serials their trial strategy just like any other lawyer that's how the adversarial system works we're talking here about a comprehensive manual distributed to every prosecutor paralegal in the department instructing them on how they should be complying with duties attached to every prosecution that they undertake that's just not the type of strategy the work product doctrine targets rather it's the type of government policy that boy requires  are the closest analogy and in this court's cases it is the jordan decision that concern a gene manual respecting how prosecutors ought to exercise their discretion in making charging determination of course that was written by the lawyers in some sense of preparing in anticipation of prosecutions and in some sense it was going to be described as strategic the way prosecutors charge cases has a clear duty to execute the law it's not the type of case specific tactical materials that lawyers prepared order to advance their adversarial litigation to what do we do with grey suit which would certainly to use a way from any issue and that the distinction that sealed case drew was when you were talking about materials that are prepared by government lawyers in defense of capacity to  prevent an adverse judgment against the agency to protect the agency then you don't need to have the type of specific claim that you would require in a situation where the agency's lawyers acting as a prosecutor enforcing the law and that's because i think that's because when the agency is acting in a defensive capacity the considerations are much more inherently adversarial they see as thinking ok what argument am i going to make to the court what arguments  know i don't know for purposes of this case exactly what i'm supposed to be doing in terms of the discovery obligations can you write me a memo that tells me how i'm supposed to handle my discovery allegations in this case i mightn't odysseys comply with the obligations that i have  that i the distinction is escaping me because what's the meaningful difference between the situation in which you're already in a specific case and the document that's produced is a three hundred forty page memorandum ok that tells the person here's the discovery obligations and here's how you comply with them and one in which before a specific a star's a litigator says i'm getting a bunch of cases in this area in fact all i do is litigate cases in this area i'd like to know what my obligations are going to be in every single one of those cases so right an overarching memo that tells me what to do in every single one of those cases isn't really a tells many distinction between those two such that the various of the document could look exactly the same i think there is a distinction proxy than anything else but when you are in the context of a litigation even if the memory produces an objective neutral memo rather than an act to come out we understand that the lawyers when they're acting in that context are much more always ongoing because that's all this agency does is gone is absolutely to a moral certainty going to be used in specific cases that's its whole purpose i suppose take it one step further and in the three hundred forty page memorandum the attorney dutifully tells the prosecutor here's the best arguments you could make on this issue here's the best case is that the other side by side in opposition to us and here's the way that i would navigate those shoals and puts that now that that seems like something if i was on the other side i'd love to have that because it's already telling me the best cases that i could use at my disposal but it sounds to me like what you're saying is if that's done in advance of a particular case the fact that it's itemizing a bunch of cases including the best ones for the other side doesn't matter it's not your product i think that's  is that in a situation like coastal states the reason you have a specific claims requirement come into issue is because you're trying to gauge how formally is litigation on the mind of the people that are preparing the document you don't have to engage that in a situation like this because the only reason document like this is produced is to be used in litigation it's a litigation manual so you don't even then the specific claim part of it sort of drops out of the equation because the proxy for which the specific complain document that is by your own assumption a manual on how to litigate a case or they just do it in advance of any particular case they talk about how to litigate a bunch of cases right well let me just try to distinguish two different things because we can talk about litigation manual's in two different ways you want to distinguish a situation where manual or the materials are directed towards how the the lawyers should be presenting their arguments to the court now they should be defending the rights of the the the  needed but it was really presented as we understand there are issues with compliance and we want to have better training to ensure that the prosecutors understand their obligations and comply with their obligations and so we are going to create this manual that twenty one of one of the declarations and we get maybe the first separation it that the document describes the types of claims defense counsel have raised and could raise regarding different discovery issues or the tactics they could employ the arguments prosecutors can make to respond they should take to counter defense counsel tactics and protect government vesta geisha ins the limitations of certain arguments compilations of cases that prosecutors can use to support different arguments cases illustrating potential pitfalls that they should avoid and or use prosecutors can make that sounds like the type of thing we were just discussing that would be considered more product it maybe it maybe i think is a little bit ambiguous because i think the same types material can be presented in different ways and it's not exactly clear from that description ho veer from the instruction in the education of on how prosecutors should be doing their job in making their disclosures towards ok let's see myself and the others i file sanctions motion here's some tips on how to find yourself that starts to look like your that's i mean i have to say the distinction between those two categories is hardly black and white how you should do your job versus whether you might suffer sanctions because you're not doing your job in the way you should do your job they seem like almost flip sides of the same coin i  i would agree it's not it's not a bright line rule but i think you need some wind to distinguish the policy from the more tactical considerations and i think that's where the cases suggest the line should be drawn because points but i think this work that's all that said though this is all defensive because if you comply with your obligations then you won't be sanctions i mean that's always true that's true for any guidance material that an agency would put out yes but that's not why they're creating prosecutors have to comply with their own disclosure obligations whether or not that's ever going to be subject to judicial review whether or not that's ever going to be litigated that's just their ordinary course of their duties and they and so if the book was created in order to further that interest the interest in proper compliance training that's not pushing it really there are parts of it that are directed towards how to defend yourself in the situation of ok it's now the court of the court is you look at justice jackson's opinion which talks about practicing your litigation on which to borrow from your adversary and your adversary is the notion that one side shouldn't get the benefit of the fruits of the other side's considerations and procedures extensive compilations of cases to support a different argument and con and contrary authority the limitations of some of these arguments etc so that what the affidavit is asserting is that it contains extensive compilations of cases to support various arguments and does that start to sound like more product to you since that seems like if you one party has compiled an extensive compilation of cases to support different arguments and then the other side just gets to summary cases he's descriptions that itself is not enough at least if it's not in the context of a specifically and i'll not say it would be useless to anyone maybe the same way that you know all sorts of the manuals that they do publish  and at least you know we are going down the road of is there a meaningful distinction when this document is produced in advance of a bunch of specific cases so if the very same list of cases were produced for essentially the very same purpose but it's produced in the context of a contexts right yeah but if it's a general agency policy that being distributed to the whole department as here's our position here's what you should do i think that the doctor has to treat that different identified a functional test and that test is whether a document in light of the nature of the document and the specific facts of the killer case can figure leasing to have been prepared were obtained because of the prospect of so whether or not there is a long memorandum or short memorandum doesn't really make a difference the question is whether or not the document has been prepared for purposes of litigation to assist a litigator in in discovery and litigation right yes it does you know you know suppose if you were in the many christian vision and you were getting with one of my old client and you demanded their whole bunch of documents and we came back with we're not going to do that discussed litigation brought by the government in unfair labor practice claims and that was a pretty good document prepared for litigators as prosecutors and his as individuals bringing under the practices claim and the point of the specific claim requirement this court has said in de lay he was to distinguish case documents in the particular cases where the court has referred to specific claims that were protected the under f exemption is because they were not even related to litigation in general that's the court the term the current used to explain why those particular documents were not subject to the exemption and i pointed out  were documents describing the policies concerning the exercise of prosecutorial discretion that is whether or not to bring a claim it was it was not as my friend suggested doesn't it it seems to me that the question about the status of a manual for work how to do a lawsuit the whole thing is it's a manual about litigation i think that's right your honor and it would come within the attorney work product privilege and that man you will hear the uncontested declarations in this case and the court obviously has the document it evaluated for itself provides explanations of arguments that prosecutors would be well to consider in discovery disputes yes but that's because the manuals about how to do litigation and how the government lawyers are supposed to conduct litigation so let me just be a little bit more size when i say the mantles about compliance with the law i'm talking about not a law i'm talking about the manuals how to comply with say osha and so you have a manual that tells you how to comply with the statute but that manual doesn't necessarily have anything to do with litigation it could it could be very relevant to litigation but it doesn't necessarily have something to do a little geisha because if you comply with osha you know we're going to be in litigation rights the manual is itself about how to conduct litigation then you never have to ask the specific case question because the whole thing is about it's about how the ladies of the civic cases that's all we're talking about i think that's right roger and i didn't mean to be disagreeing with my prior answer and the question is is this document in its entirety considered more product now you made into the answer is yes in which case we would use a debility but i think the antecedent question is why ok and that is a perfectly reasonable question and i think for the same reason the court obviously has the document can do its own analysis with the same reason that a paragraph of a shorter memorandum memorandum let's say a twenty page memorandum the first page may send it sent out the governing precedent but it is an exercise of the attorney analysis and skills to determine what precedent is relevant to the strategic arguments that are going to be made later in the document similarly here the declaration is in the record here and the document itself on its face i believe so one of the declarations this is a j one of the three paragraphs seven and this is trying to make the point that the blue bit is not about policy it's about i guess how to comply with policy so tactical and that's just the announcement policy so but your view is that that's inherently one product even though the way you've itself described it is that it's just announcing the policy has already set forth in the u s attorney's manual  yes your honor i do claim that in for the following reason if the first chapter doesn't just reprint the policy documents that are already publicly available it was an exercise of editorial discretion and it was sent out to pick out pieces of the policy discussions that are relevant to the later chapters of the book which discuss strategic considerations so just as a very small matter of litigation memorandum prepared by an associate partner would start out by saying here's the precedent in this area the associates still have to call the relevant press with an eye towards the strategic arguments that are going to be discussed later in the memorandum the first chapter of the blue book has the same purpose here and this is exactly at the heart of what the supreme court and this court has in many places shape the document as a whole for purposes of litigation i think this would be a very different case if chapter one was just a reprint of the deputy attorney general memo memoranda which are policy documents where the u s attorney book and he or i or if the blue book segregated up portions of the u s attorney's manual and i thought the point you're making earlier was that even if chapter one is a is at least in part an exposition of policies that had already been disseminated in the u s attorneys manual or in the modern memoranda the process of setting segregating out which portions of the policy to feature is itself work product that's right because you're saying what i'm on just making the point that document which which was included not based on editorial judgments but just as a reprint of the policy versus what we have here which is a chapter that was written with an eye to the strategic advice that was to follow that was to is to explain what the law requires of the prosecutor and the purpose of the first chapter would be to explain what those boundaries are again with an eye to the specifically geisha issues that come up later in the chapter and which provide guidance an product and if the work if this is properly worked prada that then it is an exemption which protects the product from disclosure and prevents the sharp practices that arise and for which the supreme court recognize the work product option in the very first place just because point has the laudable and completely understandable goal of profit disclosure doesn't mean that the exceptions exemptions when played upon should be given full force in judicial watch that said that iran are already so i think that the bottle disclosure purposes of the statute should not be read to car back and exaction properly taken as a so if you look at the d o j website one thing you'll find which i'm sure that you refused in the contest or you are in for this case is the foyer guide published by d o j and if you look at that foyer guide it could be a how to manual because it tells you you know here's exemption five here's a lot of a bunch of circuits on the scope of this mission five here's a sub issue you know here some cases that point in this direction here some cases that point in another direction it it could very well be used as a how to litigation manual for either side frankly on the law in these in what's going to be litigation is if the government had decided not to publicize that would it be fair for the government to say that that's attorney work product because it tells us how we're going to look for you cases i'm aware of the going to but i certainly did not look at it before this arguments were mental little bit of a loss to the spot i guess what i would say is the following if it is truly litigation guide about what arguments to make what tactical decisions to make you know what arguments your opponent might make then it could well be that that would have been and could have been protested will by attorney work product for that privilege of course is one that can be waived and it could very well be in this context that the government did to the department in this case decided that the better purpose especially in light of the fact that it the subject matter of roger described as of way imaginable is disclosure in that context the government the department has made a very different assessment in this case and determined that the strategic guidance for litigators in prosecutions concerning discovery are not the sort of thing that should be publicly available but that they should be protected to give prosecutors of subjects and saying you know here is what the courts have tended to do as opposed to saying here is what the courts have tended to do and it would be wise for you to think about x so why do we need that additional born or is it or not that it just takes subjects and goes through the morning after another after another and so this is what the courts are doing is that really god in discretion as opposed to just creating a treatise i think that's occurred question your hon to demand that the government disclose information about confidential informants there could be a list of case law compilation of case law with editorial descriptions of back case law which by their terms parents that are called a grouping of cases are editorial decisions made by authors put together in such a way that are intended to enable prosecutors to best muster their arguments in the context that they would best effort to treat as they would  variety of cases and say this is these are the key cases in this is our description of the key cases in the uses that you can make of them their editorial decision to put these cases together in the context of her particular type of argument and these are the made about which cases to collect and which would be most efficacious for the government's or for the readers purposes now i consider you know you i think that it doesn't even the editorial part of it i don't even understand why you think that batters and i'm not suggesting that you necessarily should because the point is that somebody has gone to the trouble of doing that worked well together this compilation it might read effectively like a treatise but part of the impetus behind the work product doctrine is one side doesn't get to piggy back on the labors of the other side without doing the work itself and described that you don't you don't litigate on the first of others labor is right and i think that's exactly right your honor and it was a subsidiary consideration that i was pointing to buying referencing the editorial part of the fruits are the decisions to group particular cases but i think the threshold consideration that you're pointing to is the efforts of compilation in the first instance and then if those efforts are geared towards litigation that is sufficient to make a document protectable under the dot under the work product under excuse me exempt from disclosure under exposure your unit just to be clear in response to judge edwards's question is that that would be enough even if that were all that were going on but here there's more going on still because after the parts that might be was they described as a treatise then there's the effort to interject strategic and tactical advice on how to use the law that has just been described exactly that's indictments are part of the criminal justice system and prosecution system just as much as disclosure of the patients and he could eat you know each could have strategic implications nonetheless that hartmann's policy general going forward for all cases and that therefore was within the realm for not within the realm of work product but there is a little bit of a decision between the decision whether to initiate litigation and how to conduct in the litigation once initiated well you're right one  to whether it was whether it now and the types of charges to bring or not bring rates of that if the policy was we're going to charge every case to the maximum that's a policy that is going to have lots and implications for the litigation of the prosecution nonetheless that's not w and so i think that's sort of the determining line and if and certainly if there's material that crosses that line it is not about you know here's what you need to do here are the the factors you should consider where there's room for discretion and that's the same as jordan if it crosses the line and it becomes and here's some tactics to fight back when criminal defendants are trying to go beyond what the what the law requires then that then i think there is room for second believe that's because they serve