21-1266 

American Oversight v. U.S. Dep’t of Just.

In the

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2021

No. 21-1266-cv

AMERICAN OVERSIGHT,

Plaintiff-Appellant,

v.

UNITED STATES DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF

INVESTIGATION,

Defendants-Appellees.

__________

On Appeal from the United States District Court

for the Southern District of New York

__________

ARGUED: MAY 18, 2022

DECIDED: AUGUST 16, 2022

__________

Before: RAGGI, WESLEY, and CARNEY, Circuit Judges.

________________

In this Freedom of Information Act (“FOIA”) lawsuit filed in 

the Southern District of New York (Schofield, J.), plaintiff seeks to 

compel defendants to produce notes and memoranda memorializing 

interviews conducted by federal prosecutors and law enforcement 
2

agents in the course of a criminal investigation. Plaintiff now appeals 

an award of summary judgment in favor of defendants, arguing that

the district court erred in holding that the requested documents are 

“attorney work product” shielded from production by FOIA 

Exemption 5. It maintains that, at least as to interviewed “targets”

and “subjects” of the investigation, defendants waived attorneywork-product protection for the requested documents by having 

already disclosed any protected information contained therein to 

potential litigation adversaries during their interviews. This 

misperceives both the work-product privilege and what constitutes 

waiver by disclosure in the circumstances of this case.

AFFIRMED.

KATHERINE M. ANTHONY (John E. Bies,

Emma Lewis, Sarah Colombo, on the brief),

American Oversight, Washington, DC, for

Plaintiff-Appellant.

SARAH S. NORMAND, Assistant United States

Attorney (Christopher Connolly, Assistant

United States Attorney, on the brief), for

Damian Williams, United States Attorney

for the Southern District of New York, New

York, NY, for Defendants-Appellees.

 

REENA RAGGI, Circuit Judge:

Plaintiff American Oversight brought this Freedom of

Information Act (“FOIA”) suit in the United States District Court for
3

the Southern District of New York (Lorna G. Schofield, Judge) to

compel defendants, the United States Department of Justice (“DOJ”)

and the Federal Bureau of Investigation (“FBI”), to disclose notes and

memoranda memorializing interviews conducted by federal

prosecutors and law enforcement agents in the course of a criminal

investigation into possible campaign-finance-law violations, and

subsequent obstruction of justice, by persons associated with the

Donald J. Trump 2016 presidential campaign (the “Investigation”).1 

On the parties’ cross-motions for summary judgment, the district

court ruled in favor of defendants, holding that the documents at

issue were attorney work product, shielded from production by FOIA

Exemption 5. See American Oversight v. DOJ, No. 19-CV-8215, 2021

WL 964220 (S.D.N.Y. Mar. 15, 2021).

In appealing that judgment, American Oversight now narrows

its production demand. It no longer seeks production of all interview

notes and memoranda generated during the Investigation. Rather, it

seeks such documents only forinterviews with “targets” or “subjects”

of the Investigation.2 It argues that because such persons were

potential litigation adversaries of defendants at the time of the

interviews, defendants necessarily waived any work-product

1 Because the obstruction investigation appears to have grown out of the campaignfinance-law investigation, we refer to them as one in this opinion.

2 As American Oversight acknowledges, “targets” and “subjects” are terms of art in the 

context of DOJ investigations, with (1) “target” defined as “a person as to whom the 

prosecutor or the grand jury has substantial evidence linking him or her to the commission 

of a crime and who, in the judgment of the prosecutor, is a putative defendant”; and (2) 

“subject” defined as “a person whose conduct is within the scope of the grand jury’s 

investigation.” DOJ, Justice Manual § 9-11.151 (2020). Because we understand the parties 

to use “target” and “subject” as so defined, we do likewise in this opinion, unless otherwise 

noted. 
4

protection for the requested documents by disclosing information

that would be memorialized therein to these adversaries during their

interviews. The argument misperceives the work-product privilege

and what would constitute its waiver by disclosure to a litigation

adversary in the circumstances of this case. 

For the reasons explained in this opinion, we conclude that (1)

defendants have shown that the documents at issue are work product

protected from disclosure by FOIA Exemption 5, and (2) American

Oversight has failed to demonstrate defendants’ waiver of workproduct protection. Accordingly, we affirm the challenged judgment

in favor of defendants.

BACKGROUND

The background facts pertinent to this appeal derive largely

from the sworn declarations of government officials in support of

defendants’ motion for summary judgment and from matters of

which we may take judicial notice. The declarations are those of

(1) Thomas McKay, an Assistant United States Attorney (“AUSA”) in

the Southern District of New York (“SDNY”); (2) Ebony Griffin, a

FOIA Attorney-Advisor with DOJ’s Executive Office for United States

Attorneys; and (3) Michael Seidel, Acting Section Chief of the FBI

Record/Information Dissemination Section, Information

Management Division. In FOIA cases, courts accord such

declarations “a presumption of good faith,” Carney v. DOJ, 19 F.3d

807, 812 (2d Cir. 1994) (internal quotation marks omitted), such that,

at least as to unchallenged facts asserted therein, the declarations can

be relied on to support an award of summary judgment, see Grand

Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999) (stating that
5

summary judgment may be granted to government on basis of its

own affidavits if they are sufficiently detailed and “not called into

question by contradictory evidence in the record or by evidence of

agency bad faith” (internal quotation marks omitted)).

I. The Investigation

Between 2018 and 2019, DOJ prosecutors in the SDNY, working

in conjunction with agents of the FBI, conducted the Investigation

here at issue. A single prosecution resulted, that of Trump

Organization attorney Michael Cohen. On August 21, 2018, Cohen

pleaded guilty to an eight-count information charging him with

violations of campaign-finance, tax, and financial-fraud laws insofar

as he (1) paid money to two women in amounts exceeding individual

campaign contribution limits;3 (2) issued those payments from a

corporation in violation of the prohibition on corporate campaign

contributions; and, unrelatedly, (3) evaded personal income tax

liability; and (4) made false statements to a bank to secure a loan.

Prior to this FOIA action, defendants had never publicly identified

any persons—other than Cohen—interviewed in the course of the

3 The alleged campaign contributions were payments of more than $100,000 each to 

purchase the rights to two women’s stories of claimed affairs with Donald Trump, which 

payments were intended to prevent such stories from influencing the 2016 presidential 

election. See Gov’t Sentencing Mem., United States v. Cohen, No. 1:18-CR-602, ECF No. 27, 

at 11–14 (S.D.N.Y. Dec. 7, 2018). 
6

Investigation, much less identified any such persons as “targets” or

“subjects.”4 

II. The FOIA Request

American Oversight describes itself as a “nonpartisan,

nonprofit watchdog that uses public records requests backed by

litigation to fight corruption, drive accountability, and defend

democracy.”5 On July 22, 2019, it filed with both DOJ and the FBI the

FOIA request here at issue. Therein, American Oversight sought

production of the following materials:

1. All FBI form 302s reflecting the content of 

all interviews conducted as a part of the 

government’s investigation of potential 

campaign finance violations committed by 

President Trump, the Trump Organization, 

Michael Cohen, or others representing 

President Trump or the Trump 

Organization, as well as any other 

investigation of other potential violations 

related to that investigation (including, for 

example, obstruction of justice). . . . 

4 Defendants advise that certain persons—Cohen, Keith Davidson, and John Gauger—

themselves publicly acknowledged being interviewed. See infra at 9. Press reports also 

identified—although defendants never confirmed—that persons interviewed in 

connection with the Investigation included former White House Communications Director 

Hope Hicks and former Director of Oval Office Operations Keith Schiller. See N. Hong, R. 

Ballhaus, & R. Davis O’Brien, Hush-Money Probe Gathered Evidence from Trump’s Inner Circle,

Wall St. J. (Apr. 10, 2019), https://www.wsj.com/articles/hush-money-probe-gatheredevidence-from-trumps-inner-circle-11554897911. 

5 See About, American Oversight, http://www.americanoversight.org/about (last visited 

Aug. 15, 2022).
7

2. All other records intended to summarize, 

memorialize, or record witness interviews 

or witness statements collected or used in 

the investigation(s) described in Item 1, 

including written proffers, written 

summaries of oral proffers, transcripts or 

recordings of any witness interviews or 

statements, and any other record 

summarizing, memorializing, or 

reproducing the content of witness 

interviews or statements collected or used in 

connection with the above-described 

investigation.

J. App’x at 18–19. American Oversight requested such materials for 

the period from September 1, 2016, through the date of search and 

asked that they be produced “at least within twenty business days.” 

Id. It submitted that expedited production was warranted by 

“widespread and exceptional media interest” in the Investigation and 

“possible questions concerning the government’s integrity” in 

conducting it, particularly “public concerns that DOJ has not pursued 

criminal charges against [then-President Trump] because of his 

position of power rather than the absence of evidence of his guilt.” Id. 

at 21–22.

III. The FOIA Action

A. The Complaint

On September 4, 2019, after defendants still had not produced 

the requested materials, American Oversight commenced this 

lawsuit, charging defendants with violating the FOIA and requesting 

an order that, among other things, would direct defendants (1) to 
8

conduct the necessary searches expeditiously, and (2) to produce “any 

and all non-exempt records responsive to American Oversight’s 

FOIA request and indexes justifying the withholding of any 

responsive records withheld under claim of exemption.” Id. at 16. In 

their October answer, defendants stated that they “had not completed 

processing of the FOIA request,” id. at 29, and asserted as a defense 

that “[s]ome or all of the requested records and information are 

exempt from disclosure, in whole or in part,” id. at 31.

B. The Withheld or Redacted Documents

The parties subsequently conferred, whereupon, on February 

7, 2020, DOJ—acting on behalf of both defendants—identified 30 

responsive documents, five of which it produced in part and 25 of 

which it withheld in full. On June 19, 2020, DOJ produced redacted 

versions of two previously withheld documents. To justify its 

withholdings and redactions, DOJ invoked FOIA Exemptions 3, 5, 6, 

7(A), 7(C), and 7(E). See 5 U.S.C. § 552(b). American Oversight agreed 

not to challenge these exemptions as to three of the 30 identified 

documents, leaving 27 at issue. 

AUSA McKay described the 27 disputed documents as 

interview records, of which 21 are Form FD-302s (“302s”) produced 

by FBI special agents;6 three are interview memoranda prepared by 

SDNY special agents; and three are handwritten notes, two prepared 

6 An FBI guide referenced by the parties indicates that agents use 302s to memorialize 

interviews “[w]hen it is anticipated that the results of an interview may become the subject 

of court testimony.” See FBI, Domestic Investigations and Operations Guide § 18-33 (Mar. 3, 

2016). The guide further states that 302s “must contain a record of statements made by the 

interviewee and not contain the interviewer’s opinion or contextual comments.” Id. 
9

by prosecutors and one by an FBI special agent. McKay Decl. ¶ 11. 

McKay further stated that for “22 of the 27” memorialized interviews, 

“prosecutors conducted the questioning.” Id. ¶ 14. The other five 

interviews were conducted by agents (with a prosecutor participating 

in one such interview by telephone), but only after discussions with 

prosecutors as to “the topics to be covered and certain questions to be 

asked.” Id.

In terms of substantive information, the redacted documents

disclose the identity of three interviewees—Michael Cohen, Keith 

Davidson, and John Gauger—who had already publicly 

acknowledged being interviewed. The documents further reveal that 

Cohen and Davidson were interviewed pursuant to “proffer 

agreements.”7 Redactions otherwise delete from the documents the 

contents of these persons’ interviews, except for the following 

previously published statement by Cohen: 

COHEN did not want the payments to 

“come out,” and COHEN felt that, after the 

search of his premises, he was “an open 

book[.]” COHEN felt that his false 

statements to the House of Representatives 

and the Senate were “a big concern.” 

J. App’x at 158.8

7 Such agreements frequently afford an interviewee use immunity for statements made 

during the interview. See, e.g., United States v. Blau, 159 F.3d 68, 71 (2d Cir. 1998); United 

States v. Cruz, 156 F.3d 366, 368 (2d Cir. 1998).

8 Defendants advise that the statement was published in Special Counsel Robert Mueller’s 

2019 “Report on the Investigation into Russian Interference in the 2016 Presidential 

Election.”
10

C. Summary Judgment Motions

The parties cross-moved for summary judgment. In support of 

their motion, defendants argued, inter alia, that the 27 interview 

records at issue were attorney work product, shielded from 

production by FOIA Exemption 5.9 To support their claim, 

defendants primarily relied on AUSA McKay’s declaration, which 

states in relevant part that the withheld interview records “were

prepared in anticipation of litigation.” McKay Decl. ¶ 13.

Specifically, prosecutors and/or Special 

Agents acting at the substantial direction of 

prosecutors conducted these interviews in 

connection with the prosecutors’ evaluation 

of whether criminal prosecutions were 

warranted. The interviews were recorded 

[i.e., memorialized in writing] to gather and 

assess the extent to which evidence could be 

obtained to support criminal charges and 

that could be presented to a grand jury or at 

trial. The prosecutors anticipated the 

9 We focus here on Exemption 5 because it was the basis for the district court’s judgment. 

Defendants also invoked FOIA Exemptions 6 and 7(C), which shield certain records, “the 

disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 

5 U.S.C. § 552(b)(6), (b)(7)(C). They did not rely on FOIA Exemptions 3, 7(A), or 7(E)

despite invoking them earlier. Exemption 7(A), which pertains to any law enforcement 

record—not just work product—the disclosure of which “could reasonably be expected to 

interfere with enforcement proceedings,” id. § 552(b)(7)(A), might well have shielded the 

disputed documents during the life of the Investigation. See Grand Cent. P’ship, Inc. v. 

Cuomo, 166 F.3d at 485 n.5 (“[Exemption 7(A)] is not applicable in the absence of some 

evidence that ‘enforcement proceedings’ are actually being conducted.”); see also Citizens 

for Resp. & Ethics in Washington v. DOJ, 746 F.3d 1082, 1097 (D.C. Cir. 2014) (holding that 

Exemption 7(A) does not apply after investigation concludes). But with the Investigation 

now seemingly concluded, defendants rely on Exemption 5, which shields work product 

even “after termination of the litigation for which the documents were prepared.” FTC v. 

Grolier Inc., 462 U.S. 19, 25–27 (1983).
11

potential for criminal charges during the 

investigation and at the time the witness 

interviews leading to the creation of 

interview records were conducted. The 

records were generated because of the 

prospect of litigation.

Id. 

McKay further states that “[d]isclosure of the interview records 

would reveal the prosecutors’ selection of witnesses to interview, as 

well as their mental impressions, legal theories, case analysis, and 

strategic decisions.” Id. ¶ 14. He maintains that “[d]isclosure of the 

questions asked by prosecutors would reveal the topics discussed 

(and not discussed) with each witness, the focus and emphasis of the 

prosecutors, and their thinking about the substance of the case.” Id.

D. The Summary Judgment Award for Defendants

On March 15, 2021, the district court denied summary 

judgment to American Oversight and granted it to defendants, 

relying exclusively on FOIA Exemption 5. See American Oversight 

v. DOJ, 2021 WL 964220, at *2 (holding documents “properly withheld 

in full or in part under FOIA Exemption 5 because they are attorney 

work product prepared in anticipation of litigation”); id. at *4 (finding 

it unnecessary to address arguments pertaining to Exemptions 6 and 

7(C)). In so ruling, the district court found that the records (1) had 

been prepared either by prosecutors or by agents working at the 

substantial direction of prosecutors; (2) had been prepared in 

anticipation of litigation; (3) had not been previously disclosed; and 

(4) that disclosure “would reveal prosecutors’ selection of witnesses 

to interview, as well as their mental impressions, legal theories, case 
12

analysis, and strategic decisions.” Id. at *3 (quoting McKay Decl.

¶ 36).

In urging otherwise, American Oversight had argued that the 

records were not work product because, at the time of their creation, 

the government anticipated their disclosure during any subsequent 

prosecutions. The district court was not persuaded, observing that 

“[d]isclosure obligations are different under the FOIA and in criminal 

proceedings.” Id. American Oversight also had argued that the 

government failed to show that memorializing agents were acting 

under the substantial direction of prosecutors (as required for nonlawyer memoranda to constitute attorney work product), but the 

district court found to the contrary based on AUSA McKay’s

declaration. See id. at *4.

Finally, the district court rejected the argument on which

American Oversight primarily relies on this appeal: that DOJ waived 

any work-product protection “because the content of the interviews 

necessarily was disclosed to the DOJ’s litigation adversaries, the very 

people who were interviewed.” Id. at *3. The district court reasoned 

that (1) the documents themselves—notes and memoranda 

memorializing interviews—had never been shared with any 

interviewees; (2) the documents “necessarily reflect” undisclosed 

matters such as “the thought process of those who created them—

including what is omitted, what is recorded, how it is recorded, how 

it is characterized, what is emphasized, how it is organized, and so 

forth”; and (3) releasing the documents “would reveal the never 

disclosed fact of who were the uncharged subjects and targets” of the 

investigation. Id. 
13

After the district court’s March 16, 2021 entry of final judgment 

for defendants, American Oversight timely filed this appeal.

DISCUSSION

I. The FOIA and Its Exemptions

We review de novo an award of summary judgment in a FOIA 

case. See, e.g., New York Times Co. v. DOJ (“N.Y. Times v. DOJ”), 939 

F.3d 479, 488 (2d Cir. 2019). In conducting such review here, we are 

mindful both that FOIA “strongly favor[s] public disclosure of 

information in the possession of federal agencies” and that an agency

withholding documents responsive to a FOIA request bears the 

burden of showing that a FOIA exemption shields the materials at 

issue. Knight First Amend. Inst. at Columbia Univ. v. U.S. Citizenship & 

Immigr. Servs. (“Knight v. USCIS”), 30 F.4th 318, 327 (2d Cir. 2022). 

An agency can carry this burden at the summary judgment 

stage through sworn declarations that are factually uncontroverted 

and sufficiently detailed to have the exemption appear “logical and 

plausible.” Id. (citation omitted). As this court recently stated in 

Knight v. USCIS,

Summary judgment is appropriate where 

the agency declarations describe the 

justifications for nondisclosure with 

reasonably specific detail, demonstrate that 

the information withheld logically falls 

within the claimed exemption, and are not 

controverted by either contrary evidence in 

the record or by evidence of agency bad 

faith.
14

Id. (internal quotation marks omitted). Upon such a showing, a 

plaintiff who nonetheless seeks to compel disclosure “must make a 

showing of bad faith on the part of the agency . . . or provide some 

tangible evidence that an exemption claimed by the agency should 

not apply or summary judgment is otherwise inappropriate.” Carney 

v. DOJ, 19 F.3d at 812 (citations omitted).

The FOIA affords nine, exclusive exemptions from its 

otherwise broad disclosure obligations. See 5 U.S.C. § 552(b)(1)–(9).

In other words, the FOIA is “structured [so that] virtually every 

document generated by [a federal] agency is available to the public in 

one form or another, unless it falls within one of the Act’s nine 

exemptions.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975). 

Each exemption identifies an important interest—e.g., national 

security, foreign policy, fair trials, unobstructed criminal 

investigations, the adversarial process, personal privacy—that “may 

at times conflict with [the FOIA’s] policy of full disclosure,” Halpern 

v. FBI, 181 F.3d 279, 286–87 (2d Cir. 1999), but that Congress,

nevertheless, deems sufficiently important to “outweigh the need for 

transparency,” Knight v. USCIS, 30 F.4th at 321. Because these 

exemptions limit the broad disclosure otherwise required by the 

FOIA, we construe them narrowly. See Long v. Off. of Pers. Mgmt., 692 

F.3d 185, 190 (2d Cir. 2012). At the same time, we recognize that the 

interests served by the exemptions “are as much a part of [the] FOIA’s 

purposes and policies as the statute’s disclosure requirement.” Food 

Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019) 

(alterations and internal quotation marks omitted). 
15

With these principles in mind, we proceed to consider the 

exemption here at issue, FOIA Exemption 5; its protection of attorney 

work product; and defendants’ claim to that protection.

II. FOIA Exemption 5 and Work-Product Protection

FOIA Exemption 5 shields from disclosure “inter-agency or 

intra-agency memorandums or letters that would not be available by 

law to a party other than an agency in litigation with the agency.” 

5 U.S.C. § 552(b)(5). The Supreme Court has instructed that “[t]he test 

under Exemption 5” is not whether such documents might ever be 

disclosed in civil litigation, but “whether the documents would be 

‘routinely’ or ‘normally’ disclosed upon a showing of relevance.” 

FTC v. Grolier Inc., 462 U.S. 19, 26 (1983). Thus, “[c]ourts universally 

read [Exemption 5] to mean that agency documents that would be

privileged in ordinary civil discovery are also protected from 

disclosure under FOIA.” N.Y. Times v. DOJ, 939 F.3d at 488. 

Among the documents that would be privileged in ordinary 

civil discovery are those constituting “attorney work product.” Id.10 

On this point, the Supreme Court has observed that “Congress had 

the attorney’s work-product privilege specifically in mind when it 

adopted Exemption 5.” NLRB v. Sears, Roebuck & Co., 421 U.S. at 154 

(citing S. Rep. No. 813, 89th Cong., 1st Sess., 2 (1965)). Moreover, 

Congress contemplated that such work-product protection would 

10 It has been observed that the protection afforded attorney work product is not a “true 

privilege[]” because it can be overcome upon a showing of need. E. Imwinkelried, The New 

Wigmore: A Treatise on Evidence: Evidentiary Privileges § 1.3.11 (4th ed. 2022); see infra at 20–

21 (discussing need showing). “Nevertheless, like most courts, we will for convenience” 

sometimes refer to the protection afforded attorney work product by law as a “privilege.” 

N.Y. Times v. DOJ, 939 F.3d at 489 n.4. 
16

extend to government attorneys. See id. (citing Senate Report and case 

law in concluding that Exemption 5 protection for work product 

applies to working papers of government attorneys). 

A. Hickman v. Taylor

By comparison to evidentiary privileges such as the attorneyclient or spousal privileges, which derive from common law, 

attorney-work-product protection was recognized only in the last 

century. The trigger was the adoption of the Federal Rules of Civil 

Procedure, which took effect in 1938. While these rules established

“liberal discovery mechanisms” to streamline the production of 

evidence in civil litigation, they gave rise to a concern that “if 

litigators aggressively employed their new discovery tools, that 

development would reduce attorneys’ incentive to gather all relevant 

data” because of a “fear that they might be gathering damning 

evidence that they would later have to surrender to the opposition.” 

E. Imwinkelried, The New Wigmore: A Treatise on Evidence: Evidentiary 

Privileges § 1.3.11 (4th ed. 2022) [hereinafter “Wigmore: Evidence”]. 

The Supreme Court first addressed this concern in Hickman v. 

Taylor, 329 U.S. 495 (1947). The Court there recognized that “[p]roper 

preparation of a client’s case demands that [the attorney] assemble 

information, sift what he considers to be the relevant from the 

irrelevant facts, prepare his legal theories and plan his strategy

without undue and needless interference.” Id. at 511. The Court 

observed that these efforts are “reflected, of course, in interviews, 

statements, memoranda, correspondence, briefs, mental impressions, 

personal beliefs, and countless other tangible and intangible ways” 

aptly termed attorney “work product.” Id. The Court concluded that
17

the compelled disclosure of such attorney work product would have 

a seriously detrimental effect on the adversarial system, which itself 

plays a critical role in the administration of justice:

Were such materials open to opposing 

counsel on mere demand, much of what is 

now put down in writing would remain 

unwritten. An attorney’s thoughts, 

heretofore inviolate, would not be his own. 

Inefficiency, unfairness and sharp practices 

would inevitably develop in the giving of 

legal advice and in the preparation of cases 

for trial. The effect on the legal profession 

would be demoralizing. And the interests 

of the clients and the cause of justice would 

be poorly served.

Id. To safeguard against such consequences, the Supreme Court read 

into the fledgling Rules of Civil Procedure an implicit protection for 

“the ‘Work product of the lawyer,’” shielding it from discovery. Id. 

at 511–12.

The documents afforded work-product protection in Hickman

were signed statements and (as here) interview memoranda, which 

the attorney for a tugboat owner had gathered from survivors of, or 

witnesses to, a fatal tugboat accident. In subsequent litigation, 

decedents’ representatives sought discovery of the documents. The 

attorney refused and was held in contempt. Although the contempt 

was reversed on appeal, the Supreme Court agreed to review the case 

in light of “[t]he importance of the [discovery] problem, which has 

engendered a great divergence of views among district courts.” Id. at 

500. 
18

Observing that the demanded documents were not protected 

by the attorney-client privilege, see id. at 508 (explaining that

attorney’s communications had been with third parties, not clients), 

the Supreme Court nevertheless unanimously ruled them “outside 

the arena of discovery,” reasoning that “[n]ot even the most liberal of 

discovery theories can justify unwarranted inquiries into the files and 

the mental impressions of an attorney,” id. at 510. The Court

explained that an attorney’s ability to “work with a certain degree of 

privacy, free from unnecessary intrusion by opposing parties and 

their counsel,” is “essential to an orderly working of our system of 

legal procedure.” Id. at 510, 512; see also id. at 516 (Jackson, J., 

concurring) (observing that, in adversarial system, “[d]iscovery was 

hardly intended to enable a learned profession to perform its 

functions . . . on wits borrowed from the adversary”). Deeming it 

“instrumental” to the adversarial system and, therefore, to the 

administration of justice, that “attorneys have the maximum incentive 

to prepare for trial by creating and gathering useful litigation-related 

material,” the Court in Hickman shielded such material from civil 

discovery. Wigmore: Evidence § 1.3.11.11

In so ruling, Hickman clarified the scope of the nascent workproduct doctrine in two instructive ways. First, the Court recognized 

a broad range of materials to constitute attorney work product: 

“interviews, statements, memoranda, correspondence, briefs, mental 

impressions, personal beliefs, and countless other tangible and 

intangible [things].” Hickman v. Taylor, 329 U.S. at 511. In short, the 

11 The Supreme Court later acknowledged that the work-product doctrine also applies in 

the criminal context, observing that its “role in assuring the proper functioning of the 

criminal justice system is even more vital.” United States v. Nobles, 422 U.S. 225, 238 (1975). 
19

Court did not limit work product to materials that specifically

memorialized an attorney’s legal theories and strategy. Rather, it 

recognized work product also to include factual materials assembled 

by an attorney, such as the signed survivor statements and witness 

interview memoranda there collected by the tugboat owner’s

attorney. See id. Second, the Court instructed that, while workproduct protection shielded this broad range of materials, the 

protection it afforded was not absolute. Rather, “discovery [of work 

product] may properly be had” upon a showing of sufficient need. Id. 

The “burden,” however, “rests on the one who would invade 

[attorney] privacy to establish adequate reasons to justify 

production” of work product. Id. at 512.

B. Rule 26(b) Codifies the Work-Product Doctrine 

Hickman’s identification of implicit work-product protection in 

the then-existing Federal Rules of Civil Procedure met with some 

skepticism. See, e.g., 1 R. Mosteller et al., McCormick on Evidence § 96 

(8th ed. July 2022 update) (noting “labored path followed by the 

Court to the conclusion” that “qualified work product privilege was 

. . . covered by . . . rules as then written”). Concerns were allayed, 

however, by the 1970 codification of the work-product doctrine in 

Federal Rule of Civil Procedure 26(b). 

That rule states, in relevant part, that “[o]rdinarily, a party may 

not discover documents and tangible things that are prepared in 

anticipation of litigation or for trial by or for another party or its 
20

representative.” Fed. R. Civ. P. 26(b)(3)(A).12 As this court has 

observed, the quoted language sweeps broadly, such that documents 

memorializing “[n]ot only an attorney’s mental impressions and 

opinions about a case but also the results of the attorney’s factual 

investigations in anticipation of the case may constitute attorney 

work product.” N.Y. Times v. DOJ, 939 F.3d at 489.13 At the same time, 

however, the rule’s introductory word, “ordinarily,” signals that 

work-product protection is not absolute. Indeed, Rule 26 thereafter 

expressly states that attorney work product may be discovered if the 

materials at issue (i) “are otherwise discoverable” under the Federal 

Rules; and (ii) the requesting “party shows that it has 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)(A)(i)–(ii). Even upon such a showing, however, 

Rule 26 requires a court ordering discovery of work-product 

12 While the Supreme Court deems Rule 26 to “substantially incorporate[]” the workproduct doctrine identified in Hickman, see Upjohn Co. v. United States, 449 U.S. 383, 398 

(1981), some courts and commentators have suggested that Hickman furnishes protection 

beyond that provided by Rule 26, insofar as the latter pertains only to documents and 

tangibles. See 8 R. Marcus, Federal Practice & Procedure (Wright & Miller) § 2024 (3d ed. Apr. 

2022 update); see also United States v. Deloitte LLP, 610 F.3d 129, 135 (D.C. Cir. 2010) (stating 

that Rule 26 “partially codifie[s]” the work-product doctrine); Sporck v. Peil, 759 F.2d 312, 

316 (3d Cir. 1985) (same). We need not here pursue the point because American 

Oversight’s FOIA request pertains to documents and, for reasons stated herein, we 

conclude that both Rule 26 and Hickman support the award of summary judgment to 

defendants in this case.

13 This effectively, if not explicitly, rejects the conclusion reached by some district courts 

that witness statements—particularly verbatim statements—are work product only to the 

extent “they reveal an attorney’s strategic impressions and mental processes,” not when 

they merely record the witnesses’ factual observations. See N.Y. Times v. DOJ, 138 F. Supp.

3d 462, 471–72 (S.D.N.Y. 2015), aff’d in part, rev’d in part & remanded, 939 F.3d 479; see also

Murphy v. Kmart Corp., 259 F.R.D. 421, 431 (D.S.D. 2009). As the discussion in text shows, 

Rule 26 affords absolute protection to the former, and only qualified protection to the latter. 

Nevertheless, both are work product. American Oversight does not argue otherwise here.
21

materials to “protect against disclosure of the mental impressions, 

conclusions, opinions, or legal theories of a party’s attorney or other 

representative concerning the litigation.” Id. R. 26(b)(3)(B). In sum, 

Rule 26, like Hickman, recognizes as work product both the factual 

fruits of an attorney’s investigations—sometimes referred to as “fact 

work product”—and an attorney’s mental impressions and 

opinions—sometimes referred to as “opinion work product,” In re 

Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 

2007)—but it affords absolute protection only to the latter while 

affording qualified protection to the former. See N.Y. Times v. DOJ,

939 F.3d at 489; see also In re Sealed Case, 676 F.2d 793, 811 (D.C. Cir. 

1982) (observing that Hickman established “two-tiered structure” with 

“qualified protection for ‘fact’ work product and more absolute 

protection for ‘opinion’ work product”). 

III. The Withheld Materials Constitute Work Product

Upon de novo review, we conclude, as the district court did, that 

the 27 documents here at issue constitute attorney work product 

shielded from civil discovery by Fed. R. Civ. P. 26 and, thus, from 

disclosure by FOIA Exemption 5. 

That the materials constitute work product under Rule 26 is 

evident from AUSA McKay’s declaration, which states that the 

documents at issue were all “prepared in anticipation of litigation,”

specifically, the potential prosecution of campaign-finance-law 

violations or of obstruction of justice revealed by the Investigation. 

McKay Decl. ¶ 13; see Fed. R. Civ. P. 26(b)(3)(A). McKay further states 

that the materials at issue were prepared by law enforcement agents 

who were memorializing interviews conducted by federal 
22

prosecutors or by agents working under the substantial direction of 

prosecutors.14 This satisfies Rule 26’s broad definition of attorney 

work product as materials prepared “by or for a[] party or its 

representative (including . . . the party’s attorney . . . or agent).” Fed. 

R. Civ. P. 26(b)(3)(A). As the Supreme Court has recognized, one of 

the “realities of litigation in our adversary system . . . is that attorneys 

often must rely on . . . investigators and other agents in the 

compilation of materials in preparation for trial.” United States 

v. Nobles, 422 U.S. 225, 238 (1975). Thus, it affords work-product 

protection to “material prepared by agents for the attorney as well as 

those prepared by the attorney himself.” Id. at 238–39.

Prosecutors’ use of agents to conduct or memorialize 

interviews is not unusual in criminal investigations, and courts have 

frequently held 302s as well as prosecutors’ own memoranda to 

constitute attorney work product. See, e.g., N.Y. Times v. DOJ, 939 F.3d 

at 494 (holding prosecutorial memoranda to be work product); see also

Judicial Watch, Inc. v. DOJ, 806 F. App’x 5, 7 (D.C. Cir. 2020) (holding 

302s to warrant FOIA Exemption 5 work-product protection); SEC 

v. Collector’s Coffee Inc., No. 19-CV-4355, 2021 WL 391298, at *4–5 

(S.D.N.Y. Feb. 4, 2021) (holding SEC notes based on 302s protected 

work product); Leopold v. DOJ, 487 F. Supp. 3d 1, 11 (D.D.C. 2020)

14 While American Oversight argued in the district court that defendants had failed to show 

that non-attorney agents were working under the substantial direction of federal 

prosecutors, it does not maintain that argument on appeal and, thus, can be understood to 

have waived it. See, e.g., Chevron Corp. v. Donziger, 990 F.3d 191, 203 (2d Cir. 2021). 
23

(holding 302s protected by work-product privilege under FOIA 

Exemption 5).15

American Oversight nevertheless submits that it is “not even 

clear” that the documents at issue qualify as “work product” because 

defendants knew or should reasonably have recognized that these 

documents “would necessarily [have] be[en] turned over in any 

prosecution resulting from the investigation.” App’t Br. at 17.16 

American Oversight asserts that, in these circumstances, “the 

purposes of the [attorney-work-product] doctrine—ensuring a zone 

of privacy for litigation preparation—are not served by the protection 

of these memoranda.” Id. We are not persuaded.17 

First, American Oversight’s claim that the documents at issue 

would necessarily have been turned over in any ensuing prosecution 

is belied by the record. The sole defendant to be prosecuted as a result 

of the Investigation, Michael Cohen, pleaded guilty to an information 

before any obligations to disclose the disputed documents ever arose.

15 Two of the 302s afforded Exemption 5 protection by the district court in Leopold are at 

issue in this case.

16 American Oversight cites “longstanding policy” of the SDNY U.S. Attorney’s Office to 

support this argument. App’t Br. at 17 & n.10 (citing SDNY Discovery and Disclosure 

Policy (Oct. 15, 2010)). This appears to reference that office’s practices for complying 

(sometimes complying early) with disclosure obligations imposed by federal rule, statute, 

and the Constitution. See Fed. R. Crim. P. 16(a)(1)(A); 18 U.S.C. § 3500(a)–(b); Brady 

v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 153–55 (1972). 

17 Defendants submit—not without some force—that American Oversight failed 

adequately to preserve this argument for appeal. We need not decide the question because, 

even if we were to do so in American Oversight’s favor, its argument fails on the merits.
24

Second, attorneys prepare all sorts of documents that they know 

or reasonably anticipate will be turned over to adversaries in the 

course of litigation: motion papers, interrogatories, briefs, etc. 

Nevertheless, unless and until such documents are in fact turned 

over, they are recognized as protected work product. See Hickman 

v. Taylor, 329 U.S. at 511 (including “briefs” in list of documents 

entitled to work-product protection); Institute for Dev. of Earth 

Awareness v. People for Ethical Treatment of Animals, 272 F.R.D. 124, 125 

(S.D.N.Y. 2011) (holding that lawyers’ drafts of non-party witness 

affidavits “do not lose their character as work product because a final 

executed version has been affirmatively used in the litigation”).

Third, like the Court of Appeals for the D.C. Circuit, we 

conclude that the possibility that materials gathered or prepared by 

federal authorities may have to be produced in criminal discovery 

“has no bearing” on whether the materials constitute work product 

for purposes of a FOIA request. Williams & Connolly v. SEC, 662 F.3d 

1240, 1244 (D.C. Cir. 2011). “In criminal trials, evidentiary privileges 

may give way for any number of reasons . . . based on different legal 

standards than disclosure under FOIA.” Id. at 1244–45; see also supra 

at 23 n.16. FOIA Exemption 5, however, instructs courts to look to 

the rules governing federal civil—not criminal—litigation to 

determine whether the documents at issue would be discoverable by 

an opposing party. See N.Y. Times v. DOJ, 939 F.3d at 488 (observing 

that courts “universally” look to rules of “civil discovery” in applying 

Exemption 5). 

The documents here at issue would not ordinarily be 

discoverable under the civil rules, particularly Rule 26, and American 
25

Oversight does not contend otherwise. It may be that, once

prosecutors disclose attorney work product materials in a criminal 

proceeding, they can no longer claim work-product protection for 

purposes of Exemption 5. But that would result from waiver of the 

protection, not from the fact that the materials were never protected 

work product to begin with. See United States v. Nobles, 422 U.S. at 239 

(holding that counsel’s attempt to make testimonial use of work 

product materials at criminal trial waived protection).

Thus, like the district court, we conclude that the 27 documents 

at issue constitute protected work product. We, therefore, turn to 

American Oversight’s main argument on appeal: defendants’ 

purported waiver of work-product protection.

IV. Defendants Have Not Waived Work-Product Protection

for the Documents at Issue

A. Waiver of Work-Product Protection

Like other discovery privileges, work-product protection is 

waivable. Such waiver precludes reliance on FOIA Exemption 5 to 

withhold or redact responsive documents. See N.Y. Times v. DOJ, 939 

F.3d at 494. But just as it is the party invoking work-product 

protection (here, defendants) that bears the burden of demonstrating 

that a withheld document qualifies as such, it is the party asserting 

waiver (here, American Oversight) that bears the burden of 

demonstrating that the protection has been forfeited. See Knight

v. USCIS, 30 F.4th at 332–33 (noting that, in FOIA context, burden of 

establishing waiver—there, of protection under Exemption 7(E)—is 

on requester); see also Hickman v. Taylor, 329 U.S. at 512 (stating that 
26

“burden rests on the one who would invade [attorney] privacy to 

establish adequate reasons to justify production”).

“A party waives the work product protection by taking actions 

inconsistent with . . . its purpose.” N.Y. Times v. DOJ, 939 F.3d at 494; 

see also Merrill Lynch & Co., Inc. v. Allegheny Energy, Inc., 229 F.R.D. 

441, 445 (S.D.N.Y. 2004) (“Generally speaking, the work product 

privilege should not be deemed waived unless disclosure is 

inconsistent with maintaining secrecy from possible adversaries.” 

(internal quotation marks and alterations omitted)) (quoted 

approvingly in N.Y. Times v. DOJ, 939 F.3d at 494–95). As noted supra 

at 16–17, the purpose for which the law affords work-product 

protection is to ensure a vital adversarial process, which, in turn, 

serves the proper administration of justice. Actions inconsistent with 

this purpose can include the “disclos[ure of] work product,” whether 

to the public at large or to an actual or anticipated litigation 

“adversary.” N.Y. Times v. DOJ, 939 F.3d at 494; accord In re Steinhardt 

Partners, L.P. (“Steinhardt Partners”), 9 F.3d 230, 235 (2d Cir. 1993) 

(“Once a party allows an adversary to share the otherwise privileged 

thought processes of counsel, the need for the privilege disappears.”).

Waiver by disclosure to an adversary, moreover, affords other 

persons access to the disclosed work product. See Steinhardt Partners, 

9 F.3d at 235 (rejecting idea of selective disclosure adopted by some 

courts and holding that company’s transmittal to SEC—a potential 

litigation adversary—of memorandum prepared by company

attorney in response to agency inquiry waived document’s workproduct protection as to shareholder plaintiffs in subsequent 

litigation). 
27

Further, while waiver by disclosure can be made by 

transmitting the actual work-product document to a potential 

adversary, as was the case in Steinhardt Partners, it can also be made

through statements describing the protected document with 

“sufficient[] specific[ity].” N.Y. Times v. DOJ, 939 F.3d at 494–95 

(holding that Attorney General’s public statements discussing 

contents of confidential DOJ memoranda waived work-product 

privilege as to those parts of memoranda discussed with specificity,

but not as to other parts not discussed with specificity). The 

statements found to effect waiver by disclosure in N.Y. Times v. DOJ

were made to the public at large, rather than to a litigation adversary. 

Nevertheless, the reasoning of N.Y. Times v. DOJ applies in both 

contexts. 

In applying the waiver principles just outlined, we are mindful 

that Steinhardt Partners cautions against “rigid” rules. 9 F.3d at 236. 

In that case, this court specifically “decline[d] to adopt a per se rule 

that all voluntary disclosures to the government waive work product 

protection.” Id.18 Rather, it instructed that “[c]rafting rules relating to 

[work-product] privilege in matters of governmental investigations 

must be done on a case-by-case basis,” id., with “[c]ommon sense and 

the practicalities of litigation defin[ing] the limits of the work product 

doctrine,” id. at 235; accord N.Y. Times v. DOJ, 939 F.3d at 495 (quoting 

Steinhardt Partners).

18 The court observed that in some circumstances, the disclosing party and the government 

might “share a common interest in developing legal theories and analyzing information,” 

or they may “have entered into an explicit agreement that the SEC will maintain the 

confidentiality of the disclosed materials.” Steinhardt Partners, 9 F.3d at 236. Defendants 

do not contend that those are the circumstances here.
28

Following those instructions here, we conclude that defendants 

did not waive work-product protection with respect to the documents 

at issue.

B. Defendants Did Not Waive Work-Product Protection 

When Interviewing the Subjects or Targets of Their 

Investigation

The gravamen of American Oversight’s argument on appeal is 

that defendants waived any work-product protection for documents

memorializing interviews with the targets or subjects of the 

Investigation because (1) such subjects or targets were litigation 

adversaries (2) to whom the contents of the documents at issue had 

necessarily been disclosed in the course of their interviews. We need 

not here decide whether American Oversight’s first point is correct 

because, even if we were to accept its characterization of targets and 

subjects as litigation adversaries arguendo, its waiver argument fails.19

19 American Oversight cites Steinhardt Partners to support its characterization of targets and 

subjects as DOJ’s litigation adversaries. In Steinhardt Partners, this court held that a 

company that was the “subject” of an SEC investigation was in an adversarial relationship 

with the agency although no formal enforcement action had yet been instituted. Thus, 

when the company submitted a memorandum prepared by its attorneys to the SEC in 

response to an agency request, this court held that the company waived any work-product 

protection for the document and, therefore, had to produce it in response to shareholders’ 

request. See Steinhardt Partners, 9 F.3d at 234. This was no novel conclusion; other courts 

had similarly ruled with respect to SEC investigations. See, e.g., Westinghouse Elec. Corp. 

v. Republic of Philippines, 951 F.2d 1414, 1428 (3d Cir. 1991) (professing “no difficulty” in 

concluding that “target” of SEC and DOJ investigations, which had disclosed documents 

to agencies after reaching plea agreement, was adversary of those agencies); In re Subpoenas 

Duces Tecum, 738 F.2d 1367, 1369, 1372 (D.C. Cir. 1984) (stating “no question” that party 

was in adversarial relationship to SEC when it made disclosures to agency pursuant to 

program promising wrongdoers “more lenient treatment” and “chance to avoid formal 

investigation and litigation” (internal quotation marks omitted)). 
29

In reaching that conclusion, our reasoning departs somewhat 

from that of the district court. For example, we do not reject American 

Oversight’s waiver claim because the requested documents were not 

themselves ever disclosed to any litigation adversary. Rather, we 

assume that disclosure amounting to waiver can be made through 

statements distinct from the work-product document, provided those 

statements are “sufficiently specific” in revealing the latter’s content. 

N.Y. Times v. DOJ, 939 F.3d at 496. The problem for American 

Oversight, as we explain in more detail below, is that it cannot show 

that the statements on which it relies, all made during investigatory 

interviews, waived work-product protection for documents created 

thereafter. It is in this context that the fact that the documents 

themselves were never disclosed is relevant. We also do not reject

American Oversight’s waiver claim solely because the documents at 

issue reveal attorney opinions and strategies. That fact might well 

preclude discovery of such material even on a showing of need. See 

Fed. R. Civ. P. 26(b)(3)(B). But if defendants actually waived attorneywork-product protection for the documents at issue, they could not 

There is, however, reason to proceed cautiously in concluding that Steinhardt Partners

supports the identification of the adversarial relationship urged here by American 

Oversight. Notably, it is not apparent that in Steinhardt Partners and the other SEC cases

cited, courts were using the words “target” and “subject” as defined in DOJ policy. See 

supra at 3 n.2. DOJ defines the “target” of a criminal investigation as someone who, based 

on the evidence, can be denominated as a “putative defendant.” Justice Manual § 9-11.151.

By contrast, it defines a “subject” as anyone whose “conduct”—whether innocent or 

suspicious—is “within the scope of the grand jury’s investigation.” Id. Even if a “putative 

defendant” might be deemed a litigation adversary of the government for purposes of 

identifying waivers of work-product protection, it is more questionable whether that 

conclusion obtains with respect to every person whose conduct is within the scope of a 

grand jury’s investigation. We do not explore the point further. Instead, we assume 

arguendo that Investigation targets or subjects were defendants’ litigation adversaries 

because, even doing so, we conclude for reasons stated in text that American Oversight’s 

waiver argument fails.
30

avoid disclosure even of opinions and strategies contained therein. 

But there was no such waiver here. 

To explain, we start with the unusual chronology underlying 

American Oversight’s waiver claim. A waiver of work-product 

protection generally occurs when an attorney discloses to a litigation 

adversary the contents of a protected document. This presupposes 

the existence of the document before disclosure is made. In such 

circumstances, the attorney’s disclosure of the existing document’s 

contents—whether made by transmitting the document itself, as in 

Steinhardt Partners, or by describing its contents with specificity, as in 

N.Y. Times v. DOJ—is an action sufficiently inconsistent with 

maintaining the confidentiality of the work product as to be 

recognized as a waiver. 

American Oversight, however, proposes to turn this waiver 

principle around, arguing that an attorney can waive protection for 

work-product documents even before the documents exist. 

Specifically, American Oversight reasons that, by interviewing 

targets and subjects in this case, defendants necessarily disclosed to 

those litigation adversaries any and all matters discussed during the 

interview and, thereby, waived work-product protection for 

documents subsequently created to memorialize those interviews. 

The reasoning is flawed in several respects. 

First, it is difficult to reconcile with Rule 26, which affords 

work-product protection to “documents and tangible things.” Fed. R. 

Civ. P. 26(b)(3)(A). The Rule thus appears to contemplate the 

existence of a document before work-product privilege can attach to it, 

and, therefore, before that protection is waived. But even assuming 
31

that, in some circumstance, waiver might precede work-product 

documentation, American Oversight’s argument that this is such a 

case suffers other, more serious flaws.

Second, while any interviewed targets or subjects may have 

heard what was said during their interviews, what was not disclosed 

to them was how defendants would memorialize the interviews in 

documents subsequently prepared in anticipation of litigation. By 

interviewing purported litigation adversaries, defendants did 

nothing to signal that they had no interest in maintaining the 

confidentiality of that yet-to-be-created work product. 

Indeed, in deciding how to memorialize an interview—

including an interview with a litigation adversary—an attorney (or 

his agent) necessarily makes choices about structure, content, 

wording, emphasis, etc., that can reveal his thinking about the 

interview, his theories of investigation, and areas for possible further 

inquiry.20 That work product, not revealed to the interviewed

litigation adversary, is shielded by Rule 26 and Hickman, and nothing 

in defendants’ interview conduct was inconsistent with maintaining 

that protection.

In seeking to avoid that conclusion, American Oversight 

emphasizes that, in preparing 302s, FBI agents are instructed to 

recount only what a witness said and not the interviewer’s opinions 

20 For example, an attorney may conduct an interview in a seemingly straightforward, 

chronological manner, thereby mixing insignificant inquiries with critical ones, the better 

to conceal what the attorney already knows or does not know about the matter at issue 

and his theories of the case. But he may then structure his memorialization of that 

interview in a completely different manner, e.g., by reference to topics, persons, or events, 

thereby exposing the focus of his concerns, theories, and developing strategies.
32

or contextual comments. See supra at 8 n.6. But even following such 

instructions, an agent must make myriad choices—about what parts 

of the interview to recount in detail and what parts to summarize; 

when to quote responses and when to paraphrase them; whether to 

track the order of the interview, the chronology of the events 

discussed, or the topics covered—that can reveal impressions, 

opinions, and theories without expressly stating them. In his 

declaration, AUSA McKay states that such is the case here, and 

American Oversight has adduced no evidence to the contrary.21

Third, and in any event, American Oversight seriously 

overstates what defendants disclosed at interviews with any targets or 

subjects. Defendants may have disclosed their own questions to the 

interviewees, but it was the interviewees who disclosed their 

answers. As to those answers—which are the crux of what is 

memorialized in the documents American Oversight seeks—

defendants cannot be charged with the disclosure necessary to 

demonstrate waiver. To the contrary, by memorializing answers 

disclosed to them by targets and subjects of their investigation, 

defendants created classic work product. See Hickman v. Taylor, 329 

U.S. 495.22 It is in that context that it becomes significant that, 

21 The few disclosed sentences from the otherwise redacted Cohen 302 demonstrate agent 

choices in paraphrasing and quoting interview answers. See supra at 9. 

22 American Oversight strives to distinguish this case from Hickman on the grounds that 

the interviewees there were not litigation adversaries and, thus, the Supreme Court had 

no reason to consider waiver. We agree that Hickman says nothing about waiver, but that 

silence is not readily attributed to the interviewees’ non-adversary status. While the most 

obvious potential litigation adversaries in Hickman were the deceased victims’ estates, a 

competent attorney, in interviewing survivors of such a deadly accident, would have 

recognized that they too might have claims for physical or emotional injury and, thus, be 
33

defendants thereafter never disclosed the protected documents or 

their contents to anyone. In short, with respect to their interviewees’ 

answers, defendants never acted in a way “inconsistent” with 

affording work-product protection to the memorializing documents. 

N.Y. Times v. DOJ, 939 F. 3d at 494. 

Fourth, insofar as defendants disclosed questions to interview 

subjects and targets, American Oversight has not specifically argued 

for production of such parts of the requested documents as 

memorialize those questions, absent the answers. Even if such an 

argument might be inferred from American Oversight’s general 

reliance on FOIA’s segregability requirement,23 and from its response 

to defendants’ argument for protection of their questions,24 it fails to 

persuade. That is because American Oversight has adduced no 

evidence showing a sufficiently specific match between the questions 

asked at the interview and how any such questions would have been 

recorded in protected documents. See N.Y. Times v. DOJ, 939 F.3d at 

497.

potential adversaries. In sum, we are not persuaded that American Oversight can dismiss 

Hickman in urging that work-product protection does not apply to memoranda 

memorializing attorney interviews with litigation adversaries. 

23 “Any reasonably segregable portion of a record shall be provided to any person 

requesting such record after deletion of the portions which are exempt under this 

subsection.” 5 U.S.C. § 552(b).

24 Defendants oppose the disclosure of questions because that would reveal “the topics 

discussed (and not discussed) with each witness, the focus and emphasis of the 

prosecutors, and their thinking about the substance of the case.” App’ee Br. at 9. American 

Oversight replies that to the extent such matters were disclosed to litigation adversaries 

during the interview, the prosecution waived its interests in maintaining the 

confidentiality of these matters.
34

The FBI guide on which American Oversight relies instructs 

that 302s should “contain a record of statements made by the 

interviewee.” FBI, Domestic Investigations and Operations Guide § 18-33 

(Mar. 3, 2016). Nothing in that guide instructs agents to record 

questions. Thus, consistent with the guide, an agent could well 

memorialize an interviewee’s statements in narrative form with no 

reference to questions as, for example, by indicating that, “The 

witness stated . . . ,” or “The witness reported . . . ,” or “The witness 

admitted . . . .” Or, consistent with the guide, an agent might contract 

a series of questions asked into one summary question before then 

recounting the interviewee’s responses in detail.25 In both 

circumstances it is difficult to conclude that the urged disclosure—the 

posing of particular questions at the interview—describes the 

resulting work product with the specificity necessary for waiver. See 

N.Y. Times v. DOJ, 939 F.3d at 495, 497. 

Nor would the possibility of inferring the questions asked from 

the memorialized answers warrant any FOIA disclosure, as the 

questions would then not be “reasonably segregable” from the 

memorialized answers for which there has been no waiver of workproduct protection. 5 U.S.C. § 552(b); see, e.g., ACLU of N. Cal. v. DOJ, 

880 F.3d 473, 488–89 (9th Cir. 2019) (stating that where protected work 

product is “so closely intertwined with” unprotected material “that 

the two categories of material cannot be easily separated,” 

segregation of non-exempt material is not possible); cf. N.Y. Times

25 For example, a 302 might summarize a series of identification questions as follows: 

“Asked about his background, [name] stated as follows . . . ,” before then detailing what 

the interviewee said about name[s], residences, relatives, education, employment, arrest 

records, etc. 
35

v. DOJ, 939 F.3d at 496–97 (holding, in context of agency legal 

memoranda, disclosure of certain information did not waive workproduct protection for other segregable parts of document).26

Accordingly, because we conclude that American Oversight 

has failed to demonstrate that defendants waived the work-product 

protection afforded by Fed. R. Civ. P. 26 and FOIA Exemption 5 with 

respect to the documents sought, we affirm the award of judgment in 

favor of defendants.27

26 To the extent these problems of specificity and severability derive from the fact that a 

written memorialization of an interview is necessarily distinct from the interview itself 

because of choices made as to how to document the latter, this only reinforces our second

reason for rejecting the waiver argument, i.e., that the written memorialization reflects 

work product never revealed in the interview.

27 American Oversight makes no particular argument for defendants to produce, at a 

minimum, such parts of the disputed documents as identify interviewed persons as 

“subjects” or “targets.” Such an argument would, in any event, be unsuccessful. As a 

matter of waiver by disclosure of work-product protection, no evidence shows that subject 

status was disclosed to interviewees or that anyone other than Michael Cohen was a target. 

See supra at 28–29 n.19. We thus need not here consider—or remand for the district court 

to consider—whether documents memorializing such statuses for persons never charged 

with a crime would be shielded by FOIA Exemption 7(C). See 5 U.S.C. § 552(b)(7)(C) 

(protecting against unwarranted invasions of personal privacy); National Archives & Recs. 

Admin. v. Favish, 541 U.S. 157, 166 (2004) (noting “special reason” to protect personal data 

under Exemption 7(C) because law-enforcement documents “often contain information 

about persons interviewed as witnesses or initial suspects but whose link to the official 

inquiry may be the result of mere happenstance”); Neely v. FBI, 208 F.3d 461, 464–65 (4th 

Cir. 2000) (holding that identities of suspects and witnesses were properly withheld under 

Exemption 7(C)); Computer Pros. for Soc. Resp. v. U.S. Secret Serv., 72 F.3d 897, 904 (D.C. Cir. 

1996) (“Exemption 7(C) takes particular note of the strong interest of individuals, whether 

they be suspects, witnesses, or investigators, in not being associated unwarrantedly with 

alleged criminal activity.” (citation omitted)); Halloran v. Veterans Admin., 874 F.2d 315, 320 

(5th Cir. 1989) (observing, in discussing basis for Exemption 7(C), that “[t]here can be no 

clearer example of an unwarranted invasion of privacy than to release to the public that 

another individual was the subject of a criminal investigation”); see also Behar v. U.S. Dep’t 

of Homeland Sec., 39 F.4th 81, 94 (2d Cir. 2022) (same regarding assuring witnesses 

confidentiality under Exemption 7(C)).
36

CONCLUSION

For the reasons stated, we conclude that plaintiff American 

Oversight's FOIA request fails because the documents sought are 

shielded by FOIA Exemption 5. 

Defendants have carried their burden to show that memoranda 

and notes created by prosecutors and agents in memorializing 

interviews they conducted during a criminal investigation are 

attorney work product shielded from ordinary civil discovery by Fed. 

R. Civ. P. 26 and, therefore, from production under FOIA Exemption 

5. 

American Oversight has failed to show that defendants waived 

this protection by disclosing to investigation “targets” and “subjects” 

during their interviews the contents of these yet-to-be-created 

documents. 

Accordingly, the district court’s award of summary judgment 

to defendants is AFFIRMED.