-product privilege shields “documents and tangible things” as long as they
“Twe]re prepared in anticipation of litigation.” Fed. R. Civ. P. 26(b)(3)(A). Yet for “government
lawyers act[ing] . . . as legal advisors protecting their agency clients from the possibility of future
litigation,” that limitation does not do much work. In re Sealed Case, 146 F.3d 881, 885 (D.C.
Cir. 1998). Although “work product doctrine does not extend to every written document
generated by an attorney” for the federal government, Senate of Puerto Rico v. Dep’t of Justice,
823 F.2d 574, 586 (D.C. Cir. 1987), a “specific claim” of litigation need not precipitate the

document, either. Jn re Sealed Case, 146 F.3d at 885-87. Indeed, this Circuit extends largely
inviolate protection to attorney impressions, conclusions, opinions, and theories “integral” for
“legal analyses” and strategic “discussions” alike.! Martin v. Dep’t of Justice, 488 F.3d 446, 455
(D.C. Cir. 2007); see Fed. R. Civ. P. 26(b)(3)(B); Judicial Watch, Inc. v. Dep’t of Justice, 432
F.3d 366, 369 (D.C. Cir. 2005). That renders virtually undiscoverable everything from
prophylactic “memoranda prepared by agency attorneys that analyze[] the legal ramifications of
anew” government procedure, Jn re Sealed Case, 146 F.3d at 885, to “documents” giving
general “tips and advice for litigating” particular kinds of “cases,” id., and even documents “used
for ordinary business purposes” in a particularly litigious field, United States v. Deloitte LLP,
610 F.3d 129, 136-38 (D.C. Cir. 2010). See Office of Thrift Supervision v. Vinson & Elkins, LLP,
124 F.3d 1304, 1307 (D.C. Cir. 1997). The government attorney need only “belie[ve] that
litigation [i]s a real possibility, and that belief must [be] objectively reasonable.” In re Sealed
Case, 146 F.3d at 884. And moreover, “document[s] prepared as work product for one lawsuit
will retain [their] protected status even in subsequent, unrelated litigation.” F\7.C. v. Boehringer

Ingelheim Pharm., Inc., 778 F.3d 142, 149 (D.C. Cir. 2015).

The lone exception to this otherwise expansive privilege arises when the work-product
contains discoverable facts (distinct from legal opinions) and the party seeking discovery
demonstrates both a “substantial need” for the factual information and an inability to collect the
information or its “substantial equivalent” without “undue hardship.” Fed. R. Civ. P. 26(b)(3);

see Office of Thrift Supervision, 124 F.3d at 1307. This safety valve “balance[s] the needs of the

 

1 But not every Circuit. Although most jurisdictions follow this approach, the Fifth Circuit requires anticipation of
litigation be the “primary motivating purpose” behind the document’s creation. Compare United States v. El Paso
Co., 682 F.2d 530, 542 (5th Cir. 1982), with Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 622 (7th Cir.
2010); In re Prof'ls Direct Ins. Co., 578 F.3d 432, 439 (6th Cir. 2009); In re Grand Jury Subpoena, 357 F.3d 900,
907 (9th Cir. 2004); PepsiCo, Inc. v. Baird, Kurtz & Dobson LLP, 305 F.3d 813, 817 (8th Cir. 2002); Maine v. U.S.
Dep't of the Interior, 298 F.3d 60, 68 (1st Cir. 2002); Montgomery Cty. v. Microvote Corp., 175 F.3d 296, 305 (3d
Cir. 1999); In re Sealed Case, 146 F.3d at 884; United States v. Adlman, 134 F.3d 1194, 1195 (2d Cir. 1998); Nat?
Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992).

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adversary system to promote an attorney’s preparation against society’s general interest in
revealing all facts relevant to the resolution of a dispute.” In re Sealed Case, 856 F.2d 268, 273

(D.C. Cir. 1988).
II. Analysis

Assessing the government’s attorney—client privilege claims follows neatly from the legal
standard. Based on the Court’s in camera review, the Court affirms the government’s
withholdings in documents 21 (in part), 76, 896, 897, 899, 900, 901 (in part), 902, and 2475; but
rejects the government’s withholding in the duplicate documents numbered 1326, 1328, and

3636.

Yet the government’s work-product privilege claims are more complicated. As this Court
has already recognized, this case falls within the (thankfully) rare subset of FOIA cases where
“the government’s response ... smacks of outrageous misconduct,” and “merit[s] additional
discovery into the government’s motives.” 344 F. Supp. 3d 77, 80. So as this case “expanded to
question the motives behind Clinton’s private email use while Secretary, and behind the
government’s conduct in this litigation,” the Court authorized discovery on three topics: “(1) :
whether Clinton intentionally attempted to evade FOIA by using a private email while Secretary
of State; (2) whether State’s efforts to settle this case in late 2014 and early 2015 amounted to
bad faith; and (3) whether State adequately searched for records responsive to Judicial Watch’s

FOIA request.” Mem. & Order 1, ECF No. 65.

Within those bounds, this motion presents the “difficult and sensitive” task of drawing “a
precise line between fact and opinion work product.” Jn re Sealed Case, 129 F.3d 637, 638 (D.C.

Cir. 1997) (Tatel, J., dissenting from denial of rehearing in banc); see also Office of Thrift
Supervision, 124 F.3d at 1308. On one hand, the government may properly withhold any opinion
work-product: the documents were undoubtedly prepared in anticipation of litigation since
government attorneys could reasonably anticipate litigation resulting from a FOIA request by
either CREW or Judicial Watch.? Yet the government cannot withhold any fact work-product:

for each document, Judicial Watch shows a substantial need for the otherwise-unobtainable

information.

But this discovery’s extraordinary subject matter blurs the distinction between
discoverable facts and privileged omatons. Consider a hypothetical State Department attorney’ S
pre-February 2015 opinion about the adequacy of the FOIA search i in this case. Ordinarily, that
opinion would fall within the “virtually undiscoverable” realm of opinion work-product. Office
‘of Thrift Supervision, 124 F.3d at 1307. But this case “hingefs] on what specific State employees
knew and when they knew it.” Mem. & Order 5. In other words, this case contains factual
questions answerable only through State officials’ (including attorneys) contemporaneous
thoughts, beliefs, and conclusions. So—in this specific context—the content of that hypothetical
attorney’s opinion is itself a material fact. And since it’s substantially relevant to a key question
in this case and unobtainable from any other source, Judicial Watch can discover it. So too fora
department attorney’s advice about settlement or about Clinton’s use of a personal email for
official business. Indeed, that’s why the Court already took the “exceptional step” of permitting
Judicial Watch to depose a State Department attorney, and further allowed Judicial Watch to
request “all records—including internal communications—concerning this FOIA request” and

“all records relating to the Department’s practices, policies, and actions accounting for Office of

 

2 Judicial Watch and (to a lesser extent) CREW routinely sue the government in this court over FOIA requests. In
2014 alone, Judicial Watch brought forty-four of the 228 FOIA cases filed in this district—according to PACER,
nearly three times as many as the next most frequent plaintiff.

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the Secretary records, including the emails of Hillary Clinton, Cheryl Mills, Huma Abedin, Jacob

Sullivan, and other staff.”” Mem. & Order 8, 16 (emphasis added).

So the Court holds that any contemporaneous documents shedding light on the three
narrow discovery topics—even documents evincing attorney impressions, conclusions, opinions,
and theories—constitute fact work-product. This holding heeds the D.C. Circuit’s instruction that
“not every item which may reveal some inkling of a lawyer’s mental impressions . . . is protected
as opinion”—only impressions “creat[ing] a real, nonspeculative danger of [prejudicially]
revealing the lawyer’s thoughts.” Boehringer Ingelheim, 778 F.3d at 151-52 (internal quotation
marks omitted) (Gusting In re San Juan Dupont Plaza Hotel Fire Litig , 859 F.2d 1007, 1015 ( Ist
Cir. 1988)). Here, the lack of any possible prejudice supports construing these documents as fact
work-product: “the concerns for the integrity of the trial adversarial process are simply not
present in the same way as” in, for instance, the situation where “one lawyer seeks the notes of
opposing counsel taken during witness interviews.” Judicial Watch, Inc. v. U.S. Dep’t of
Commerce, 201 F.R.D. 265, 268 (D.D.C. 2001). Put differently, the law permits deeming the
documents fact work-product since doing so will not affect State’s position in this litigation.
Additionally, construing these documents as fact work-product comports with the purpose of the
work-product privilege: since “there will be no trial in this case and the parties are not
conducting discovery to prepare their case for trial,” Judicial Watch, Inc., 201 F.R.D. at 268,
society’s general interest in revealing relevant facts outweighs any need to protect an attorney’s

private thoughts..

Accordingly, the Court overrides the government’s assertions of work-product privilege

in documents 21 (in part), 187 and 206 (duplicates), 901 (in part), and 1040.
A. Document 21

This record from State’s FOIA document review platform “facilitates and memorializes
th[e] interactions” between the Department’s attorneys and its FOIA division “to ensure that the
Department’s collection and processing of documents compl[ied] with FOIA’s requirements.”

Gov’t’s Opp’n 20, ECF No. 107.

One comment—dated April 8, 2016 at 10:50 AM—“directly summarizes legal advice
provided by” a State attorney “concerning the review of specific documents.” /d. at 21. State

properly withholds this comment under the attorney-client privilege.

But State’s attempt to withhold other comments as opinion work-product fails for the
reasons stated above. Since information about the scope and procedures of State’s search goes to
the heart of this case, the other comments are fact work-product. And since Judicial Watch
shows a substantial need for the otherwise-unobtainable information, see Mot. Compel 18, ECF

No. 102, the Court will order the corresponding portion’s production.

B. Document 76

This email from a department attorney to two department officials “involved in the search
for records potentially responsive to the FOIA request at issue in this case” offers the attorney’s
“confidential legal advice about searches for documents responsive to the FOIA request at issue
in the case.” Gov’t’s Opp’n 23. The government redacts two parts: the body of the email, which
clearly falls within attorney—client privilege; and the filename of a document attached to the
email, which does not. But State adequately justifies the filename’s redaction by explaining that
since the attachment “has been produced and is available on the internet,” unmasking its

filename “would allow anyone to obtain the contents of the document about which [the attorney]
was seeking information for the purposes of providing legal advice,” and thus “reveal portions of
the confidential legal advice.” Gov’t’s Opp’n 24. So the government properly asserts attorney—

client privilege over document 76.
C. Documents 187 & 206

State asserts work-product privilege over these duplicate documents from November
2014 summarizing “ongoing discussion between” State’s FOIA department and an attorney
“concerning the determination of whether the searches conducted in the case . . . were legally
sufficient under FOIA.” Gov’t’s Opp’n 24. Thus this document shines a spotlight on a central
issue in this case: whether State’s efforts to settle this case in late 2014 and early 2015 amounted
to bad faith. And so—for purposes of this case—it is not only fact work-product, but also
discoverable, since Judicial Watch shows a substantial need for the otherwise-unobtainable

information. See Mot. Compel. 19. The Court will order its production.
D. Document 896

This email from a department attorney to department officials “convey[s] the Legal
Adviser’s Office of Management’s position as to what should happen next, in the future,
regarding the processing of [the CREW] FOIA request.” Gov’t’s Opp’n 9. Since the attorney—
client privilege paradigmatically protects this confidential communication providing legal

advice, the government properly withholds it.
E. Document 897

The government asserts attorney—client privilege over this email chain between a
department official and two department attorneys about “how State had processed a different
FOIA request in the past relating to Secretary Clinton’s emails, and how the processing of that

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older request might relate to more recent developments that at least potentially involved the
records of former Secretary Clinton.” Gov’t’s Opp’n 12. Since this Court’s in camera review
confirms the redacted exchange shares facts the attorneys needed to understand a legal problem,

the Court affirms the government’s attorney-client privilege claim.
F. Document 899

In this twelve-email chain, the government invokes attorney—client privilege over two
sentences “drafted by a State Department Attorney-Adviser, and sent to other State Department
attorneys and non-attorney officials . . . on the subject of State’s then ongoing-discussions about
how to process” CREW’s FOIA request. Gov’t’s Opp’n 14. And since the withheld portions
provide confidential legal advice on the next steps in processing that request, the government

properly invokes the privilege.
G. Document 900

The government applies attorney—client privilege to two confidential emails from a
department attorney “recap[ping]” a department official’s legal question and recommending the
official take a particular action. Gov’t’s Opp’n 15-16. Accordingly, it constitutes legal advice

from an attorney properly withheld under the attorney-client privilege.

H. Document 901

This email chain with multiple redactions “reflects then-ongoing deliberations about how
to handle the CREW request.” Gov’t’s Opp’n 16. The government invokes both the work-
product and attorney-client privileges since “State attorneys were engaged solely for the

purposes of applying their legal judgment, and because litigation was reasonably anticipated.”
Gov’t’s Opp’n 16-17. Yet the government never explains which privileges justify which

redactions.

Regardless, the Court’s in camera review determined that the attorney-client privilege
justifies redacting only the emails from department attorneys Sheryl Walter and Gene Smilansky.
In Walter’s first email, she directs another State official to take a particular action; in subsequent
emails, she asks Smilansky a legal question; he summarizes relevant facts and recommends a
particular action; she asks a follow-up; and he responds. Accordingly, their emails fall within
attorney—client privilege. But the remaining redaction—Karen Finegan’s April 4, 2013 email—
cannBFie fairly characterized as a client requesting or an diioraey providing legal aivice,
‘Instead, Finegan volunteers factual information beyond what Walter needed to understand the

legal issue. So her email falls outside attorney-client privilege.

Nor does Finegan’s email fall within the work-product privilege. It amounts to a factual
observation about State’s processing of CREW’s request, not a legal impression, conclusion,
opinion, or theory. And moreover, because the observation relates to when the Department
learned about Clinton’s missing emails, it sheds light on the central question of whether State
attempted to settle this case in bad faith. Finegan’s email accordingly constitutes discoverable
fact work-product since Judicial Watch can show a substantial need for the otherwise
unobtainable information. So the Court will override its redaction of Karen F inegan’s email but

affirm all other withholdings as proper under the attorney-client privilege.
I. Document 902

Citing attorney-client privilege, the government redacts a one-sentence, “high-level

summary of a prior (privileged) conversation” between a department official and a department

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attorney concerning a legal question “about the CREW request.” Gov’t’s Opp’n 18. Because that
summary—shared only with other department officials—falls with the privilege, the government

properly withholds it.
J. Document 1040

Though the government withholds multiple parts of this email chain, Judicial Watch
challenges only the withholding of Clarence Finney’s response, which the government tries
passing-off as opinion work-product. But for purposes of this case, it’s fact work-product: it
provides insight into whether State adequately searched for responsive documents. And even if it
didn’t, nothing in the response can be construed as a legal impression, conclusion, opinion, or
theory—Finney, a non-lawyer, merely makes a matter-of-fact observation about the division of
responsibilities among offices. So this document constitutes discoverable fact work-product
since Judicial Watch demonstrates a substantial need for the otherwise-unobtainable information.

See Mot. Compel 20. The Court will compel its release.
K. Documents 1326, 1328 & 3636

This email chain “reflects a back and forth discussion between” two-department officials
with a department attorney carbon-copied, which the government contends cloaks their entire
initial exchange in attorney-client privilege. Mot. Compel 21. Not so. After all, neither official
engages the attorney, enlists his help in resolving a legal question, or even acknowledges him at
all. And for his part, the attorney never participates in the conversation, making it impossible to
know why the officials copied him on this specific exchange, or if he even read or acknowledged
it. Yet for the attorney—client privilege to apply, the attorney must play a role in the description

of a legal problem or the dissemination of legal advice. And since the proposed withholdings fail

11
to clear that low bar, the government inappropriately invokes the attorney—client privilege. So

the Court will order the documents’ production.
L. Document 2475

The government asserts attorney-client privilege over emails between the State
Department’s deputy legal advisor and the general counsel of the National Archives and Records
Administration soliciting and providing input on a draft of State’s March 2015 letter to Clinton’s
attorneys concerning preservation of her emails. Judicial Watch claims the government waived

the privilege by emailing another executive branch attorney outside the State Department.

True enough, voluntary disclosure to a third party ordinarily vitiates the attorney-client
privilege. But courts in-this district have extended attorney—client privilege to situations like this
one, where counsel for one government agency asks for confidential legal advice from counsel
for another government agency within the executive branch. See Hunton & Williams LLP v. U.S.
Envtl. Prot. Agency, 248 F. Supp. 3d 220, 256 (D.D.C. 2017) (collecting cases). That strikes this
Court as the right approach here too, given the historic significance and singular importance of
the attorney—client privilege, and the salutary effects of interagency cooperation within a unitary
executive. Since the withheld communication remained a confidential request for legal advice

between lawyers in the executive branch, the attorney—client privilege applies.

III. Conclusion

In sum, the Court affirms the government’s assertions of attorney-client privilege in
documents 21 (in part), 76, 896, 897, 899, 900, 901 (in part), 902, and 2475, but rejects the
government’s assertions of attorney—client privilege in the duplicate documents 1326, 1328, and

3636. The Court further rejects the government’s assertion of work-product privilege in

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documents 21 (in part), 187 and 206, 901 (in part), and 1040 (in part). So the Court will grant-in- _

part and deny-in-part Judicial Watch’s motion to compel. A separate order follows.

 

 

a2 2
June /& 2019 Coy 0. Folie,

Royce C. Lamberth
United States District Judge

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