THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JACK BEAM and RENEE BEAM, 

 Plaintiffs, 

 v. 

MATTHEW S. PETERSEN, FEDERAL 

ELECTION COMMISSION CHAIRMAN, 

 Defendant. 

Civil No. 07cv1227 

Judge Rebecca R. Pallmeyer 

Magistrate Judge Cole 

DEFENDANT’S MEMORANDUM 

IN SUPPORT OF ITS MOTION IN 

LIMINE 

DEFENDANT’S MEMORANDUM IN SUPPORT OF ITS MOTION IN LIMINE 

 Defendant Federal Election Commission (“FEC” or “Commission”) respectfully moves 

this Court for an order in advance of trial prohibiting plaintiffs Jack and Renee Beam from 

introducing certain categories of evidence that are irrelevant, privileged, or otherwise protected 

from disclosure. The only issue remaining in this case is a narrow one: whether the FEC 

obtained plaintiffs’ private financial records from the Department of Justice (“DOJ”) in violation 

of the Right to Financial Privacy Act (“RFPA”), 12 U.S.C. § 3401 et seq. See Mem. Op. and 

Order, dated Feb. 4, 2010, at 1 (Doc. #148); Final Pretrial Order ¶ 2(b) (Doc. #175). However, 

given the history of this case and plaintiffs’ stated intentions in the final pretrial order, it is likely 

that they will seek to introduce evidence that relates only to their already-dismissed allegations 

that the FEC impermissibly deferred its investigation of conduit contribution violations of the 

Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-455, so that DOJ could pursue an 

allegedly overreaching, politically-motivated criminal prosecution of plaintiffs’ associates 

Geoffrey Fieger and Vernon Johnson. Plaintiffs are also likely to attempt to introduce protected 

Case 1:07-cv-01227 Document 185 Filed 07/06/10 Page 1 of 15
information related to the conduct of that investigation, in an effort to convert this limited trial 

into a wide-ranging attack on DOJ’s past enforcement of federal campaign finance law. 

To avoid this improper diversion, and to keep the trial focused on plaintiffs’ RFPA claim, 

the Commission respectfully requests an order excluding the following: 

1. Evidence relevant only to claims this Court has already dismissed; 

2. Evidence relevant only to the Fieger-Johnson criminal investigation, indictment, or trial; 

3. Evidence breaching the secrecy of the Fieger-Johnson grand jury investigation; 

4. Examination of DOJ trial attorney M. Kendall Day on irrelevant or protected topics; 

5. Evidence of claimed actual damages beyond any pecuniary harm caused by the alleged 

RFPA violation; and 

6. Documents listed on the FEC’s privilege log. 

ARGUMENT 

I. Evidence Relevant Only to Claims the Court Has Already Dismissed Should Be 

Excluded from Trial 

Of the seven claims plaintiffs have asserted against the FEC and DOJ in the course of this 

litigation, only plaintiffs’ RFPA claim against the FEC remains. The six dismissed claims all 

centered on allegations that the FEC and DOJ engaged in a politically motivated conspiracy to 

investigate plaintiffs for violations of FECA’s ban on contributions in the name of another, see 2 

U.S.C. § 441f, allegedly in retaliation for plaintiffs’ support of the 2004 Edwards for President 

Committee. See generally Mem. Op. and Order, dated Mar. 7, 2008 (Doc. #90); Mem. Op. and 

Order, dated Oct. 15, 2008 (Doc. #108). For example, plaintiffs’ dismissed claims included 

allegations that 

• DOJ and the FEC “conspired to retaliate against plaintiffs Jack and Renee Beam for 

exercising their First Amendment rights to freely engage in political speech,” and 

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“made frivolous allegations of campaign finance abuse as a pretext for their 

politically motivated investigation,” Am. Compl. ¶¶ 32, 34 (Doc. #47); 

• the FEC violated FECA in facilitating DOJ’s “politically motivated investigation,” 

Am. Compl. ¶¶ 42-45 (Doc. #47); see also Compl. ¶¶ 18-32 (Doc. #1); 

• the FEC failed to engage in a required investigation after finding that there was 

reason to believe that plaintiffs violated 2 U.S.C. § 441f “in order to aid the [DOJ’s] 

politically motivated investigation,” Am. Compl. ¶¶ 47-49 (Doc. #47); and 

• former FEC Chairman Michael Toner and the FEC, “for reasons of personal and 

political animosity, acted with discriminatory purpose and intent by selectively and 

vindictively targeting [plaintiffs] with frivolous and demonstrably false claims” that 

they had violated 2 U.S.C. § 441f, Second Am. Compl. ¶¶ 31-32 (Doc. #91). 

Despite the fact that these claims have been dismissed since 2008, plaintiffs signaled their 

intent in the final pretrial order to introduce evidence at trial relevant only to these claims. See

Final Pretrial Order ¶ (2)(c) (Doc. #175). This evidence should not be admitted.1

 See, e.g., 

Littleton v. Pilot Travel Centers, LLC, 568 F.3d 641, 648 (8th Cir. 2009) (affirming district 

court’s motion in limine ruling excluding evidence relevant only to dismissed claims). For 

instance, plaintiffs wish to introduce two October 2006 letters they sent to then-FEC Chairman 

Toner in response to the six-member Commission’s finding that there was “reason to believe” 

plaintiffs had violated 2 U.S.C. § 441f. See Final Pretrial Order at ¶ (2)(c)(4) (Doc. #175). Mr. 

Beam’s letter denies any FECA violation, but the letter is largely an ad hominem attack on Mr. 

Toner and others. For example, it accuses Mr. Toner of being “[n]ominated by a former nosecandy clown”; being “a point man for Big Tobacco against children”; “disenfranchising AfricanAmericans”; gerrymandering Congressional districts; being a “neo-brown shirt[]”; cheating 

 

1

 “Evidence which is not relevant is not admissible.” Fed. R. Evid. 402. “‘Relevant 

evidence’” is evidence “having any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than it would be 

without the evidence.” Fed. R. Evid. 401. Whether a fact is “of consequence” is dictated by 

whether it is relevant to a determination of liability under substantive law. United States v. 

Morris, 957 F.2d 1391, 1400 (7th Cir. 1992). 

3 

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“Gore out of Florida”; and “trying to undermine the civil justice system.” See Letter from Jack 

Beam to Michael E. Toner, Chairman, FEC (Oct. 6, 2006) at 1-2 (Exh. A); see also Letter from 

Renee Beam to Michael E. Toner, Chairman, FEC (Oct. 6, 2006) at 1 (Exh. B). These assertions 

plainly have no relevance to whether the FEC obtained the Beams’ private financial information 

from DOJ in violation of the RFPA. The letters do not discuss the RFPA, the Beams’ private 

financial records, or the alleged transfer of such records between DOJ and the FEC. The Court 

should not permit them to be admitted. 

The Court should also exclude any testimony at trial regarding the dismissed claims. 

Because plaintiffs attempted to obtain deposition testimony and documents relating only to their 

dismissed claims during discovery — when only their RFPA claim remained — it is reasonably 

likely that they will continue to question witnesses on these irrelevant topics at trial. For 

example, plaintiffs’ counsel questioned two FEC staff members during their depositions on 

whether section 441f bars reimbursement of campaign contributions in light of the fact that the 

word “reimbursement” does not appear in the statute. See Mem. in Supp. of Def.’s Mot. Summ. 

J. at Exh. 3 (Sealander Dep. 12:15-13:8) and Exh. 5 (Wassom Bayes Dep. 16:3-17:5) (Doc. 

#142-4). 

Additionally, plaintiffs issued a subpoena duces tecum to Mr. Toner seeking a wide range 

of information relevant only to the dismissed claims, such as material related to Fieger, Fieger, 

Kenney & Johnson, P.C. (“Fieger law firm”) and its associates, as well as alleged 

communications between Mr. Toner and White House officials. See Subpoena Duces Tecum 

Issued to Michael E. Toner, dated Nov. 17, 2008 (Doc. #121-3). Plaintiffs attempted to enforce 

the subpoena in the District Court for the District of Columbia, but that court refused to enforce 

the subpoena in the absence of an indication from this Court that the information sought was 

4 

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relevant. See Order, In Re Subpoena Duces Tecum Issued to Michael E. Toner, Misc Action No. 

08-804 (RBW) (Doc. #121-6). This Court sustained the FEC’s objection to plaintiffs’ subpoena, 

calling it “intrusive.” See Minute Order dated Feb. 11, 2009 (Doc. #126); Transcript of Mot. 

Hearing on Feb. 11, 2009 at 14:1-5 (Doc. #127). 

Plaintiffs also issued a subpoena duces tecum to DOJ for documents that were completely 

unrelated to their RFPA claim, such as documents regarding DOJ’s policies and procedures for 

enforcement of FECA; search warrants relating to the Fieger law firm; and DOJ communications 

with White House officials relating to federal campaign contributions or FECA. See Subpoena 

Duces Tecum Issued to DOJ, dated Nov. 5, 2008 (Doc. #110-2); Letter from David Margolis, 

Assoc. Deputy Att’y Gen., DOJ, to Michael R. Dezsi (Dec. 23, 2008) (“Touhy letter”) at 1-3 

(Exh. C). 

The Court should not permit plaintiffs’ overreaching to continue into trial. Accordingly, 

the FEC respectfully requests an order excluding the Beams’ October 6, 2006, letters and any 

other evidence, including testimony, relating only to plaintiffs’ dismissed claims. 

II. Evidence Relevant Only to the Fieger-Johnson Criminal Proceedings Should Be 

Excluded from Trial 

 The Court should also order that plaintiffs may not introduce evidence that is relevant 

only to the Fieger-Johnson criminal proceedings, and therefore not relevant to their RFPA claim. 

For example, the final pretrial order states that plaintiffs will attempt to introduce the grand jury 

indictment and acquittal of Fieger and Johnson into evidence. See Final Pretrial Order 

¶¶ (2)(c)(7) & (8) (Doc. #175). But those materials are not relevant to whether the FEC obtained 

plaintiffs’ private financial information in violation of the RFPA. The Fieger-Johnson 

indictment does not mention the RFPA or state that anyone’s private financial records were 

5 

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given to the FEC, and it does not name the Beams. See generally Indictment, United States v. 

Fieger, No. 2:07cr20414 (E.D. Mich.) filed Aug. 22, 2007 (Doc. #61-1). The fact that two 

members of the Fieger law firm, with which Mr. Beam was associated, were charged with and 

acquitted of FECA violations does not make it more or less probable that the FEC obtained 

plaintiffs’ private financial records in violation of the RFPA. 

This Court has previously recognized that records relating to the criminal proceedings 

against Mr. Beam’s associates at the Fieger law firm have no relevance to plaintiffs’ RFPA 

claim. In its November 15, 2008 ruling partially granting the FEC’s motion to dismiss, the Court 

declined the Beams’ request to consider a grand jury subpoena seeking records of the Fieger law 

firm from the firm’s bank. See Mem. Op. and Order, dated Oct. 15, 2008, at 6 n.3 (Doc. #108). 

The Court stated that it was “not persuaded that this subpoena has any relevance to Plaintiffs’ 

claims for relief in their Second Amended Complaint, as it does not concern any RFPA violation 

relating to the Beams’ own financial records.” Id. 

The indictment and later acquittal that resulted from that same grand jury investigation do 

not concern any alleged RFPA violation, and the Court should therefore exclude them, along 

with any other similarly irrelevant materials or testimony. 

III. Evidence That Would Breach the Secrecy of the Fieger-Johnson Grand Jury 

Investigation Should Be Excluded from Trial 

 The Court’s order should also exclude any evidence or testimony that would breach the 

secrecy of the Fieger-Johnson grand jury investigation, since there is plainly no basis for the 

disclosure of such material in this case. 

 Grand jury proceedings must be kept secret. See Fed. R. Crim. P. 6(e). The “judicial 

system has recognized that the proper functioning of grand jury proceedings depends on their 

6 

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absolute secrecy.” Matter of EyeCare Physicians of Am., 100 F.3d 514, 518 (7th Cir. 1996) 

(internal quotation marks omitted). Without grand jury secrecy, witnesses may hesitate to testify 

voluntarily, suspects about to be indicted may attempt to flee or improperly influence grand 

jurors, and the reputation and privacy of those ultimately not charged may be harmed. Id. 

Accordingly, even after a grand jury has concluded its investigation, a party seeking grand jury 

materials must show that there is a “compelling necessity” for their disclosure. Id. 

 Plaintiffs have repeatedly claimed or implied that the FBI and other government agents 

engaged in wrongdoing while investigating alleged 2 U.S.C. § 441f violations by associates of 

the Fieger law firm. See Compl. ¶¶ 15-16 (claiming that during the investigation “witnesses 

were coerced to reveal constitutionally protected activities such as the identity of the presidential 

candidate for whom they voted in the 2004 election”) (Doc. #1); Am. Compl. ¶ 35 (alleging that 

the grand jury investigation engaged in “strong arm tactics [by] federal agents [that] reek[] of 

totalitarianism”) (Doc. #47); Second Am. Compl. ¶ 23 (same) (Doc. #91). During discovery, 

plaintiffs attempted to collect evidence about the Fieger-Johnson grand jury investigation, 

without regard for its secrecy, and despite the fact that only the RFPA claim remained at the 

time. See, e.g., Subpoena Duces Tecum Issued to DOJ, dated Nov. 5, 2008 (Doc. #110-2). 

Because disclosing that evidence would breach the secrecy of the grand jury investigation 

and the evidence is not even relevant to plaintiffs’ RFPA claim against the FEC, plaintiffs cannot 

show the “compelling necessity” required in order to abrogate grand jury secrecy. See Matter of 

EyeCare, 100 F.3d at 518 (“compelling necessity” is a showing of “more than relevance”). This 

Court should therefore exclude evidence, including testimony, that would breach the secrecy of 

the Fieger-Johnson grand jury investigation. 

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IV. Plaintiffs Should Not Be Permitted to Examine DOJ Trial Attorney M. Kendall Day 

on Irrelevant or Protected Topics 

 Subject to DOJ’s approval, see United States ex rel. Touhy v. Ragen, 340 U.S. 462 

(1951), the FEC plans to call M. Kendall Day to testify at trial. Mr. Day is a trial attorney in 

DOJ’s Public Integrity Section who helped prosecute the Fieger-Johnson criminal matter and 

was in charge of communicating with the FEC regarding that case. If he is able to testify, the 

Commission anticipates that Mr. Day will confirm — consistent with his declaration — that the 

Beams’ private financial records were never transferred to the FEC. See Mem. in Supp. of Def.’s 

Mot. Summ. J. at Exh. 1 (Decl. of M. Kendall Day, dated Dec. 3, 2008) (Doc. #142-4). For the 

reasons described above, supra pp. 2-7, if Mr. Day is able to testify this Court should order that 

plaintiffs’ may not elicit any testimony from him regarding irrelevant and protected topics, such 

as testimony relating to plaintiffs’ dismissed claims and DOJ’s conduct of the Fieger-Johnson 

criminal investigation and proceedings. Such an order would be particularly appropriate in light 

of Mr. Day’s role as a prosecutor in the Fieger-Johnson case, because plaintiffs’ counsel here is 

an attorney at the Fieger firm and he served as a defense attorney in the criminal matter. 

 If Mr. Day were to testify, it is reasonably likely that plaintiffs would attempt to question 

him on these irrelevant and protected topics. As noted above, during discovery plaintiffs 

subpoenaed voluminous material from DOJ that is plainly irrelevant to the RFPA claim. See

Subpoena Duces Tecum Issued to DOJ, dated Nov. 5, 2008 (Doc. 110-2). The DOJ treated 

plaintiffs’ subpoena as a Touhy request, and denied it largely on relevance and grand jury secrecy 

grounds. See Touhy letter at 3-4 (Exh. C). DOJ explained to plaintiffs that their “document 

requests far exceed[ed] the scope of relevant inquiry into the issues involved in this litigation,” 

which consist of “whether the [DOJ] shared with the FEC the Plaintiffs’ financial information 

and, if so, how.” Id. On this one relevant issue, DOJ provided plaintiffs with a declaration by 

8 

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Mr. Day explaining that neither he nor others at DOJ transferred the Beams’ financial records to 

the FEC. Id. at 4-5; see also Day Decl. at 1 (Doc. #142-4). Plaintiffs did not challenge DOJ’s 

Touhy decision under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., as they could 

have, see Edwards v. U.S. Dep’t of Justice, 43 F.3d 312, 314-15 (7th Cir. 1994). This Court 

should similarly restrict the scope of topics about which Mr. Day can be questioned on relevancy 

and grand jury secrecy grounds. 

V. The Court Should Limit the Scope of Evidence Regarding Alleged Actual Damages 

 Under the RFPA, a plaintiff can seek “actual damages” resulting from a defendant’s 

violation of the statute. 12 U.S.C. § 3417(a)(2). Although plaintiffs have not made any specific 

damages claims to date, the final pretrial order indicates that plaintiffs plan to testify at trial. See

Final Pretrial Order at ¶ (2)(d) (Doc. #175). Because neither plaintiff was involved in any 

alleged transfer of their personal financial records between DOJ and the FEC, it appears that 

plaintiffs’ counsel may question them about, among other things, damages they may have 

suffered from the FEC’s alleged RFPA violation. The Court should issue an order excluding any 

evidence, including testimony, that plaintiffs suffered actual damages resulting from DOJ’s or 

the FEC’s campaign finance investigations (rather than the alleged RFPA violation) or resulting 

from any alleged non-pecuniary harm. 

A. Evidence That Plaintiffs Suffered Actual Damages Resulting from the 

Government’s Campaign Finance Investigations Should Be Excluded 

Under the RFPA, a plaintiff is only entitled to actual damages that are sustained “as a 

result of the disclosure.” 12 U.S.C. § 3417(a)(2). For example, those damages might include 

harm resulting from “identity theft or other tangible adverse financial or tax problems caused by 

the disclosure[].” Flowers v. First Hawaiian Bank, 295 F. Supp. 2d 1130, 1140 (D. Haw. 2003). 

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However, plaintiffs should not be permitted to put forth evidence, including testimony, 

suggesting that they suffered actual damages as a result of the Fieger-Johnson criminal 

investigation or as a result of the FEC’s civil investigation. Even assuming there was a 

disclosure that violated the RFPA, neither investigation could have been caused by any such 

disclosure, because both investigations started well before any disclosure could have taken place. 

According to plaintiffs’ apparent claims, if any illegal transfer of their records took place, it must 

have occurred after April 24, 2007 — the date the Fieger-Johnson grand jury subpoenaed Merrill 

Lynch for the Beams’ bank records. See Grand Jury Subpoena Issued to Merrill Lynch, dated 

Apr. 24, 2007 (Doc. #100-2); see also Second Am. Compl. ¶¶ 15-16, 18 (claiming that DOJ 

“secretly obtained Plaintiffs’ private banking records” from “Merrill Lynch,” and “transmitted 

such illegally gathered documents to the [FEC].”) (Doc. #91). DOJ’s investigation started as 

early as May 2005. See Day Decl. at 1 (Doc. #142-4). The FEC started examining the Fieger 

law firm’s activities on or about February 1, 2006, when the firm’s counsel wrote a letter to the 

Commission to “demand that the FEC . . . determine whether there is reason to believe” that 

members of the Fieger law firm violated campaign finance laws, and if so, to conduct an 

investigation. See Letter from Thomas W. Cranmer, Miller Cranfield Paddock & Stone, P.L.C., 

to Michael E. Toner, Chairman, FEC (Feb. 1, 2006) (Doc. #10-1). On September 26, 2006, the 

FEC informed plaintiffs that the agency had determined that there was reason to believe they 

violated section 441f, marking the start of the FEC’s formal investigation. See Letter from 

Michael E. Toner to Jack Beam, dated Sept. 26, 2006, at 1 (Doc. #10-2); 2 U.S.C. § 437g(a)(2). 

Thus, neither the DOJ nor the FEC investigation — nor any damages plaintiffs may allege they 

suffered as a result — happened “as a result” of an alleged RFPA disclosure that could not have 

occurred prior to April 2007. Cf. Flowers, 295 F. Supp. 2d at 1140 (holding that RFPA plaintiff 

10 

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could not recover for stress from being subject to a prosecution that started prior to the disclosure 

of his bank records and which would have been initiated regardless of the disclosure). 

Furthermore, plaintiffs should be limited to presenting evidence demonstrating any actual 

damages suffered as a result of the Commission’s allegedly obtaining their records, and not as a 

result of Merrill Lynch’s initially disclosing those records to DOJ. As this Court has held, DOJ 

did not violate the RFPA by allegedly obtaining plaintiffs’ records from Merrill Lynch by grand 

jury subpoena. See Mem. Op. and Order, dated Oct. 15, 2008, at 13 (Doc. #108). If the FEC 

violated the RFPA, it would only be because such records allegedly changed hands between DOJ 

and the FEC. Id. at 13-14. Plaintiffs’ actual damages, if any, must flow from that alleged 

transfer. 

B. Evidence Concerning Alleged Non-Pecuniary Harm Should Be Excluded 

Because the RFPA Is a Waiver of Sovereign Immunity That Must Be Strictly 

Construed 

The Court should construe “actual damages” recoverable under the RFPA to include only 

out-of-pocket damages, and exclude any evidence, including testimony, regarding alleged nonpecuniary injuries such as emotional distress, reputational harm, and embarrassment.2

 The 

RFPA does not define “actual damages,” and its legislative history fails to shed light on whether 

the phrase was intended to include non-pecuniary damages. See Neece v. IRS, No. 88-C-1320-E, 

1993 WL 305963, at *6 (N.D. Okla. May 21, 1993), aff’d in part, rev’d in part, 41 F.3d 1396 

(10th Cir. 1993).3 However, where a federal statute contains a waiver of sovereign immunity — 

 

2

 This is particularly true to the extent such evidence relates to alleged harm stemming not 

from the actions of the FEC, but the actions of plaintiffs or others, such as efforts to publicize 

this or other litigation. See, e.g., Scott Horton, Feiger’s Fight for Freedom, AM. TRIAL LAWYER, 

Fall 2008, at 59-63 (Doc. #116-4). 

3

 Generally, “actual damages” has “no plain meaning or consistent legal interpretation.” 

Hudson v. Reno, 130 F.3d 1193, 1207 n.11 (6th Cir. 1997). Although at common law 

11 

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as the RFPA does — courts must strictly construe that waiver in favor of the government, and 

must not enlarge the waiver of immunity beyond what the language requires.4

 See Ardestani v. 

INS, 502 U.S. 129, 137 (1991) (citing Library of Congress v. Shaw, 478 U.S. 310, 318 (1986)). 

Though no case could be found on point with regard to the RFPA, courts have applied this rule 

of statutory construction to restrict “actual damages” to out-of-pocket losses under the Privacy 

Act, 5 U.S.C. § 552a(g)(4)—a similar privacy-protective statute that also waives sovereign 

immunity.5 See Hudson, 130 F.3d at 1207 n.11 (“‘[A]ctual damages’ has no plain meaning or 

consistent legal interpretation, thus when it is being applied against the government it must be 

narrowly interpreted — here that requires finding that actual damages only mean out-of-pocket 

losses, not emotional distress”); DiMura v. FBI, 823 F. Supp. 45, 48 (D. Mass. 1993) (construing 

“actual damages” “strictly in favor of the sovereign” and adopting view that it “does not include 

emotional damages”).6 

 

“emotional” injury is often considered a form of “actual damages,” this does not settle the 

separate question of whether the use of “actual damages” in a statute encompasses nonpecuniary injury. See Aiello v. Providian Fin. Corp., 239 F.3d 876, 878, 881 (7th Cir. 2001) 

(Posner, J.) (concluding that the authorization of “actual damages” under 11 U.S.C. § 362 is 

restricted to “financial loss” and not emotional distress). 

4

 This Court has previously construed the RFPA’s limited waiver of sovereign immunity in 

favor of the FEC. On May 27, 2010, the Court granted the FEC’s motion to strike plaintiffs’ jury 

demand (Doc. #160) on the ground that the RFPA does not explicitly provide for a jury trial. 

The Court recognized that “‘accepted principles of sovereign immunity require that a jury trial 

right be clearly provided in the legislation creating the cause of action.’” Minute Order dated 

May 25, 2010 (Doc. #181) (quoting Lehman v. Nakshian, 453 U.S. 156, 162 n.9 (1981)). 

5

 Similar to the RFPA, the Privacy Act, 5 U.S.C. § 552a, delineates the duties and 

responsibilities of federal agencies that collect, retain, and distribute individuals’ personal 

information, and it authorizes private civil actions against those agencies for violations of its 

provisions. See Ely v. Dep’t of Justice, 610 F. Supp. 942, 945 (N.D. Ill. 1985). 

6

 See also Fanin v. U.S. Dep’t of Veterans Affairs, 572 F.3d 868, 872-73 (11th Cir. 2009), 

cert. denied, 130 S. Ct. 1755 (2010) (“‘[A]ctual damages’ as used in the Privacy Act permits 

recovery only for proven pecuniary losses and not for generalized mental injuries, loss of 

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This Court should strictly construe the RFPA’s sovereign immunity waiver in the same 

manner. This result would protect the U.S. Treasury from dubious claims of emotional distress, 

which the Seventh Circuit has recognized “are so easy to manufacture.” See Aiello, 239 F.3d at 

878, 880-811 (limiting “actual damages” in 11 U.S.C. § 362 to pecuniary harm, where “potential 

for abuse . . . [was] considerable”). The risks of abuse resulting from entertaining non-pecuniary 

damage claims is exacerbated where, as here, the plaintiff likely has no legitimate claim to any 

actual pecuniary losses. See id.

Accordingly, this Court should exclude any evidence, including testimony, regarding 

claimed non-pecuniary damages resulting from the FEC’s alleged violation of the RFPA. 

VI. Documents Listed on the FEC’s Privilege Log Should Be Excluded 

 In the final pretrial order, plaintiffs state that they may seek to introduce 69 documents 

listed on the FEC’s privilege log. See Final Pretrial Order ¶ 2(c)(5) (Doc. #175); FEC privilege 

log, dated Jan. 28, 2009 (Doc. #130-2). This Court has already reviewed 51 of these documents 

in camera and ruled that they are protected from disclosure by the attorney work product and law 

enforcement investigatory privileges.7

 See Minute Order, dated July 7, 2009 (Doc. #141). 

Furthermore, the Court found that these documents contain “no evidence of any shared financial 

data.” Id. Accordingly, the Court should order that these privileged, and ultimately irrelevant, 

documents are excluded from trial. 

 

reputation, embarrassment or other non-quantifiable injuries.”); Pope v. Bond, 641 F. Supp. 489, 

501 (D.D.C. 1986) (“Although the term ‘actual damages’ is not defined in the Act, this court has 

held that Congress, concerned about the drain on the treasury created by a rash of Privacy Act 

suits, indicated its intention to limit ‘actual damages’ to ‘out-of-pocket’ expenses”). 

7

 These 51 documents are marked with Bates numbers 45-51, 52-57, 58-59, 60-63, 64-65, 

162-163, 164-169, 177, 180-181, 193, 194, 196-97, 206-209, 221-224, 239-244, and 311. See

Final Pretrial Order ¶ 2(c)(5) (Doc. #175). 

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 The attorney work product and law enforcement investigatory privileges also protect the 

remaining 18 documents from the FEC’s privilege log that plaintiffs intend to introduce.8

 Under 

the attorney work product doctrine, a party may not discover materials “prepared in anticipation 

of litigation or for trial” unless it can demonstrate a “substantial need for the materials to prepare 

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

Fed. R. Civ. P. 26(b)(3). The law enforcement investigatory privilege generally protects 

“information pertaining to law enforcement techniques and procedures, information that would 

undermine the confidentiality of sources, information that would endanger witness and law 

enforcement personnel [or] the privacy of individuals involved in an investigation, and 

information that would otherwise . . . interfere[ ] with an investigation.” In re The City of New 

York, ___ F. 3d ___, 2010 WL 2294134, at *14 (2d Cir. Jun. 9, 2010) (Cabranes, J.) (internal 

quotation marks omitted and alterations in original). The privilege applies regardless of whether 

the investigation is ongoing or completed. Id. While this protection is not absolute, “there ought 

to be a pretty strong presumption against lifting the privilege.” Dellwood Farms, Inc. v. Cargill, 

Inc., 128 F.3d 1122, 1125 (7th Cir. 1997) (Posner, C. J.). 

 As described in the FEC’s privilege log, the e-mails marked with Bates numbers 594-611 

are communications between staff of the FEC and DOJ concerning their investigations into 

potential federal campaign finance violations. Indeed, some of the emails discuss potential 

witnesses and evidence. See FEC privilege log, dated Jan. 28, 2009, at 27 (Bates Nos. 594-97, 

607-11) (Doc. #130-2). These communications all occurred in September or October of 2007 — 

well before the Fieger-Johnson criminal trial ended in June 2008 and the Commission concluded 

its investigation in November 2009. As such, these emails fall squarely within the attorney work 

 

8

 These 18 documents are marked with Bates numbers 594-611. See Final Pretrial Order 

¶ 2(c)(5) (Doc. #175). 

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15 

product and law enforcement investigatory privileges. Thus, like the other similar e-mails on the 

FEC’s privilege log that plaintiffs have unsuccessfully sought to obtain, these materials should 

be excluded from trial in this matter. 

CONCLUSION

 For the foregoing reasons, the FEC respectfully requests that the Court issue an order 

excluding the previously discussed categories of inadmissible evidence from trial. The FEC will 

electronically submit a proposed order for the Court’s consideration.

Respectfully submitted, 

 Thomasenia P. Duncan 

General Counsel 

David Kolker 

Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

Benjamin A. Streeter III 

Attorney 

/s/ Holly J. Baker 

Holly J. Baker 

Attorney 

July 6, 2010 FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

AND ITS CHAIRMAN 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

Case 1:07-cv-01227 Document 185 Filed 07/06/10 Page 15 of 15