                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
UNITED STATES OF AMERICA,     )
                              )
          v.                  )    Criminal Action No. 06-89 (RWR)
                              )
NIZAR TRABELSI,               )
                              )
          Defendant.          )
______________________________)

                  MEMORANDUM OPINION AND ORDER

       Defendant Nizar Trabelsi moved to compel the government

to produce correspondence and documents sent between the United

States and Belgium addressing Trabelsi’s extradition.   After

full briefing and oral argument, the Court issued on May 8, 2015

a memorandum opinion and order granting Trabelsi’s motion and

directing the government to produce a specific category of

correspondence sent between the United States and Belgium.   The

government now moves for reconsideration of the Court’s May 8,

2015 decision, once again claiming that the requested

communications are privileged.    The government also requests in

camera ex parte review and a preemptive sealing order covering

any documents produced to Trabelsi.   Because a portion of the

responsive discovery may contain material protected by the

opinion work product privilege, and because the government has

sufficiently shown that harm to the United States’ foreign

relations may flow from unfettered production of the requested
                                -2-


correspondence, the government’s motion for reconsideration will

be denied in part and granted in part.

                            BACKGROUND

       The relevant background can be found in the Court’s

May 8, 2015 Memorandum Opinion and Order, ECF No. 109.     Briefly,

Trabelsi was convicted in Belgium of conspiracy, explosives,

firearms, and other offenses and sentenced to ten years

imprisonment.   While Trabelsi was serving his sentence in

Belgium, the U.S. government secured an initial indictment and

then a superseding indictment charging Trabelsi with conspiracy,

weapons, and terrorism offenses.   After receiving the U.S.

government’s formal request for Trabelsi’s extradition under the

superseding indictment, Belgium issued a decision in

November 2011 granting the request.   After he completed his

sentence in Belgium, Trabelsi was extradited to the United

States in October 2013.

     In the fall of 2014, Trabelsi filed a motion to dismiss the

superseding indictment, alleging that this prosecution violates

several provisions of the United States’ extradition treaty with

Belgium.   Immediately following the initial briefing on

Trabelsi’s motion to dismiss, Trabelsi filed in January of 2015

a motion to compel the government to produce correspondence and

documents related to his extradition sent between the United

States and Belgium.   He alleges that Belgium declined to
                                 -3-


extradite him on the initial indictment, and that the government

made misrepresentations to Belgium that induced Belgium to

extradite him on the superseding indictment.    The government

opposed, arguing that the requested documents were not relevant

to this case, were not discoverable, and were privileged.

Following full briefing and oral argument, the Court issued on

May 8, 2015 a memorandum opinion and order (“5/8/15 Order”)

granting Trabelsi’s motion and ordering the government to

produce a specific set of correspondence.

     The government now moves for reconsideration of the 5/8/15

Order.    The government once again asserts that the requested

correspondence is privileged, reiterating several arguments

presented in the government’s opposition to Trabelsi’s motion to

compel and presenting several new claims of privilege.    The

government requests alternatively that it be permitted to review

the responsive documents and then produce for in camera ex parte

review any material the governments deems to be producible under

Brady v. Maryland, 373 U.S. 83 (1963).    The government also

requests that any documents ultimately produced to Trabelsi be

sealed.    Trabelsi opposes the motion in its entirety.

                             DISCUSSION

     “[M]otions for reconsideration may be entertained in

criminal cases and [courts] have adopted the same standard of

review that applies to . . . motions [to alter or amend a
                                -4-


judgment] filed in civil cases pursuant to Rule 59(e) of the

Federal Rules of Civil Procedure.”    United States v. Cabrera,

699 F. Supp. 2d 35, 40 (D.D.C. 2010).    “However, in civil cases

‘[t]he standard of review for interlocutory decisions differs

from the standards applied to final judgments under Federal

Rules of Civil Procedure 59(e) and 60(b).’”    United States v.

Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (quoting Williams v.

Savage, 569 F. Supp. 2d 99, 108 (D.D.C. 2008)).

“[R]econsideration of an interlocutory decision is available

under the standard ‘as justice requires.’”    Judicial Watch v.

Dep't of Army, 466 F. Supp. 2d 112, 123 (D.D.C. 2006) (citations

omitted).

     That standard asks whether reconsideration is
     warranted under the totality of the circumstances,
     including such factors as whether the court has
     patently misunderstood a party, has made a decision
     outside the adversarial issues presented to the court
     by the parties, has made an error not of reasoning,
     but of apprehension, or where a controlling or
     significant change in the law or facts has occurred
     since the submission of the issue to the court.

United States v. McCallum, 885 F. Supp. 2d 105, 115 (D.D.C.

2012), aff'd, 721 F.3d 706 (D.C. Cir. 2013) (internal quotation

marks and citation omitted).   “Motions for reconsideration are

committed to the sound discretion of the trial court.”    Judicial

Watch, Inc. v. U.S. Dep't of Energy, 319 F. Supp. 2d 32, 34

(D.D.C. 2004) (citing Firestone v. Firestone, 76 F.3d 1205, 1208

(D.C. Cir. 1996)).
                                -5-


     The moving party bears the burden “to show that

reconsideration is appropriate and that harm or injustice would

result if reconsideration were denied.”   United States v.

Hemingway, 930 F. Supp. 2d 11, 13 (D.D.C. 2013).   However, “a

losing party may not use a . . . motion [for reconsideration] to

raise new issues that could have been raised previously.”

Kattan by Thomas v. District of Columbia, 995 F.2d 274, 276

(D.C. Cir. 1993).   “‘[W]here litigants have once battled for the

court’s decision, they should neither be required, nor without

good reason permitted, to battle for it again.’”   Hoffman v.

District of Columbia, 681 F. Supp. 2d 86, 90 (D.D.C. 2010)

(quoting Singh v. George Wash. Univ., 383 F. Supp. 2d 99, 101

(D.D.C. 2005)); see also New York v. United States, 880 F. Supp.

37, 38 (D.D.C. 1995) (stating that a motion for reconsideration

is “not simply an opportunity to reargue facts and theories upon

which a court has already ruled”).

     In its motion for reconsideration, the government argues

that the communications subject to production under the 5/8/15

Order are protected by several privileges, including the

attorney-client, work product, and deliberative process

privileges.   The government requests that, in the event that the

government must produce documents responsive to the 5/8/15

Order, the Court permit the government to produce for in camera

ex parte review only those documents the government deems to be
                                  -6-


Brady material.   Finally, in the event that any correspondence

is ultimately produced to Trabelsi, the government requests that

the documents and all information contained in them be subject

to a sealing order.

I.   CLAIMS OF PRIVILEGE

     Generally, “[t]he common law -- as interpreted by United

States courts in the light of reason and experience -- governs a

claim of privilege[.]”     Fed. R. Evid. 501.   “Although Rule 501

manifests a congressional desire to provide the courts with the

flexibility to develop rules of privilege on a case-by-case

basis, . . . the Supreme Court has been ‘disinclined to exercise

this authority expansively[.]’”     In re Lindsey, 158 F.3d 1263,

1268 (D.C. Cir. 1998) (quoting Univ. of Pa. v. EEOC, 493 U.S.

182, 189 (1990)).   “[E]xceptions to the demand for every man's

evidence are not lightly created nor expansively construed, for

they are in derogation of the search for truth.”      United States

v. Nixon, 418 U.S. 683, 710 (1974).     Additionally, “[i]t is the

manifest duty of the courts to vindicate [constitutional]

guarantees [afforded to criminal defendants], and to accomplish

that it is essential that all relevant and admissible evidence

be produced.”   Id. at 711.    Further, as the D.C. Circuit has

recognized, “openness in government has always been thought

crucial to ensuring that the people remain in control of their
                                -7-


government.”   In re Lindsey, 158 F.3d at 1274 (internal

quotation omitted).

     The government once again argues that the requested

communications are generally “privileged” and were prepared with

the expectation of confidentiality.   Govt.’s Mot. for

Reconsideration, ECF No. 112 at 5.    The government asserts that

the responsive correspondence “focuses on communications . . .

that . . . are entitled to treaty-based and common law

protections[,]” id. at 3, and should be protected in its

entirety.   Additionally, the government asserts that disclosure

of the relevant documents will have a chilling effect on “the

United States’ many essential extradition and mutual assistance

relationships with other countries,” id., and that “the Kingdom

of Belgium has registered its serious concerns,” id. at 4.

     Here, the government does not allege that the court
     misunderstood the parties' arguments or considered an
     issue not presented by the parties, or that there was
     an intervening change in controlling law. At best,
     the government appears to be making a second attempt
     to cite relevant law and facts in support of an
     argument that has already been rejected on the merits.

United States v. Hemingway, 930 F. Supp. 2d 11, 13 (D.D.C.

2013).   As was discussed in the 5/8/15 Order, the government

cannot simply say that documents as a whole are “ordinarily

privileged,” Govt.’s Mot. for Reconsideration at 5, and are

exempt from discovery without providing some recognized legal

support for this claim.   See 5/8/15 Order at 11-13.
                                  -8-


Expectations of confidentiality, even those shared by a foreign

sovereign, and “anticipation of the nondisclosure of . . .

candid communications,” Govt.’s Mot. for Reconsideration at 4,

are not enough to establish a legally recognizable privilege. 1

Thus, reconsideration of the government’s general privilege and

confidentiality arguments is not warranted.

     The government also argues that the requested

correspondence is protected by three legally recognized

privileges, which the government has now uncovered through its

review of documents potentially responsive to the 5/8/15 Order.

The government highlights three “traditional legal privileges”

that purportedly protect the documents from disclosure --

attorney-client privilege, work product privilege, and

deliberative process privilege.    Govt.’s Mot. for

Reconsideration at 4, 6-9.

     A.   Attorney-Client Privilege

     The government first argues that the correspondence

responsive to the 5/8/15 Order is protected by attorney-client

privilege.   “The attorney-client privilege protects [certain]

confidential communications made between clients and their


1    The government also seems to assert that the requested
communications are protected by Belgian law and should therefore
be exempt from disclosure. See Govt.’s Mot. for Reconsideration
at 5. The government does not, however, explain why a foreign
sovereign’s law should shield the relevant correspondence from
discovery in a U.S. federal court.
                                  -9-


attorneys[.]”     In re Lindsey, 158 F.3d at 1267.   The purpose of

this privilege “is to encourage full and frank communication

between attorneys and their clients and thereby promote broader

public interests in the observance of law and administration of

justice.”   Upjohn Co. v. United States, 449 U.S. 383, 389

(1981).   The attorney-client privilege applies to communications

between an attorney acting in her capacity as a professional

legal adviser and the client.     See In re Lindsey, 158 F.3d at

1270 (“[O]nly communications that seek ‘legal advice’ from ‘a

professional legal adviser in his capacity as such’ are

protected.” (quoting 8 John Henry Wigmore, Evidence in Trials at

Common Law § 2292, at 554 (McNaughton rev. 1961))).     In other

words,

      the privilege applies only if the person to whom the
      communication was made is “a member of the bar of a
      court” who “in connection with th[e] communication is
      acting as a lawyer” and the communication was made
      “for the purpose of securing primarily either (i) an
      opinion on law or (ii) legal services or (iii)
      assistance in some legal proceeding.”

Id. (quoting In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir.

1984)).   The party asserting the attorney-client privilege has

the “burden of proving that the communications are protected.”

Id.   Further, when attempting to invoke the attorney-client

privilege, a party must prove each required element of the

privilege and “[a] blanket assertion of the privilege will not

suffice.”   Id.
                                 -10-


     Disclosure of a client’s communications to third parties

ordinarily “waives the protection of the [attorney-client]

privilege[].”   Id. at 1282.   However, the “common interest”

doctrine of the attorney-client privilege continues to offer the

protections of the privilege to third-party disclosures in which

the “communications between a lawyer and two or more clients

[were] regarding a matter of common interest.”      In re Sealed

Case, 29 F.3d 715, 719 (D.C. Cir. 1994) (citing In re Auclair,

961 F.2d 65, 69 (5th Cir. 1992)).       The common interest doctrine

is applicable only after a party has first shown an established

attorney-client relationship, and only where the same attorney

represents both of the clients.    See Chesapeake Bay Found., Inc.

v. U.S. Army Corps of Eng’rs, 722 F. Supp. 2d 66, 74 (D.D.C.

2010).

     Here, the government argues -- citing In re Lindsey -- that

the relevant communications, “which [were] made pursuant to the

terms of a formal agreement obligating the countries to assist

one another with extraditions, are protected under the common

interest doctrine of the attorney-client privilege.”      Govt.’s

Mot. for Reconsideration at 6.    The government asserts that

“many communications between extradition partners . . . provide

the requesting country with advice concerning the legal

requirements of the requested country” and are therefore

“properly shielded by the common interest doctrine.”      Id.   The
                               -11-


government also cites to the Declaration of Kenneth J. Harris

(“Harris Declaration”), Ex. 1, Govt.’s Mot. for Reconsideration,

which includes general descriptions of the extradition

relationship between the United States and Belgium and the types

of assistance rendered by their respective authorities.

     Beyond blanket assertions of attorney-client privilege and

general descriptions of inter-governmental assistance, see,

e.g., Harris Declaration at 4-5 (discussing how attorneys

working for the U.S. Department of Justice’s Office of

International Affairs (“OIA”) both give advice to and receive

guidance from attorneys for foreign governments), the government

does not squarely address which actors serve as the “attorneys”

and which entities serve as the “clients” in this case.   At

best, it appears that the government is arguing that U.S. and

Belgian officials provided legal advice and assistance to one

another regarding Trabelsi’s extradition, rendering U.S. and

Belgian officials as both the “attorneys” and the “clients.” 2

     No authority cited by the government establishes that this

privilege contemplates this type of mutual governmental

assistance as an attorney-client relationship.   The United




2    In other words, an OIA attorney may at any given time
during the extradition process be “representing” the United
States, the Kingdom of Belgium, and Belgian officials, while
both the OIA attorney and the United States are simultaneously
“represented by” those same Belgian officials.
                                 -12-


States and Belgium are, in the government’s words, “extradition

partners” -- their attorneys often “solicit and receive advice”

from one another as they work together to effectuate an

extradition.   See Harris Declaration at 4.   The government fails

to cite to any case recognizing the existence of an attorney-

client relationship in this type of circumstance.    The

government also fails to cite any case supporting the

proposition that the mere fact that the governmental actors

sending and receiving this information are attorneys is

sufficient to establish an attorney-client relationship.

Additionally, although communications between an attorney and a

qualifying U.S. governmental client may in some cases be covered

by attorney-client privilege, see, e.g., In re Lindsey, 158 F.3d

at 1269-70, the government points to no case that extends this

privilege to communications between an attorney working for the

U.S. government and a foreign official.

     In the absence of any case law or other legal authority

recognizing this type of inter-governmental assistance

relationship as one between an attorney and a client, and in

light of the general rule that privileges “are not lightly

created nor expansively construed,” United States v. Nixon, 418

U.S. at 710, the Court declines to expand the existing scope of

the attorney-client privilege.    Because the government has

failed to demonstrate a qualifying attorney-client relationship,
                               -13-


the government is not entitled to withhold any of the responsive

correspondence under the cloak of the attorney-client privilege.

     B.    Work Product Privilege

     The government also argues that the relevant correspondence

is protected by the work product privilege.    Though the work

product privilege is most frequently invoked in the civil

context, the attorney work-product doctrine applies to criminal

as well as civil litigation.   See United States v. Clemens, 793

F. Supp. 2d 236, 244 (D.D.C. 2011) (citing United States v.

Nobles, 422 U.S. 225, 236 (1975)).    The work product privilege

“promotes the adversary process by insulating an attorney’s

litigation preparation from discovery.”    United States v.

Deloitte LLP, 610 F.3d 129, 139-40 (D.C. Cir. 2010).    However,

“not ‘all written materials obtained or prepared by an

adversary’s counsel with an eye toward litigation are

necessarily free from discovery in all cases.’”    Clemens, 793 F.

Supp. 2d at 244 (quoting Hickman v. Taylor, 329 U.S. 495, 511

(1947)).   Instead, “attorney work-product is discoverable if the

party seeking discovery can make a sufficient showing of

necessity.”   Id. (internal quotation omitted).   Qualifying work

product “is protected from discovery unless ‘the one who would

invade that privacy’ carries the burden of ‘establish[ing]

adequate reasons to justify production through a subpoena or
                                -14-


court order.’”   Deloitte LLP, 610 F.3d at 135 (quoting

Hickman, 329 U.S. at 512).

     There are two types of work product that may be subject to

discovery -- “fact” and “opinion.”      “Where relevant and non-

privileged facts remain hidden in an attorney's file and where

production of those facts is essential to the preparation of

one's case, discovery may properly be had.”      Hickman, 329 U.S.

at 511.   “A party can discover fact work product upon showing a

substantial need for the materials and an undue hardship in

acquiring the information any other way.”      Dir., Office of

Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307

(D.C. Cir. 1997).   As was discussed in the 5/8/15 Order,

Trabelsi has demonstrated a substantial need for the requested

correspondence, as it may expose the government duplicity he

claims in support of his motion to dismiss the indictment.

Trabelsi has also shown it is impossible to obtain the requested

correspondence in another manner.      Thus, the work product

privilege may not shield any fact work product contained within

the requested correspondence.

     Opinion work product, though, enjoys greater protection.

As the D.C. Circuit has recognized in the civil context,

“opinion work product[] ‘is virtually undiscoverable.’”

Deloitte LLP, 610 F.3d at 135 (quoting      Dir., Office of Thrift

Supervision v. Vinson & Elkins, LLP, 124 F.3d at 1307).
                                -15-


“Discovery of ‘opinion’ work product is therefore permissible

only where a party has made ‘a far stronger showing of necessity

and unavailability by other means’ than would otherwise be

sufficient for discovery of ‘fact’ work product.”    Clemens, 793

F. Supp. 2d at 244 (quoting Upjohn, 499 U.S. at 402).

     Trabelsi has made a strong showing of both necessity and

unavailability of the requested correspondence --

“correspondence . . . sent between the United States and Belgium

. . . addressing the charges in the initial and superseding

indictments and whether the Extradition Treaty between the

United States and Belgium may or may not permit extradition.”

5/8/15 Order at 13-14.   “Trabelsi has sufficiently demonstrated

that there is a reasonable probability that production of the

requested materials could alter the outcome of the instant

criminal prosecution; that is, correspondence reflecting that

Belgium granted extradition based on misrepresentations of the

charged offenses could support Trabelsi’s motion to dismiss the

indictment.”   Id. at 10.   Opinion work product may, in many

cases, be protected.   However, if the work product at issue

demonstrates potential violations of an extradition treaty in a

way that might warrant dismissal of the superseding indictment,

the privilege must give way.    The government cannot shield what

would otherwise be Brady material behind claims of opinion work

product privilege.   Accordingly, the government may prepare a
                               -16-


privilege log, along with both redacted and unredacted copies of

the relevant correspondence, to submit to the Court for in

camera review. 3

     C.   Deliberative Process Privilege

     The government also asserts that the requested

correspondence is protected from discovery by the deliberative

process privilege.   “Since the beginnings of our nation,

executive officials have claimed a variety of privileges to

resist disclosure of information the confidentiality of which

they felt was crucial to fulfillment of the unique role and

responsibilities of the executive branch of our government.”    In

re Sealed Case, 121 F.3d 729, 736 (D.C. Cir. 1997). 4   The

deliberative process privilege “allows the government to

withhold documents and other materials that would reveal

advisory opinions, recommendations[,] and deliberations

comprising part of a process by which governmental decisions and

policies are formulated.”   Id. at 737 (internal quotation




3    The D.C. Circuit has recognized that in camera review may
be used “to determine whether [a document] is entirely work
product.” Deloitte LLP, 610 F.3d at 139.
4    Although the deliberative process privilege occasionally
arises in criminal cases, it is most commonly invoked in civil
FOIA cases. See Nancy Hollander & Barbara E. Bergman,
Everytrial Criminal Defense Resource Book § 27:9 (Thomson
Reuters) (2013). “Because the deliberative process privilege
often arises in the FOIA context, courts deciding deliberative
process issues in non-FOIA contexts regularly rely on FOIA cases
for their analyses.” Id.
                                -17-


omitted).    The purpose of this privilege is to “‘prevent injury

to the quality of agency decisions’ by allowing government

officials freedom to debate alternative approaches in private.”

Id. (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151

(1975)).    Given the privilege’s purpose of promoting and

“protect[ing] creative debate and candid consideration of

alternatives within an agency,” the deliberative process

privilege protects “inter- and intra-agency communications” from

disclosure.    Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 772

(D.C. Cir. 1978) (emphasis added).

       The deliberative process privilege is not absolute; rather,

it is “relative to the need demonstrated for the information.”

Northrop Corp. v. McDonnel Douglas Corp., 751 F.2d 395, 404

(D.C. Cir. 1984).    “The deliberative process privilege is a

qualified privilege and can be overcome by a sufficient showing

of need.    This need determination is to be made flexibly on a

case-by-case, ad hoc basis.”    In re Sealed Case, 121 F.3d at

737.    This privilege also “does not shield documents that simply

state or explain a decision the government has already made or

protect material that is purely factual, unless the material is

so inextricably intertwined with the deliberative sections of

documents that its disclosure would inevitably reveal the

government's deliberations.”    Id.    Further, “the deliberative

process privilege does not protect documents in their entirety;
                                 -18-


if the government can segregate and disclose non-privileged

. . . information with a document, it must.”     Loving v. Dep’t of

Defense, 550 F.3d 32, 38 (D.C. Cir. 2008) (citing Army Times

Publ’g Co. v. Dep’t of Air Force, 998 F.2d 1067, 1071 (D.C. Cir.

1993)).

       The government argues that the requested correspondence

sent between the United States and Belgium “reflect[s] the

deliberative process of government officials” and is therefore

insulated from discovery.    Govt.’s Mot. for Reconsideration at

7-8.    The government again cites Federal Rule of Criminal

Procedure 16(a)(2) as support for its argument.     See Govt.’s

Mot. for Reconsideration at 6.    However, the 5/8/15 Order

explicitly rejected the assertion that the relevant

communications are “internal government documents” captured by

this rule.    See 5/8/15 Order at 12 n.1.   The Court has already

ruled that the requested correspondence is not the type of

intra- or inter-agency communication that is protected by the

deliberative process privilege, see id. at 12, and the Court

will not offer the government yet another chance to argue that

point.    Even if these were the types of communications protected

by the deliberative process privilege, the privilege “can be

overcome by a sufficient showing of need.”     In re Sealed Case,

121 F.3d at 737.    As is particularly relevant here, “where there

is reason to believe the documents sought may shed light on
                               -19-


government misconduct, ‘the privilege is routinely denied,’ on

the grounds that shielding internal government deliberations in

this context does not serve ‘the public's interest in honest,

effective government.’”   Id. at 738 (quoting Texaco Puerto Rico,

Inc. v. Dep’t of Consumer Affairs, 60 F.3d 867, 885 (1st Cir.

1995)).

      Thus, the government cannot withhold correspondence

responsive to the 5/8/15 Order under the deliberative process

privilege or Federal Rule of Criminal Procedure 16(a)(2).

II.   REQUEST FOR IN CAMERA EX PARTE REVIEW

      The government requests that, if it is in fact required to

produce any portion of the requested correspondence, the

government be permitted to submit documents to the Court for in

camera ex parte review.

      “At any time [a] court may, for good cause, deny, restrict,

or defer discovery or inspection, or grant other appropriate

relief.”   Fed. R. Crim. P. 16(d)(1).   The Supreme Court has

recognized that in camera review for Brady material can “serve

[a defendant]’s interest without destroying the [government]’s

need to protect the confidentiality of those involved[.]”

Pennsylvania v. Ritchie, 480 U.S. 39, 61 (1987).    The use of in

camera ex parte review for Brady material has also been

employed, in certain circumstances, by other circuits.    See,

e.g., United States v. Mehanna, 735 F.3d 32, 65-66 (1st Cir.
                               -20-


2013), cert. denied, 135 S. Ct. 49 (2014) (affirming the

district court’s denial of a defendant’s motion to compel issued

after the district court reviewed, for potential Brady material,

the government’s in camera submission).    Similarly, the D.C.

Circuit has itself employed in camera ex parte review in the

criminal context.   See, e.g., United States v. Yunis, 867 F.2d

617, 624 (D.C. Cir. 1989) (discussing the Circuit’s in camera ex

parte review of classified information).

     Here, the government argues that in camera ex parte review

“would more effectively balance between the concerns arising

from the confidentiality of the requested documents and the

concerns alleged by the defense for access to those materials.”

Govt.’s Mot. for Reconsideration at 13.    The government asserts

that substantial damage to the United States’ relationship with

Belgium, as well as to the United States’ foreign relations with

other extradition partners, might flow from traditional

production of the requested correspondence.    The government also

notes Belgium’s explicit objection to production of the

requested correspondence and concerns regarding access to

correspondence sent with an expectation of confidentiality.

Although the United States’ and Belgium’s concerns alone do not

constitute sufficient grounds for withholding the relevant

correspondence, they certainly weigh in favor of in camera ex

parte review.   In light of the potential harm to the United
                               -21-


States’ foreign relations with Belgium and other nations posed

by unfettered disclosure, as well as the need to balance the

government’s expressed interests with Trabelsi’s interest in

obtaining the requested correspondence, in camera ex parte

review is appropriate in this case.

     The government further requests that it be permitted to

review the responsive correspondence for Brady material and then

produce to the Court for in camera ex parte review only those

materials the government deems necessary.     The government

asserts that the Court’s 5/8/15 Order “departs from the ordinary

course of criminal discovery,” Govt.’s Mot. for Reconsideration

at 11, and argues that the government should be entrusted with

the responsibility of determining whether any portion of the

requested correspondence qualifies as Brady material.

     The government’s continued resistance to producing the

requested correspondence raises concerns regarding full

compliance with the 5/8/15 Order.     The government has thus far

refused to acknowledge that correspondence containing

misrepresentations regarding Trabelsi’s extradition and

prosecution under the superseding indictment may constitute

Brady material.   Indeed, in its reply to Trabelsi’s opposition

to the instant motion, the government continues to argue that

the correspondence subject to the 5/8/15 Order “cannot

constitute exculpatory material under Brady[.]”     Govt.’s Reply
                                 -22-


to Def.’s Opp’n to Govt.’s Mot. for Reconsideration, ECF No. 114

at 13.   If there is any merit to the argument that tricking

Belgium into believing the superseding indictment states an

extraditable offense should support dismissing the charges, then

correspondence proving the trickery would surely qualify as

“evidence favorable to [the] accused” under Brady, 373 U.S. at

87.   Given the government’s continuing assertion that the

requested correspondence is not Brady material, the government

will not be permitted to limit its production to only those

materials that it deems could be Brady.

      In light of the potential harm that might flow from open

production of the correspondence between the United States and

Belgium, and in part to ensure that the government does not

attempt to further shield the relevant correspondence, the Court

will permit the government to submit all correspondence

responsive to the 5/8/15 Order for in camera ex parte review.

III. REQUEST FOR SEALING ORDER

      The government further requests that any documents

ultimately produced to Trabelsi -- as well as any information

contained within the documents -- be subject to a sealing order.

“‘[T]he decision as to access (to judicial records) is one best

left to the sound discretion of the trial court, a discretion to

be exercised in light of the relevant facts and circumstances of

the particular case.’”   United States v. Hubbard, 650 F.2d 293,
                               -23-


316-17 (D.C. Cir. 1980) (quoting Nixon v. Warner Commc’ns, Inc.,

435 U.S. 589, 599 (1977)).   In Hubbard, the D.C. Circuit

expressed a number of factors that courts should consider to

determine whether a document should be sealed.

     The Hubbard factors include: (1) the need for public
     access to the documents at issue; (2) the extent of
     previous public access to the documents; (3) the fact
     that someone has objected to disclosure, and the
     identity of that person; (4) the strength of any
     property and privacy interests asserted; (5) the
     possibility of prejudice to those opposing disclosure;
     and (6) the purposes for which the documents were
     introduced during the judicial proceedings.

In re Application of United States of Am. for an Order of

Nondisclosure Pursuant to 18 U.S.C. § 2705(B) for Grand Jury

Subpoena # GJ2014031422765, 41 F. Supp. 3d 1, 7 n.4 (D.D.C.

2014) (citing Hubbard, 650 F.2d at 317-22).

     The discovery process is not normally a public one, and

there has been no previous public access to the requested

correspondence.   Here, the materials at issue are not sought to

prove Trabelsi’s guilt or innocence, but rather to bolster

Trabelsi’s arguments that the superseding indictment and the

instant prosecution violate the United States’ extradition

treaty with Belgium.   Further, both the United States and

Belgium object to public disclosure of this inter-governmental

correspondence, which was prepared with an expectation that all

communications would remain confidential.   The government

asserts that public disclosure of the relevant documents will
                               -24-


have a detrimental impact on the United States’ relationship

with Belgium, and that public disclosure may jeopardize the

United States’ cooperative extradition relationships with other

foreign sovereigns.

     In light of all the circumstances, including the

government’s representations regarding the potential harm to the

relationship between the United States and its foreign allies,

as well as the Kingdom of Belgium’s objection to public

disclosure of its extradition-related communications with the

United States, the government’s request will be granted.    If the

Court ultimately directs the government to produce to Trabelsi

any documents, the production will be subject to the conditions

outlined in the order below.

                       CONCLUSION AND ORDER

     The government’s repeated general claims of privilege do

not merit reconsideration, and several of the government’s

specific privilege claims fail.    However, the government has

sufficiently established that the requested correspondence may

contain privileged opinion work product.    Additionally, the

government has established a compelling interest in protecting

the requested correspondence from open and public disclosure at

this stage.   Thus, it is hereby

     ORDERED that the government’s motion [112] for

reconsideration be, and hereby is, DENIED IN PART AND GRANTED IN
                                -25-


PART.    The government shall produce to the Court by no later

than September 11, 2015 at 5:00 p.m. for in camera ex parte

review all correspondence responsive to the Court’s May 8, 2015

Order.    The government may submit, if appropriate, a privilege

log consistent with this opinion along with both redacted and

unredacted copies of the allegedly privileged materials.      The

Court will then determine which correspondence, if any, should

be produced to Trabelsi.    It is further

     ORDERED that if, following in camera ex parte review, the

Court directs the government to produce to Trabelsi any

correspondence, the produced correspondence will be subject to

the following conditions: 1) Any filings by any filer that

either attach the produced correspondence or discuss the

information contained within the produced correspondence must be

filed under seal.    2) Any discussions or arguments before the

Court regarding the contents of the produced correspondence must

be conducted in a sealed proceeding.      3) Any of the produced

correspondence designated by the government as “Protected

Material” will also be subject to the restrictions included in

the Protective Order, ECF No. 18.      It is further

     ORDERED that the parties appear on Tuesday, September 29,

2015 at 10:00 a.m. in Courtroom 9 for a hearing on Trabelsi’s

motion [70] to dismiss.
                         -26-


SIGNED this 3rd day of September, 2015.



                                          /s/
                                RICHARD W. ROBERTS
                                Chief Judge
