# In the United States Court of Federal Claims

No. 08-700C

(Filed: June 19, 2015)

) JAY ANTHONY DOBYNS, ) ) Plaintiff, )

v. ) ) )

TH E UNITED STATES, ) )

D efendant. ) )

OPINI ON AND ORDER

After the court issued its final opinion in this case, an ATF ag ent, Trainor, left a voicemail message fo r the judge and said that he had been threatened by another witness, Higman, also an ATF agent, and that one of the Departme nt of Justice (DOJ) lawyers

who had tried the case before the court had furt her threatened Trainor with damage to his career if he disclosed the Higman threat to the court. Afte r that voicemail message, the

court referred the matter to the Office of Professional Responsibility (OPR) within the DOJ. See 28 C.F.R. § 0.39a (2015) (OPR is to “investigate and refer for appropriate action allegations of misconduct involving De partment attorneys th at relate to the exercise of their authority .”), and voided the judgment, ECF No. 300. OPR began an investigation but later suspende d it when the special master was appointed to investigate whether there had been a fraud upon the court. See Orders, ECF Nos. 329, 334, & 335.

The specia l master has ordered the government to produce certain documents related to the two threats. See Order, EC F No. 353. The gove rnment commendably has waived any privilege claim as to a majority of the relevant documents but contends that 90 documents in the custody and control of OP R and the Office of the Inspector General (OIG) are privileged from production. The g overnment is claiming that the documents are protected by the deliberative process, law enforcement, atto rney-client, and work2 product privileges, although it does not conte nd that all the documents are protected by all these privileges.

At their request, the parties have briefed the privilege issues. Plaintiff filed his initial brief on May 20, 2015, ECF No. 382. Defendant res ponded on June 2, 2015, ECF No. 396 (Def.’s Resp.), and plai ntiff filed his reply on June 9, 2015, ECF No. 401. On June 12, 2015, defendant completed its final production of documents. 1

I. The Privileges Claimed

In support of its deliberative process and law enforcement privilege claims, the government has submitted the affidavits of Robin C. Ashton, Esq., Counsel for the DOJ

OPR and the affidavit of Michael E. Horow itz, Inspector General for the DOJ. In Ms. Ashton’s declarations, she states:

I have reviewed each of the OPR documents discussed below and have determined that the deliberative proc ess privilege should be invoked to protect privileged information from disclo sure. I do so to prevent the release of predecisional, deliberative informa tion, the disclosure of which might harm OPR’s deliberative process by prematurely revealing OPR’s

recommendations and details about the investigative process. Disclosure of predecisional discussions might harm OPR’s deliberative process by chilling the free flow of advice, opinion s, and recommendations among OPR attorneys and supervisors. Release of this information could also cause public confusion by prematurely disclosi ng proposed actions or findings that might not ultimately be ta ken, and disclosing reas ons and rationales that might not ultimately be adopted as th e bases for OPR’s final conclusions.

First Ashton Declaration at 2; Second Asht on Declaration at 2 (language identical).

She further states:

I have reviewed each of the OPR documents listed below and have also

determined that the law en forcement (investigative files) privilege should be invoked to protect privileged inform ation from disclosure. I do so to safeguard the privacy of individuals i nvolved in the inquiry, and otherwise to prevent possible interfe rence with the inquiry th at might result from the

disclosure of confidential information. OPR’s investigative process cannot be effective if those who provide OPR w ith documentary evidence or oral or

written statements are concerned that the information they provide will be

1 The issue of the production of documents related to the Rule 60 litigation team is discussed in Part V.C.,

infra.3 made public. Disclosing information co ntained in OPR’s investigative files might inhibit OPR’s ability to fulf ill its mission of conducting thorough investigations and reaching correct dete rminations as to the merits of the misconduct allegations it is investig ating. Moreover, the premature

disclosure of information about an ongoing OPR inquiry could harm an individual’s reputation unfairly and needlessly.

Id.

Mr. Horowitz states:

I have reviewed the OIG documents lis ted below and have determined that the deliberative process privilege and/or the attorney-client privilege should be invoked to protect privileged info rmation from disclosure. I do so to prevent the release of predecisional, de liberative informati on, the disclosure of which might harm the OIG’s deliber ative process by chilling the free flow of advice, opinions, and recommendatio ns among OIG staff and its attorneys and supervisors.

Horowitz Declaration at 2.

Defendant also claims the attorney-client and work product privileges as to some documents, arguing that “[c]ommunications between a Federal agency and agency counsel, as well as communications between a Federal agency a nd attorneys from the [DOJ] representing the agency in litigation, are included within the ambit of the privilege.” Def.’s Resp. at 20 (citing Eden Isle Marina, Inc. v. United States, 89 Fed. Cl. 480, 495 (2009)). Defendant asserts that “communications between counsel for the United States and employees of a Government agency ar e within the scope of the privilege.” Id. Defendant further argues that the attorney work pr oduct immunity applies to some documents that were prepared in anticipation of litigation. Id.

II. The Documents

I have reviewed in camera the documen ts claimed to be privileged which have been provided to me sometimes in redacted form. Defe ndant represents that all redacted material is either nonrespons ive or contains personally iden tifiable information, and I will accept that representation. A party is not oblige d to produce material that is not relevant to a claim or defense, Rule 26(b)(1) of th e Rules of United States Court of Federal Claims (RCFC), and under RCFC 26(g)(1)(A ), a discovery response is in itself a certification that it is “complete and corr ect as of the time it is made,” RCFC 26(g)(1)(A). I will therefore deem and credit the representation that the government has only redacted information that is not releva nt to the remaining claim—the failure to4 advise the court of the alleged threat to Trainor and the alleged threat to Trainor’s career—and irrelevant personally identifiable information. 2

The documents fall into seve ral categories: (i) docum ents submitted to or from lawyers whose behavior was being investigat ed; (ii) documents created by the OIG and the OPR who investigated the threats; ( iii) documents from other persons who were familiar with or had investigated Trainor’s a llegations that he had been threatened; (iv) emails by lawyers in OPR and OIG to each other or to superiors; and (v) drafts created by the OPR or OIG lawyers of documents they were intending to send to persons outside of OPR or OIG, including the court.

Having reviewed the documents a nd Ms. Ashton’s and Mr. Horowitz’s declarations, I conclude that:

 The documents are not subject to the delib erative process privilege. They are not documents produced during the consider ation and adoption of a policy by an agency of the United States. Instead, they were prod uced or created during the investigation of a particular matter— the alleged improper behavior of DOJ lawyers. The deliberative process privile ge does not apply to such documents.

 Assuming arguendo this privilege does exist, it protects only the recommendations, drafts, proposals and suggestions being made or created incident to the promulgati on of a policy. The privile ge does not pertain to the

facts memorialized or contained in an otherwise privileged document, unless those facts are inextricably inte rtwined with the recommendati on being made. That is

not the situation here. The facts in the documents, particularly the explanations provided by the DOJ attorn eys for why they did not tell the court of the alleged threat, must be disclosed.

 Again assuming, arguendo, the privilege exis ts, it yields if the information sought to be protected is needed in the litigation or may shed lig ht on a colorable claim of governmental misconduct. Us ing the factors identified in the case law, I conclude that plaintiff has made a su fficient showing: (1) of need and (2) of potential misconduct. On balance, this combin ed showing of need and potential governmental misconduct outweighs the fa ctors that would militate in favor of upholding the pr ivilege claim.

 The law enforcement privilege does a pply to the documents to which the government claims that privilege. In ce rtain instances, however, the weighing of

the factors identified in the case la w compels the conclusion that the law enforcement privilege should yield to the plaintiff’s ne ed for the document. In other instances, the converse is true. Th e document is either so innocuous or speaks of information now made public that plaintiff cannot show any need for it.

2 If I am incorrect in that supposition, the gove rnment should correct me immediately.5 In that situation, the interests adva nced by the law enfo rcement privilege overwhelm the interest, if any, in disclosure of the information.

 The claim of attorney-client privilege must be rejected because there is no showing that the OPR or OIG documents reveal a communication from a client to an attorney made in conf idence to secure legal advice or legal services.

 The work product privilege does not appl y to the documents created by the OPR attorneys who neither prepar ed them for trial nor in anticipation of litigation.

III. The Deliberative Process Privilege

A deliberative process privilege “protects agency officials’ de liberations, advisory opinions and recommendations in order to promote frank disc ussion of legal or policy matters in the decision-making process.” Ze nith Radio Corp. v. United States, 764 F.2d 1577, 1580 (Fed. Cir. 1985) (citing Kaiser Al uminum & Chem. Corp. v. United States, 157 F.Supp. 939, 946 (Ct. Cl. 1958)). 3

The Supreme Court has stated of the deliberative process privilege:

The cases uniformly rest the privilege on the policy of protecting the decision making processes of government ag encies, and focus on documents reflecting advisory opinions, recomme ndations and deliberations comprising part of a process by which gover nmental decisions and policies are formulated. The point, plainly made in the Senate Report, is that the frank discussion of legal or policy matters in writing might be inhibited if the discussion were made public; and that the decisions and policies formulated would be the poorer as a result. As a lower court has pointed out, there are enough incentives as it is for playing it safe and listing with the wind and as we have said in an analogous context, human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances . . . to the detriment of the decisionmaking

process.

N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 150 (2001) (internal citations and quotation marks omitted).

3 In Zenith, the Federal Circuit described the privilege as “executive privilege,” and cited to the Court of Claims’ description of the privilege in Kaiser. See Zenith Radio Corp., 764 F.2d at 1580 (citing Kaiser, 157 F.Supp. at 946). In doing so, the Federal Circuit reaffirmed the Court of Claims’ recognition of the deliberative process privilege. See Abramson v. Unit ed States, 39 Fed. Cl. 290, 294 (1997) (noting that the Court of Federal Claims recognizes both privileges and discussing “[t]he view . . . consistent with binding precedent . . . that any assertion of the delibera tive process privilege must be made in the context of an executive privilege”). See also First Heights Bank v. United States, 46 Fed. Cl. 312, 322 (2000).6 To qualify, the documents therefore “must be (1) predecisional, that is, ‘antecedent to the adoption of agency policy,’ and (2) delib erative, that is, actu ally ‘related to the process by which policies are fo rmulated.’” Texaco Puerto Rico, Inc. v. Dep’t of Consumer Affairs, 60 F.3d 867, 884 (1st Cir. 1995) (quoting Nat’l Wildlife Fed’n v. United States Forest Serv., 861 F.2d 1114, 1117 (9th Cir. 1988 )); Tigue v. United States Dep’t of Justice, 312 F.3d 70, 76–77 (2d Cir. 2002) (delibera tive process privilege covers “documents reflecting advisory opinions, recommendations and delib erations comprising part of a process by which governmental deci sions and policies are formulated” (quoting Dep’t of the Interior v. Klamath Water User s Protective Ass’n, 532 U.S. 1, 8 (2001)).

To be pre-decisional, the document must have been prepared to assist an agency decision-maker in arriving at his decision. Grand Cent. P’ship, Inc.v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999). Indeed, the court should be able “‘to pinpoint an agency decision or policy to which the document cont ributed.’” Senate of the Com. of Puerto Rico on Behalf of Judiciary Comm. v. United States Dep’t of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (quoting Paisle y v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1981)). The privilege therefore “covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” Coastal States Gas Co rp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). Th e D. C. Circuit has stated:

In deciding whether a document should be protected by the privilege we look to whether the document is “predecisi onal” whether it was generated before the adoption of an agency policy and wh ether the document is “deliberative” whether it reflects the give-and-tak e of the consultative process. The exemption thus covers recommenda tions, draft documents, proposals, suggestions, and other subjective doc uments which reflect the personal opinions of the writer rather than the policy of the agency. Documents which are protected by the privilege are thos e which would inaccurately reflect or prematurely disclose the views of th e agency, suggesting as agency position that which is as yet only a personal positio n. To test whether disclosure of a document is likely to adversely affect the purposes of the privilege, courts

ask themselves whether the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank

communication with in the agency.

Id. at 866.

As to the requirement that the documents be “deliberative,” they must be related to the process by which policies are formulated. Grand Cent. P’sh ip, Inc., 166 F.3d at 482. There must therefore have been a process of decision-making in which the information at issue played a role. Id. It is insufficient that the in formation was conveyed during a deliberative process. Instead, the statement or document must have been a direct part of7 the deliberative process in th at it makes recommendations or expresses opinions on legal or policy matters. Id.; accord Ethyl Corp. v. EPA, 25 F. 3d 1241, 1248 (4th Cir. 1994); Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Ci r. 1975) (“[P]re-decisional materials are not exempt merely because they are pre-decisiona l; they must also be a part of the agency give-and-take of the deliberative process by which the decision itself is made.”).

Documents are not deliberative when th ey are a compilation of facts discovered during an investigation. To the contrary, when “purely factual material appear[s] in . . .

documents in a form that is severable without compromising the private remainder of the documents,” the factual informat ion itself must be produced. EPA v. Mink, 410 U.S. 73, 91 (1973) (superseded by statute on other grounds ). In Playboy Enterprises, Inc. v. Dep’t of Justice, 677 F.2d 931, 933 (D.C. Cir. 1982), two Senato rs asked for a report on the handling of an FBI informant. Playboy submitted a FOIA re quest for the report, and the DOJ tried to shield the entire report from disc losure pursuant to th e deliberative process exemption. Id. at 934. The District Court held that the report wa s not exempt once the DOJ had excised conclusions, recommendations, op inions or advice of the authors. Id. That decision was affirmed, and the Circuit, relying on the Mink case, held that the deliberative process privilege does not exempt from disclosure the factual portions of the report. Id. at 936–37. It is also true, of co urse, that “even purely factual information may be protected if ‘the manner of selecting or presenting those facts would reveal the deliberative process, or if the facts are in extricably intertwined with the policy making process.’” 2 David M. Green wald, Robert R. Stauffer, & Er in R. Schrantz, Testimonial Privileges, § 9.9 (2014 Ed.) (quoting Ryan v. Dep’t of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980)).

A. The Deliberative Process Privilege Do es Not Apply to the OPR or OIG Investigations

It is clear that neither the OPR nor th e OIG were adopting a policy. Ms. Ashton and her colleagues in that office were not, fo r example, in the process of creating a policy pertaining to under what circumstances DOJ la wyers were or were not to report events to a court. They were conducting an investiga tion, upon referral by the judge in this case, into why the lawyers who may have been awar e of the Higman threat did not report it to the court. They were also collecting documents created contemporaneously with the alleged threats. While there are drafts and e-mails by lawyers in the OPR which are necessarily antecedent to the reaching of a final conc lusion, they are certainly not recommendations or analyses which speak to the adoption or rejection of a policy. Furthermore, the facts collected during the OPR investigation cannot possibly be said to

reveal in themselves a delibera tive process or to be so “inextricably intertwined” in the process that the disclosure of the facts would disclose the process. That is impossible; there was no process occurring that looked towa rds the adoption or rejection of a policy

now in existence.8 The special master, when a magistrate j udge, confronted an analogous situation in Waters v. United States Capitol Police Bd., 21 6 F.R.D. 153 (D.D.C. 20 03). In that case

the Internal Affairs Division of the United States Capitol Police interviewed witnesses and then produced a report as to whether an officer was subject to racial discrimination when the officer was accused of cheating on an exam. Id. at 155–56, 161. In fact, there were two investigations of the cheating ep isode—one directed to whether the officer

cheated and a second to whethe r the officer was subject to ra cial discrimination when the first investigation concluded that he had ch eated. Id. The officer, who had by now brought suit against the Capitol Police, de manded the production of the report generated by the investigation into the officer’s cheating. Id. at 161. The Capitol Police, however, withheld, on grounds of deliberative process, a memorandum said to “consist[] entirely of

evaluative comments about an earlier report of investigation prepared by Sergeant Richard Burton pertaining to allegations that Mr. Waters [, the officer,] cheated on an

exam.” Id. at 161–62 (quoting Declaration of Lieutenant Thomas Smith). I rejected the deliberative process claim, however. Id. at 162. I quoted the cases discussed above and explained that the privilege pertains only to documents “reflecting advisory opinions, recommendations, and deliberations which contribute to the process by which governmental decisions and policies are form ulated.” Id. at 162 (quoting Taxation With Representation Fund v. Internal Revenue Se rvice, 646 F.2d 666, 6 77 (D.C. Cir. 1981)). I then concluded, as to certain notes, as to which the Capitol Police also claimed privilege, that the privilege was inapplicable:

As is self-evident, the application of th is privilege to the investigators’ notes, as described by Lieutenant Smith (“Smith” ), is a poor fit. Smith never claims that the notes taken during the intervie ws, interview questions, or annotations on documents constitute “opinions, reco mmendations and deliberations” that

must be shielded lest inferiors in a government agency be inhibited in the advice they give their superiors or the p ublic will be misled as to the reasons for the ultimate adoption of a particular policy. Indeed, he never claims that they were created by pers ons who had the responsibility of recommending that a particular policy be adopted by the agency that employed them.

Id. at 162 (citation omitted).

I then turned to the four page memorandum described above and stated:

While the application of the delib erative process privilege to the

memorandum from Ziemba to Howe comes closer to the mark because it is at least directed by an inferior to a superior, it still misses. Smith never indicates that Howe was considering any policy and sought Ziemba’s views as to the wisdom of its adoption or th at Ziemba, without Howe’s direction, was proposing a policy for Howe to adopt . Instead, Ziemba was speaking to a particular case and the deliberative pr ocess privilege to this point in its9 history speaks to the adoption of a po licy that pertains to all cases of a particular type.

Id. at 162–63.

As in the Waters case, the investigation conducted here relates to the collection of facts pertaining to a singular occurrence. The analysis of those facts by OPR or OIG cannot possibly lead to the adoption or rejec tion of a policy. The deliberative process privilege, therefore, does not apply.

In an earlier case, I reached a contrary conclusion. While Emerson might defend me, I must admit that my decision was wrong. 4

In McPeek v. Ashcroft, 202 F.R.D. 332 (D.D.C. 2001) the OPR, at the behest of the Attorney General, inves tigated complaints of sexual harassment and claimed the deliberative process privilege as to documen ts that set forth recommendations to the Attorney General as to what to do about those complain ts. I upheld the privilege, rejecting plaintiff’s contention that the de liberative process priv ilege applies only to documents pertaining to the creation of policy. Id. at 334–35. As the case law discussed above indicates, the distincti on between policy and action is fundamental; the privilege applies only to the creation of a policy and not to every agency action. I was incorrect to equate the two.

Indeed, another magistrate judge reached the same conclusion that I reached in Waters. In Velez v. City of New York, No . CV 2004-1775, 2010 WL 2265443 (June 2, 2010), there was an investigati on into two police officers’ inte ractions with a confidential informant, and the City of New York claimed the delibera tive process privilege as to documents that it insisted “contain pre-deci sional analysis and recommendations made by a supervisor to the Internal Affairs investig ator assigned to the case.” Id. at *3. The court, however, ruled that the documents di d not qualify for the pr ivilege because they were not related to a process that would culmin ate in the adoption or rejection of a policy.

Id. The court stated:

A document is deliberative when it is actually . . . related to the process by which policies are formulated. A doc ument is predecisional when it is prepared in order to assist an agen cy decisionmaker in arriving at his

decision. The document must have been created to assist the agency in the formulation of a specific decision on polic y rather than part of a routine and ongoing process of agency self-eva luation. By contrast, measuring

4 “ A foolish consistency is the hob goblin of little minds.” Ralph Wa ldo Emerson, Self Reliance.10 compliance with existing procedures is not predecisional, and thus is not privileged. These documents do not c ontain discussions underlying policy oriented judgments that the delibera tive process privilege is designed to protect. The final decision the City re fers to is whether disciplinary action was warranted against the defendant offi cers based on their failure to follow the applicable procedures. These r ecommendations concerning disciplinary

review of a discrete incident do not involve the policy form ulations protected under the deliberative process privilege.

Id. at *3–4 (internal citations and quotation marks omitted). 5

Accordingly, the deliberative process privile ge claim must be rejected. This is not to suggest that OPR or OIG investigations sh ould be conducted on th e five o’clock news, particularly when such inves tigations can be generated by nothing more th an a complaint and involve the hard-earned reputations of lawy ers in the DOJ. It is only to say that the application of the deliberative process privilege here would be a Procrustean fit and, as will be shown, the law enforcement priv ilege, a much better fit, does apply.

Nevertheless, assuming I am wrong, and the deliberative process does apply, it will now be shown that that pr ivilege yields to plaintiff’s need and to the claim of

misconduct that caused the court to refer the matter to OPR.

B. Assuming it Applies, the Deliberative Pr ocess Privilege Yields to Plaintiff’s Showing of Need

The deliberative process is a qualifie d privilege and can be overcome by a sufficient showing of need outweighing the ha rm that might result from disclosure. The

Ninth Circuit has summarized the factors to be considered in this balancing test as

follows:

The deliberative process privilege is a qualified one. A litigant may obtain

deliberative materials if his or her n eed for the material s and the need for accurate fact-finding override the governme nt’s interest in non-disclosure. Among the factors to be considered in ma king this determination are: 1) the relevance of the evidence; 2) the availability of other evidence; 3) the government’s role in the litigation; an d 4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.

5 Defendant cites several cases in which courts ruled that the deliberative process privilege did apply to documents generated during OPR inv estigations, namely Covertino v. United States, 674 F.Supp.2d 97 (D.D.C. 2009); Heller v. Marshalls Service, 655 F.Supp. 1088 (D.D.C. 1987); and Lewis v. United States, 867 F.Supp.2d 1 (D.D.C. 2011). However, those deci sions contain no analysis or acknowledgement of the requirement that the process must actually be in pu rsuit of policy creation, a nd thus are not persuasive.11 FTC v. Warner Commc’ns, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984) (internal citations and quotation marks omitted). 6

Applying those well-recognized fact ors compels the conclusion that the deliberative process must yield.

First, the documents are unquestionably rele vant to the government and its roles in this litigation (Factors 1 and 3). They speak, after all, to th e precise question presented: when did the DOJ lawyers learn of the allege d threat, why did they not inform the court that there was such an allegation, a nd did they threaten Trainor’s career?

As to the OPR and OIG investigations, there is no substitute for the documents that were created during the course of those in quires. Therefore, under that factor (Factor 2) and the documents’ obviou s relevance, plaintiff’s s howing is a compelling one.

Additionally, while it is not denominated as one of the factors in the case quoted above, it surely is of signifi cance that this is serious litiga tion involving a specific claim of witness intimidation by lawyer s for the United States that lead a judge to require an investigation by a special master.

As to the final factor (Factor 4), there is a remote possibility that disclosing what OPR learned in the investigation might ma ke DOJ lawyers less candid when OPR demands an explanation from them for their beha vior in a given case. But, it is fanciful to think that DOJ lawyers will be timid or less than candid in answering OPR demands for information when the lawyer s know that their careers may be on the line if they refuse to do so, even if there is even tual public disclosure of what they have told OPR. See also 28 C.F.R. § 45.13 (2015) (requiring DOJ employees to cooperate fully with investigations by the OPR).

Furthermore, the OPR inquiry was a re sponse to a judge demanding to know why DOJ lawyers had done what they did. DOJ’s lawyers surely had to know that whatever they told the OPR woul d eventually be made known to th e court when they or OPR told the court. It is inconceivable that they t hought that by answering the OPR inquiries they

6 Accord In re Sealed Case, 121 F.3d 729, 737–38 (D.C. Cir. 1997) (“The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. This need determination is to be made flexibly on a case-by-case, ad hoc basis. ‘[E]ach time [the deliberative process privilege] is asserted the district court must undertake a fresh balancing of the competing interests,’ taking into

account factors such as ‘the relevance of the evid ence,’ ‘the availability of other evidence,’ ‘the seriousness of the litigation,’ ‘the role of the govern ment,’ and the ‘possibility of future timidity by government employees.’” (quoting In re Subpoena Served Upon the Comptroller of the Currency, 967 F.2d 630, 634 (D.C. Cir. 1992))).12 were producing information that would be held forever in confidence by OPR when a federal judge had referred the matter to OPR in the first place. They could not have been

that naïve.

Finally, it is an honor for any lawyer to represent the United States, but the job necessarily comes with the c oncomitant responsibility to expl ain one’s conduct to OPR or a presiding judge, or both. To say th at DOJ lawyers will be less than frank and forthcoming when they answ er OPR’s questions, occasioned by a judge’s demand that OPR investigate what those lawyers did, becau se they fear public disclosure of their explanations, is to de mean their integrity.

Accordingly, I find that the balancing of these factors requires the conclusion that the need for the information outweighs by a substantial margin the need for further secrecy and, if the deliberative process exists, it must yield.

C. Misconduct

The deliberative process privilege also yiel ds when there is reason to believe that the documents claimed to be privileged may shed light on the government’s misconduct. Texaco Puerto Rico, Inc., 60 F.3d at 885; In re Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 1997) (“[W]here there is reason to believe the documents sought may shed light on government misconduct, ‘the privilege is rou tinely denied,’ on the gr ounds that shielding internal government deliberations in this cont ext does not serve ‘the public’s interest in honest, effective government.’” (quoting Texaco Puerto Rico , Inc., 60 F.3d at 885)). Moreover, if such misc onduct is present, there is no ot her factor to be weighed against disclosure; disclosure is ordered. In re Se aled Case, 121 F.3d at 746 (“[T]he privilege disappears altogether when there is any reason to believe government misconduct occurred.”); Alexander v. F.B.I., 1 86 F.R.D. 170, 177 (D.D.C. 1999).

In 2013, then District Court and now Circuit Judge Wilkins concluded that the misconduct “must be severe enough to qua lify as nefarious or extreme government wrongdoing.” Neighborhood Assistance Corp . v. U.S. Dep’t of Housing and Urban Development, 19 F. Supp. 3d 1, 14 (D.D.C. 2013). The cour t cited as examples the kind of misbehavior that would invoke the excep tion—acts that no government should engage in, such as misuse of a personnel file to disc redit a witness in an on going investigation of a Presidential administration; using the Intern al Revenue Service to “get” a President’s enemies; and withholding documents that woul d tend to show religious discrimination. Id. at 14 (citing Alexander, 186 F.R.D. at 164; Tax Reform Research Grp. v. IRS, 41913 F.Supp. 415, 426 (D.D.C. 1976); Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250, 256–58 (D.D.C. 2003)). 7

In this case, the court found that a w itness who had given detailed testimony about the failures of the ATF to prot ect a former agent, thereby ha rming the government’s case, may have been threatened with damage to his career if he told that he had been

threatened. While the truth of that assertion is yet to be tested, if true, it may constitute the crime of obstruction of justice. Moreov er, it was the judge himself who initiated the investigation of these events to see if th ey warranted setting aside a final judgment. Surely that allegation, which the judge dete rmined to be serious enough to warrant extraordinary action, can be said to be alleged “nefarious” misconduct if that is in fact the

standard.

The deliberative process privilege doe s not apply to any of the documents

reviewed.

IV. The Law Enforcement Privilege

The law enforcement privilege may protect documents created during an investigation by law enforcement such as th e DOJ. In McPeek, 2 02 F.R.D 332, I ruled that the law enforcement priv ilege applies to “an investig ation conducted by OPR into allegations of misconduct which OPR has juri sdiction to investigate.” Id. at 335–36 (citing Tuite v. Henry, 181 F. R.D. 175, 176 (D.D.C. 1998), aff’d, 203 F.3d 53 (D.C. Cir. 1999). I persist in that view and again conc lude that documents produced or considered during an OPR investigation are protec ted by the law enforcement privilege.

But, once again, the privilege is a qualif ied one and must yield when the factors identified in cases such as Tuite v. Henry, 98 F.3d 1411, 1417 (D.C. Cir. 1996) are applied to balance the public interest in non disclosure against the requesting party’s need

for the information. Those factors are:

(1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and

consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to fo llow from the incident in

7 In Waters, the special master, then a magistrate judge, found it inconceivable that the deliberative process privilege should shield from discovery docum ents bearing on whether an agency engaged in discrimination. Waters, 216 F.R.D. at 163.14 question; (6) whether the police inve stigation has been completed; (7) whether any interdepartmental disciplin ary proceedings have arisen or may arise from the investigation; (8) whet her the plaintiff's suit is non-frivolous and brought in good faith; (9) whether the informa tion sought is available through other discovery or from other sources; (10) the importance of the information sought to the plaintiff's case.

Tuite v. Henry, 98 F.3d at 1417 (citing In re Sealed Case, 856 F.2d 268, 272 (D.D.C. 1988)).

First, regarding the last two factor s (Factors 9 and 10), the information is important to plaintiff, a nd obviously is not availa ble from any other source. 8

Second, regarding frivolousness (Factor 8), plaintiff’s lawsuit has been successful

to date.

Third, I see no potential harm from the “dis closure” of the names of the persons who have given information to OPR (Factor 2 ). These persons are agents and employees of DOJ or the ATF or lawyers wh o have participated in the trial of this matter before the court. Their identities are hardly a secret. A nd, as I have already explained, I see no risk that in the future, DOJ lawyer s will be reluctant to coopera te with the OPR if the OPR investigative materials are di sclosed (Factors 1 and 3).

Fourth, the information sought is factual, not evaluative (Factor 4). Plaintiff wants

to know what the DOJ has learned about the a lleged threat and how they responded to it.

Fifth, while the OPR investig ation may continue once th e special master makes his findings, and the court rules, whether the attorneys acted consis tently with their professional responsibilities is for OPR and not for me to de cide (Factors 6 and 7). Assuming I ultimately make findings about what they knew and when th ey knew it, I will be speaking only as to whether what I found justifies setting aside the judgment. I have neither interest in nor authority to recomme nd their being disciplined. Moreover, I know of no reason why my findings wo uld have to be gi ven any dispositive e ffect, particularly when I have no intention of speaking to the issue of their discipline.

Thus, a balancing of the appropriate fa ctors compels the c onclusion that, in general, the law enforcement privilege, while a pplicable, may yield to plaintiff’s need for the document. On the other hand, there are certain obvious instances where the

information in the document is innocuous and insignificant because, for example, it is now public information. In those instance s, plaintiff cannot show any need for the

8 Plaintiff is not a defendant in a criminal case, and the special master is unaware of any risk of his turning out to be a defendant following from this matter (Factor 5).15 document, let alone a substantial one. I note here that some of the documents contain the OPR lawyers’ ratiocination as to how to re spond to Judge Allegra, which is utterly irrelevant to the question presented—the alleged threats to Trainor. Given their irrelevance, their disclosure would be a gratu itous invasion of the lawyers’ thinking for no good reason. Therefore, I will exerci se my discretion and allow defendant to withhold, under claim of la w enforcement privilege, the OPR documents dealing with how to respond to Judge Allegra.

At the conclusion of this opinion, I will identify each do cument as to which the law enforcement privilege applies.

V. The Attorney-Client Privilege an d the Work Product Doctrine

I have already resolved the claims of the applicability of th e deliberative process and law enforcement privileges, so I now turn to the remaining clai ms of the attorneyclient and work product privileges.

The attorney-client privilege protects from disclosure communications made in confidence by a client for the purpose of s ecuring legal advice or legal services. See Banks v. Office of the Senate Sergeant-at-Ar ms, 222 F.R.D. 1, 3 (D.D .C. 2004); see also Upjohn Co. v. United States, 449 U.S. 383, 3 89 (1981). Rule 26 (b )(3)(A), building on the seminal Supreme Court decision in Hickman v. Taylor, 329 U.S. 495 (1947), protects from disclosure “documents and tangible thi ngs that are prepared in anticipation of litigation or for trial” by a party or its attorney. RCFC 26(b)(3)(A).

This case is, of course, still in active litigation. There have been two distinct stages of litigation to date: (1) the hearings before the court; and (2) the post-judgment or Rule 60 proceedings. Additio nally, as explained earlier in this opinion, there was an investigation by the OPR into the behavior of the attorneys who represented the United States during the first phase of the litigation, denominated (1) above, the hearings before the court, and who lear ned of the threat to the witness Trainor but did not bring it to the Judge’s attention.

Understandably, the defendant makes it clear that it is not claiming that documents created during the OPR investiga tion are cloaked directly with the attorney-client or work product privileges. Instead, the privileges are claimed derivatively as to documents created by OPR but reflecting co mmunications that were uttere d or came into existence during the hearings before the court when Trai nor revealed to his superiors that he had been threatened. ATF relayed that information to the DOJ attorneys who were trying the case, and those attorneys decided not to advise the judge of the thre at. See Def.’s Resp.

at 21.16 A. The Attorney-Client Privilege

According to the defendant’ s log, there are 28 documents of the 90 total as to which defendant claims the attorney-client priv ilege. I have reviewed the documents, the log, and the declarations of Robin C. Ashton and Michael E. Horowitz. 9 While the log claims the privileges, it only occasionally expl ains why these two privileges apply to the documents. Nevertheless, it appears from defe ndant’s descriptions in the log (when they do appear) that it seems to c onsider the communications abou t the Higman threat to be protected by the attorney-client privilege. Indeed, there can only be two kinds of

communications after Trainor discloses the thre at that can be considered communications

from a client: communications from Trainor a nd from the attorneys fo r the ATF about the

threat.

In general, the courts recognize that atto rneys for a government entity may have an attorney-client relationship with the entities they represent. E.g., Eden Isle Marina, Inc., 89 Fed. Cl. 480. In this case, the DOJ represented the ATF. But, that principle is of little help in this case when, in analyzing communications by Trai nor, one tries to identify who the client was, who the DOJ attorneys invo lved represented, and whether any of the communications by Trainor were confidential.

The documents already produc ed to plaintiff and provid ed to the special master indicate that Trainor spoke to his superiors about the Higman threat, demanding that they investigate it, and to an ATF lawyer about whether Trainor had any obligation to report the threat to the court. Trainor also spok e to DOJ attorneys abou t whether to report the

threat to the court. The documents indi cate that Trainor did not communicate in confidence to any attorney, whether employed by ATF or DOJ, that he had been threatened. To the contrary, he spoke openly of the threat to his superiors and demanded that they investigate. His communicati on to the ATF lawyer, who understandably

communicated what she had been told to the DOJ attorneys, does not seem to have been in confidence. Indeed, the ATF lawyer would not have shared the me ssage if she thought

that Trainor had confided in he r with the expectation that she keep the matter a secret. To the contrary, Trainor wanted action—investig ate his complaint of being threatened, and

advice—whether to tell the court. While he so ught legal advice, he certainly did not seek it on the basis of a communication only with hi s lawyer that he expected would never be disclosed. Why would the law protect such a communication when the putative client, Trainor, never considered it conf idential and to be kept secret by an ATF or DOJ lawyer? In fact, Trainor wanted the Higman threat di sclosed, and he ultimat ely did disclose it to the court. Thus, the information defendant seeks to claim as privileged—that Trainor

9 Ms. Ashton speaks only to why the documents are privileged under the deliberative process and law enforcement privileges, presumably because only these privileges require the assertion of the privilege to be made by the head of an agency.17 wanted the threat investigated and to know whether he sh ould tell the court about it—is already known to plaintiff.

Furthermore, it is inconceivable that any DOJ lawyer ever considered Trainor his or her client when they learned of the threat . Indeed, they had treated Trainor as a hostile witness at the hearing before the court. Ha d anyone told the DOJ la wyers that they were Trainor’s lawyers on the day they learned that he claimed to have been threatened by Higman, they would have been flabbergasted. An examination of the documents created

after Trainor claimed to have been threatened shows that the relationship between Trainor and the DOJ lawyers was frequently antagonistic and adversarial.

With these general concerns in mind re garding the applicability of the attorneyclient privilege, I have reviewed all of the documents as to which the government claims an attorney-client privilege. I have conclude d that in each instance the unspoken premise

of the claim is that the client was Trainor and that his statements, if uttered to an attorney, were privileged. As just explained, I reject that premise and overrule these claims of the attorney-client privilege.

There are also OIG documents for whic h defendant claims attorney-client privilege, but defendant provides no explanati on in the log as to who is the attorney and

who is the client in those communications. Th ose claims of attorney-client privilege are also rejected.

B. The Work Product Doctrine

Defendant claims the work product pr otection as to 24 documents of the 90 documents over which defendant asserts privile ges. The work product doctrine is also inapplicable to the documents I have revi ewed. I have described the work product privilege as follows:

Rule 26(b)(3) of the Federal Rules of Civil Procedure provides that materials prepared in anticipation of litigation or for trial by an attorney or a party are protected from disclosure and they may be subject to discovery only upon a showing of substantial need and th e inability to obtain the substantial equivalent without undue hardship. The court must take particular care to protect the mental impressions, conclusion s, opinions, or legal theories of an attorney. Attorney ment al impressions, conclusions, opinions, and legal theories may be reflected in in terviews, statements, memoranda, correspondence and in countless other tangible and intangible ways. These materials, known as opinion work pr oduct, are entitled to special protection and require a stronger showing of necessity to justify release . . . although the precise contours of this showi ng have not been resolved.18 Miller v. Holzmann, 238 F.R.D. 30, 32 (D .D.C. 2006) (internal quotation marks and citations omitted).

It follows then that there are in eff ect two forms of work product. Any material prepared by an attorney in anticipation of litigation qualifies as work product but the protection may yield to a showing of a substantial need and an inability to secu re the equivalent without un due hardship. But, if the

material constitutes or contains ment al impressions, conclusions, opinions, or legal theories of an attorney, a much greater showing is necessary.

Miller v. Holzmann, No. 95-01231, 2006 WL 3500877, at *1 (D.D.C. Dec. 5, 2006) (citing Upjohn Co., 449 U.S at 400–01).

In the traditional case, documents create d by counsel for the pa rties in which the lawyers discussed, for example, how to cro ss examine a witness or how to respond to a judge would be classic work product—docume nts prepared for trial and disclosing the “mental impressions, conclusions, opinions or legal theories” of counsel. See Rule 26 (3)(B). Yet, applying the prohibition to the documents created by OPR is again a poor

fit.

The seminal case of Hickman v. Taylo r, 329 U.S. 495, dealt with one lawyer attempting to secure from o pposing counsel notes counsel had taken during a witness interview. The Supreme Court considered th at effort intolerable because the societal interest in an effective advocacy system would be seriously re tarded if a lawyer could not prepare her case in peace, with out the intrusion of opposing counsel into her thoughts, opinions, and conclusions. Id. at 510–11.

That is not the situation here. The OPR lawyers were not representing the United States in the same sense as the lawyers who have and are now representing the United

States in this case. As I will make clear in rejecting plainti ff’s efforts to se cure the work product of the attorneys who pr esently represent the United St ates, see Part V.C. infra, I consider that work product inviolate. But, the OPR lawyers are not representing the United States in this litigation. Instead, they are performing a public function upon the referral by a judge. Intrusion into their me ntal processes does not threaten effective advocacy in the manner in wh ich the intrusion condemned in Hickman v. Taylor did. These lawyers, after all, were not representin g a party in any litigati on before this or any

other court.

Moreover, the deliberations and mental processes of the OPR lawyers are already more correctly protected by the law enforcement privilege . I am hard pressed to understand why, unlike any othe r lawyer or client, the OP R lawyers are entitled to the simultaneous protection of two privileges wh en the two privileges protect the same interest in preventing the public disclosu re of the ratiocination of lawyers who are19 performing different tasks—trying a case and conducting an investigation. I therefore conclude that the work pro duct privilege does not appl y to any document I have

reviewed.

C. The Rule 60 Litiga tion Team Documents

Plaintiff makes an unprecedented demand that the lawyers w ho now represent the United States, and who undertook that repr esentation when the court disqualified the other lawyers who had represented the United States, produce for him all their work. Their work is clearly protected by the work product doctrine , a protection afforded since

at least the decision in Hickma n v. Taylor, which is now inco rporated into Rule 26.

Moreover, defendant argues correctly that the documents generated by the Rule 60 litigation team are fundamentally different th an those subject to discovery when they were generated “solely for th e purpose of defending agains t a series of allegations separate from plaintiff’s claims against ATF.” Def.’s Resp. at 33. Those documents “are not first-hand evidence of underlying facts and have no direct conn ection to the conduct of the attorneys who participated in the underlying litigation.” Id . That is certainly true.

I appreciate that the discovery order requi res the parties to exchange all documents that “pertain, relate to, document, or explai n the behavior of DOJ or ATF employees with reference to the threat, whether before or af ter the threat was made” and further provides that “[t]his includes any inves tigation into that matter cond ucted by either DOJ or ATF at any time.” Order at 1, ECF No. 353. But, the order in context only referred to the documents created by those who heard of the th reat(s) when they were uttered or later investigated their being made when the court re ferred the matter to OPR. It is absurd to interpret the language to have divested th e lawyers who presently represent the United States of their work product pr otection. Such an interpretation would be ultra vires and a gross violation of the rule annou nced in Hickman v. Taylor. I assure the parties that I had no such intention, and I hereby amend the or der to include the following caveat: “This includes any investigation into that matter conducted by either DOJ or ATF at any time, except for any documents created or considered by the atto rneys who presently represent

the United States.”

VI. Conclusion

I have concluded that the deliberative, a ttorney-client, and work product privileges do not apply to the documents claimed to be pr ivileged. I have also concluded that the law enforcement privilege is applicable but that it yields in certain instances to plaintiff’s showing of need. When it does not yiel d, that privilege bars disclosure.20 As to the following documen ts, I find that they are in nocuous and insignificant because, for example, they sp eak of information that is now public. Thus, documents with the following Bates number ranges are protected by the law enforcement privilege:

DOJ_OPR00000260 to DOJ_OPR00000262 DOJ_OPR00000483 to DOJ_OPR00000486 DOJ_OPR00001219 to DOJ_OPR00001220 DOJ_OPR00001226 to DOJ_OPR00001227 DOJ_OPR00001228 to DOJ_OPR00001229 DOJ_OPR00001230 to DOJ_OPR00001231 DOJ_OPR00001237 to DOJ_OPR00001238 DOJ_OPR00001249 to DOJ_OPR00001249 DOJ_OPR00001250 to DOJ_OPR00001251 DOJ_OPR00001252 to DOJ_OPR00001253 DOJ_OPR00001263 to DOJ_OPR00001265 DOJ_OPR00001279 to DOJ_OPR00001280 DOJ_OPR00001281 to DOJ_OPR00001281 DOJ_OPR00001282 to DOJ_OPR00001283 DOJ_OPR00001284 to DOJ_OPR00001285 DOJ_OPR00001286 to DOJ_OPR00001287 DOJ_OPR00001288 to DOJ_OPR00001289 DOJ_OPR00001296 to DOJ_OPR00001298 DOJ_OPR00001332 to DOJ_OPR00001333 DOJ_OPR00001359 to DOJ_OPR00001359

Thus, with the exception of the documents just listed, a ll other claims of privilege are overruled and the defendant shall produce the remaining documents to the plaintiff on

or before June 26, 2015

.

IT IS SO ORDERED.

s/John M. Facciola

JOHN M. FACCIOLA Special Master