PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HUNTON & WILLIAMS, 

Plaintiff-Appellant,

v.  No. 08-1635

UNITED STATES DEPARTMENT OF

JUSTICE,

Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, Chief District Judge.

(3:06-cv-00477-JRS)

Argued: September 22, 2009

Decided: January 4, 2010

Before WILKINSON and MICHAEL, Circuit Judges, and

Irene M. KEELEY, United States District Judge

for the Northern District of West Virginia,

sitting by designation.

Affirmed in part, vacated and remanded in part by published

opinion. Judge Wilkinson wrote the majority opinion, in

which Judge Keeley joined. Judge Michael wrote a dissenting

opinion.
COUNSEL

ARGUED: Edward Peter Noonan, HUNTON & WILLIAMS,

LLP, Richmond, Virginia, for Appellant. Robert P. McIntosh,

OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: John Jay Range,

HUNTON & WILLIAMS, LLP, Washington, D.C., for

Appellant. Dana J. Boente, Acting United States Attorney,

Richmond, Virginia, for Appellee.

OPINION

WILKINSON, Circuit Judge:

This appeal centers on communications between the U.S.

Department of Justice ("DOJ") and a telecommunications

company, in which the company allegedly lobbied DOJ to

take its side in litigation with a client of law firm Hunton and

Williams, LLC ("Hunton"). The district court upheld DOJ’s

decision to deny Hunton’s request under the Freedom of

Information Act, 5 U.S.C. § 552 (2006), ("FOIA") for records

of those communications. Hunton contends that it is entitled

to the records, regardless of whether they satisfied the requirements of the so-called common interest doctrine, which

enables parties with a shared legal interest to pursue a joint

legal strategy. DOJ argues not only that common interest

communications are exempt from FOIA, but that we should

defer to the agency’s invocation of the common interest doctrine without demanding any serious inquiry into the validity

of its common interest claims. 

Both sides have a point, though only a partial one. DOJ

argues persuasively that FOIA does not strip the government

of its civil discovery privileges or its valuable right to partner

with other parties in litigation or in anticipation of the same.

At the same time, however, Hunton correctly contends that

2 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
common interest assertions by government agencies must be

carefully scrutinized. For the doctrine to apply, an agency

must show that it had agreed to help another party prevail on

its legal claims at the time of the communications at issue

because doing so was in the public interest. It is not enough

that the agency was simply considering whether to become

involved.

I.

A.

This FOIA action grows out of an earlier patent suit

brought by New Technology Products, Inc., ("NTP"), a client

of Hunton’s, against Research in Motion, Ltd., ("RIM"), manufacturer of BlackBerry communications devices. In August

2003, following an earlier jury finding that RIM had infringed

various patents held by NTP, the district court in the BlackBerry litigation entered an order enjoining RIM’s use of the

patented technology. Enforcement of the injunction was

stayed, however, pending RIM’s appeal, which ultimately

resulted in partial affirmation and a remand to the district

court. NTP, Inc. v. Research In Motion, Ltd., 418 F.3d 1282,

1326 (Fed. Cir. 2005). District court proceedings did not

resume until October 2005. Shortly after the jury reached its

verdict, proceedings to reexamine NTP’s patents were initiated before the United States Patent and Trademark Office

(PTO).

While RIM’s appeal in the BlackBerry litigation was pending, RIM began contacting officials from various executive

branch departments to express its concern about the injunction. On March 10, 2005, several DOJ attorneys, including

John Fargo, Director of the Intellectual Property Staff in the

Commercial Litigation Branch of DOJ’s Civil Division, met

with RIM attorney Herbert Fenster. At their meeting, Fenster

expressed his opinion that RIM and the federal government

had a mutual interest in opposing the BlackBerry injunction

HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 3
because the injunction would interfere with the federal government’s BlackBerry use. The United States government is

the largest single user of BlackBerry devices, and as a matter

of law, it cannot be subject to injunctive relief against the use

of patented technology. 35 U.S.C. § 1498(a) (2006); Trojan,

Inc. v. Shat-R-Shield, Inc., 885 F.2d 854, 856-57 (Fed. Cir.

1989). Fenster offered to furnish DOJ with information and

drafts of affidavits RIM was then in the process of obtaining

as part of its efforts to overturn the injunction. DOJ contends

that, immediately after the meeting, Fenster and Fargo orally

agreed to exchange documents on a confidential "common

interest" basis.

Fenster continued to discuss the BlackBerry litigation with

Fargo in the months that followed, supplying information,

documents, and declarations for DOJ’s use. The first time the

phrase "common interest" appeared in any written communication between RIM and DOJ was October 6, 2005, when

Fargo added the disclaimer "protected by joint and common

interest privilege" to an email reply he sent to Fenster. 

On November 8, 2005, two weeks after proceedings in the

BlackBerry patent litigation resumed in district court, DOJ

filed a Statement of Interest and requested that the matter be

stayed for 90 days. It argued that the injunction contemplated

by the district court could operate as a de facto injunction

against the government’s BlackBerry use and that the government needed more time to consider the issue. According to

Fargo, the decision to file the Statement was not made until

shortly before the actual filing. On November 10, 2005, two

days after the Statement of Interest was filed, Fargo and Fenster signed a written common interest agreement on behalf of

DOJ and RIM, which stated that their common interest relationship had come into being on February 4, 2005. On February 1, 2006, DOJ filed a motion to intervene in the district

court proceedings, which was granted. The litigation settled

the next month.

4 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
At some point prior to DOJ’s intervention, NTP became

concerned about communications between RIM and the PTO

in connection with the patent reexamination proceedings, and

in January 2006, counsel for NTP filed a FOIA request with

the PTO and its parent agency, the Department of Commerce,

to obtain any such communications. See Rein v. U.S. Patent

& Trademark Office, 553 F.3d 353, 362 (4th Cir. 2009). In the

wake of that request, Hunton learned of the common interest

agreement between DOJ and RIM. Shortly after the BlackBerry litigation settled, Hunton filed a second FOIA request,

this time with DOJ, seeking records of communications

between RIM and DOJ, as well as related communications

between DOJ and other agencies such as the PTO. DOJ withheld roughly half of the documents Hunton requested, and

Hunton challenged the withholding of those documents that

DOJ claimed were protected from disclosure by Exemption 5

of FOIA. 5 U.S.C. § 552(b)(5). Following an in camera

inspection of a substantial portion of the documents DOJ

withheld, the district court in Hunton’s DOJ FOIA suit

granted DOJ’s motion for summary judgment for all but three

of the documents at issue.

B.

The question of whether a district court properly granted

the government summary judgment in a FOIA action is one

of law, which we review de novo. Ethyl Corp. v. U.S. E.P.A.,

25 F.3d 1241, 1246 (4th Cir. 1994). Whether a document fits

within one of FOIA’s prescribed exemptions is also a matter

of law, unless the legal conclusion is based upon factual findings, which we review for clear error. Id.

FOIA provides that federal agencies shall "upon request for

records which reasonably describes such records . . . make the

records promptly available to any person." 5 U.S.C.

§ 552(a)(3)(A). The Act specifies nine exemptions from its

regime of disclosure, however. 5 U.S.C. § 552(b). In general,

these exemptions are to be narrowly construed. Bowers v.

HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 5
U.S. Dept. of Justice, 930 F.2d 350, 354 (4th Cir. 1991). The

burden of demonstrating that a requested document falls

under an exemption rests on the government. 5 U.S.C.

§ 552(a)(4)(B); City of Virginia Beach, Va. v. U.S. Dep’t of

Commerce, 995 F.2d 1247, 1252 (4th Cir. 1993).

Exemption 5 provides that FOIA disclosure rules do not

apply to "inter-agency or intra-agency memorandums or letters which 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).

"To qualify, a document must thus satisfy two conditions: its

source must be a Government agency, and it must fall within

the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that

holds it," such as the attorney-client, deliberative process, or

attorney work product privileges. Dep’t of the Interior v.

Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).

The district court’s finding that the documents now at issue

are of a character qualifying them for the privileges asserted

by DOJ is not challenged in this appeal. The only question we

address is whether the district court erred in finding that the

materials sought by Hunton qualify as "inter-agency or intraagency memorandums or letters."

II.

For more than 40 years, the Freedom of Information Act

has provided a way for the American people to keep a watchful eye on their government. "The basic purpose of FOIA is

to ensure an informed citizenry, vital to the functioning of a

democratic society, needed to check against corruption and to

hold the governors accountable to the governed." N.L.R.B. v.

Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The

Act discourages agencies from keeping in the dark actions

that might not withstand the light of day. For that reason, "disclosure, not secrecy, is the dominant purpose of the Act."

Klamath, 532 U.S. at 8.

6 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
FOIA was the first in a series of laws adopted between

1966 and 1976 that were designed to bring the activities of

federal agencies out of the shadows of official secrecy. FOIA

and its sister statutes — the Federal Advisory Committee Act,

Pub. L. No. 92-463, 86 Stat. 770 (1972) (codified as amended

at 5 U.S.C. app. at 455 (2006)), and the Government in the

Sunshine Act, 5 U.S.C. § 552b (2006),—reflected a concern

about the effects of self-interested private parties on the

administration of federal law. See H.R. Rep. No. 89-1497, at

26 (1966) (federal agency’s refusal to disclose bids on a multimillion dollar project concealed the fact that the lowest bidder had not been chosen and demonstrated the need for

FOIA). Cozy public-private relationships, selective disclosures to favored parties, and ex parte lobbying of agencies by

special interests were among the practices that FOIA sought

to subject to public scrutiny. See N. Dakota ex rel. Olson v.

Andrus, 581 F.2d 177, 182 (8th Cir. 1978) ("Preferential treatment of persons or interest groups fosters precisely the distrust of government that the FOIA was intended to obviate.").

The danger that agencies will be captured by the beneficiaries

of public largesse or the subjects of federal regulation has not

diminished with time, and FOIA’s disclosure mandate continues to play a vital part in the supervision of federal agencies

by their ultimate principals, the American people.

Although FOIA establishes a broad policy of transparency,

its commitment to that policy is not unlimited. The Act

acknowledges that "public disclosure is not always in the public interest." Baldrige v. Shapiro, 455 U.S. 345, 352 (1982).

FOIA’s nine specified exemptions reflect a wide array of concerns, in this case Exemption 5’s recognition that any agency’s ability to discharge its duties effectively depends on the

agency’s not having to operate "in a fishbowl." Virginia

Beach, 995 F.2d at 1252 (citation omitted). In situations

where the government consults with an attorney, Exemption

5 expresses Congress’s view that the public interest is not

served by stripping government agencies of the privileges otherwise available to them in litigation. FOIA was meant to fosHUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 7
ter political accountability, not to force the United States into

a uniquely disadvantaged litigation posture. Indeed, the

Supreme Court has noted that to allow a party to "obtain

through the FOIA material that is normally privileged would

create an anomaly in that the FOIA could be used to supplement civil discovery. We have consistently rejected such a

construction of the FOIA." United States v. Weber Aircraft

Corp., 465 U.S. 792, 801 (1984) (citations omitted).

III.

Given the tension in FOIA between the public’s interest in

transparency, on the one hand, and in effective public administration, on the other, it is ironic both sides in this dispute

have adopted rather absolute views of the scope of Exemption

5. Hunton contends that Exemption 5 provides no protection

to communications between RIM and DOJ, regardless of their

congruent interests in the course of actual litigation. DOJ

argues that its common interest agreement should shield all of

its communications with RIM, without any serious consideration of the scope and duration of the agreement. Neither

position fully reflects the balance struck in FOIA and the

cases that have interpreted it.

A.

Hunton argues that communications between RIM and DOJ

are unprotected by Exemption 5 as a matter of law because

RIM is a private party, not a part of DOJ, and those communications therefore are neither "inter-" nor "intra-agency." The

district court rejected this conclusion, reasoning that communications between a government agency and a party possessing common and unitary litigation interests should be

understood as "intra-agency" for purposes of Exemption 5.

The common interest doctrine permits parties whose legal

interests coincide to share privileged materials with one

another in order to more effectively prosecute or defend their

claims. In re Grand Jury Subpoenas, 89-3 and 89-4, John

8 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
Doe 89-129, 902 F.2d 244, 248-49 (4th Cir. 1990). Under

Hunton’s reading, however, the decision of a party, here the

government, to partner with others in the conduct of litigation

would somehow subject that party to the loss of its most basic

civil discovery privileges—namely, the attorney-client and

attorney work product privileges.

This is a sweeping view, and its impact on the government’s ability to conduct complex and multi-faceted litigation

would be staggering. We have made clear that the government

was entitled not to favored treatment under Exemption 5, but

simply to a level playing field. "The government has the same

right to undisclosed legal advice in anticipation of litigation

as any private party. And there is nothing in FOIA that prevents the government from drawing confidential counsel from

the private sector. Allowing disclosure here would impair an

agency’s ability to prepare effectively for litigation with private parties and thereby thwart its ability to discharge its functions in the public interest." Hanson v. United States Agency

for Int’l Devt., 372 F.3d 286, 294 (4th Cir. 2004). Although

Hunton argues that Hanson is inapplicable because the attorney in that case was employed by a private party working

under a government contract, Hanson’s result was based upon

the presence of shared and substantial interests, not upon

some notion that a government contractor’s attorney is a government attorney. Id. at 292. 

Nothing in the "inter-agency or intra-agency" language in

Exemption 5 demands that the government, alone among all

litigants, be stripped of civil discovery privileges when it has

done nothing more than communicate with other litigating

parties with whom it shares a singular and unitary litigation

interest. It is that convergence of interests that entitles the

government to communicate within the terms of the Exemption and to do so in a manner that does not strip it of those

deliberative privileges that other litigants enjoy and that are

widely recognized as necessary "to encourage full and frank

communication between attorneys and their clients and

HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 9
thereby promote broader public interests in the observance of

law and administration of justice." Id. at 291 (citation omitted). What is sometimes termed the common interest doctrine

is in this sense simply a matter of evenhandedness.

Congress’s whole purpose in drafting Exemption 5 was

thus not to have FOIA, which is of course directed only at the

government, place an agency at a serious disadvantage vis-avis private parties who are free of any FOIA constraints. To

allow adverse private litigants to use FOIA to claim this sort

of tactical advantage against the government would run

counter to the Exemption’s goal. For its clear thrust is simply

to ensure that FOIA does not deprive the government of the

work-product and attorney-client protections otherwise available to it in litigation. Nat’l Labor Relations Bd. v. Sears,

Roebuck & Co., 421 U.S. 132, 149 (1975) (Exemption 5

should be read "to exempt those documents, and only those

documents, normally privileged in the civil discovery context."); see also H.R. Rep. No. 89-1497, at 31 (1966) (Exemption 5 was intended to allow an agency to withhold materials

that would not be "routinely disclosed to a private party

through the discovery process in litigation with the agency.

. . ."). 

What the Supreme Court has termed the "Delphic" wording

of Exemption 5, Department of Justice v. Julian, 486 U.S. 1,

11 (1988), is thus clear in this respect—one side in litigation

cannot play by one set of rules and another side play by a

more privileged set of rules. If this were the case, attorneys

on one side of litigation could freely communicate, safe in the

knowledge that their work product and deliberative processes

would be privileged, while the other side would be obliged to

turn over communications of the very same nature to its

adversary. Further, in the absence of coordination, the

government—or any party whose interests align with the

government’s—might find its position strafed inadvertently

by "friendly fire." These are just a few of the problems created when one litigant is denied privileges accorded to all oth10 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
ers. FOIA does not require the government to litigate on such

distinctly disadvantageous terms.

This view is entirely consistent with the Supreme Court’s

teaching in Department of the Interior v. Klamath Water

Users Protective Ass’n, 532 U.S. 1 (2001). There the Court

held that Exemption 5 did not apply to communications

between Indian tribes and the Department of the Interior in

connection with two proceedings to determine the allocation

of water rights, one in state court and one within the Interior

Department itself. The Court held that those communications

could not be considered "inter-agency or intra-agency," since

the tribes were communicating with the federal government in

order to secure water rights for themselves. Id. at 14. That

holding did not impact the very different situation here—

namely, one where the two parties share a unitary interest in

achieving a litigative outcome and result. 

Indeed, the Court’s opinion in Klamath never discussed the

common interest doctrine. Further, the common interest doctrine could not have applied in Klamath because the government had not decided what its interests even were or

embarked upon a definite course of action. It was communicating with the tribes to make its own assessment of their

interests and of how those interests compared with the interests of the public. Id. at 5, 14. Finally, in Klamath, the government sought to advance the tribes’ private interests because it

had a fiduciary obligation to do so, not because it thought that

doing so was in the public interest. Id. at. 14. Klamath

addressed the case of self-interested parties attempting to persuade the government to adopt a particular policy, but those

concerns are no longer in play once the government is actually persuaded that the policy is in the public interest, as was

the case in Hanson.

It would eviscerate the meaning of Exemption 5 if we were

to read it to exclude communications between federal agencies and their litigation partners where those communications

HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 11
advance an interest that is both common and, in the government’s considered view, critical to the public’s interest. In

Klamath, the Supreme Court recognized the general view that

it is "textually possible and . . . in accord with the purpose of

the provision" to regard as "intra-agency" materials prepared

by outside parties with whom a federal agency consults.

Klamath, 532 U.S. at 9-10 (citation omitted). Numerous

Courts of Appeals have done just that. See Stewart v. U.S.

Dept. of Interior, 554 F.3d 1236, 1245 (10th Cir. 2009); Tigue

v. U.S. Dep’t of Justice, 312 F.3d 70, 78 & n. 2 (2d Cir.

2002); Hoover v. U.S. Dep’t of Interior, 611 F.2d 1132, 1138

(5th Cir. 1980); Brockaway v. Department of the Air Force,

518 F.2d 1184, 1191 (8th Cir. 1975); Soucie v. David, 448

F.2d 1067, 1078 n.44 (D.C. Cir. 1971); see also Gov’t Land

Bank v. G.S.A., 671 F.2d 663, 665 (1st Cir. 1982).

Both before and after Klamath, the District of Columbia

Circuit has applied this "consultant corollary" doctrine to

unpaid as well as paid consultants. Klamath expressly

declined to overrule two of the cases in which it did so. Klamath, 532 U.S. at 12 n.4 (citing Public Citizen, Inc. v. Department of Justice, 111 F.3d 168 (D.C. Cir. 1997); Ryan v.

Department of Justice, 617 F.2d 781 (D.C. Cir. 1980)). After

all, there is no reason why the advice of a consultant with no

conflict of interest should be protected from disclosure if the

consultant is paid for the advice but unprotected if it is offered

for free. As the D.C. Circuit recently explained in a case

which treated as "intra-agency" the opinions of outside legal

experts who provided free advice concerning the establishment of military tribunals, the consultants’ contributions were

"no less valuable or confidential for the lack of compensation

or formal contract." Nat’l Inst. of Military Justice v. United

States Dep’t of Defense, 512 F.3d 677, 684 (D.C. Cir. 2008),

cert. denied, 129 S.Ct. 775 (2008).

These cases make good sense. Such communications can

be considered "intra-agency" for the simple reason that the

outside attorney or consultant is collaborating with an agency

12 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
in the agency’s pursuit of the public interest. This same rationale readily reaches cases in which the government partners

with another party in litigation. Because the common interest

doctrine requires the agency to determine that the public interest and the litigation partner’s interest have converged, communications between the agency and its partner can be

understood as "intra-agency" for purposes of Exemption 5. By

cooperating with the agency in pursuit of the agency’s own

litigation aims, the litigation partner in a limited sense

becomes a part of the enterprise that the agency is carrying

out. See Ryan, 617 F.2d at 789. The underlying idea is essentially the same principle that allows us to refer to certain litigants as "private attorneys general." The point is not that the

outsider attorney general stands to gain from assisting the

government—that is equally true of paid consultants, agency

employees, and for that matter, of agencies themselves. The

point is that there is no conflict of interest when it comes to

advancing the public’s interest because the outsider stands to

gain personally only if the public’s interest is vindicated.

Hunton concedes that the Exemption 5 was not meant to

destroy the common interest doctrine, but argues that the doctrine applies only to the issue of whether a record is privileged. Since it is difficult to imagine a situation in which the

common interest doctrine would do any work once a document qualified as "inter-" or "intra-agency," however, it seems

clear that the doctrine is relevant to the question of whether

the document qualifies as "inter-" or "intra-agency," not to the

question of whether it is privileged. The common interest doctrine, it bears adding, is not a privilege in its own right. In re

Grand Jury Subpoenas, 902 F.2d at 249. Merely satisfying the

requirements of the common interest doctrine without also

satisfying the requirements of a discovery privilege does not

protect documents from disclosure any more than does merely

satisfying the "inter-agency or intra-agency" requirement.

Courts interpreting the various terms used in Exemption 5

have recognized the need to take a functional approach to

HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 13
ascertaining their meanings. Thus, although the prefixes

"inter-" and "intra-" may suggest that a document be transmitted from one person to another, "common sense" dictates that

Exemption 5 reaches handwritten notes kept in a file. Conoco

Inc. v. United States Dept. of Justice, 687 F.2d 724, 728 (3rd

Cir. 1982). Likewise, although Exemption 5 addresses itself

only to "letters and memorandums," the privileges Congress

sought to preserve would be gutted if FOIA could be used to

reach items like draft pleadings, litigation exhibits, and data

on government computers. See Chilivis v. S.E.C., 673 F.2d

1205, 1212 n.15 (11th Cir. 1982) ("In adopting exemption 5,

Congress clearly intended to exempt any document connected

with the agency’s deliberative process, not just memoranda

and letters."). To adopt Hunton’s view in its entirety would

send us in an opposite, doctrinaire direction. We would be

required to hold that never, under any circumstances, could

the United States claim the most basic civil discovery privileges when partnering with another party in litigation. To say

that view invites havoc is to understate the matter. We think

the more sensible course is to ask whether a common and singular public-private interest is present, not to invalidate the

proper assertion of civil discovery privileges wholesale.

B.

1.

The foregoing discussion demonstrates the applicability of

Exemption 5 to DOJ’s filing of its Statement of Interest with

the district court and its signing of the formal common interest agreement with RIM, both of which occurred in early

November 2005. The written agreement explains the parties’

shared interest in limiting the scope of any injunction in the

BlackBerry litigation and clearly manifests an agreement to

work together toward that end. The agreement stated that the

United States government is the single largest user of BlackBerry technology, and that "[t]he continued ability to employ

those BlackBerry systems and devices is considered of suffi14 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
cient importance to the U.S. as to make necessary the pursuit

of this subject through a common interest agreement." The

agreement defined the scope of the parties’ common interests

clearly, providing, for example, a means to terminate the

agreement if the parties came to believe that their interests

had diverged. DOJ’s decision to intervene in the litigation in

February 2006 provides further evidence that it had committed to taking RIM’s side.

The Statement of Interest confirms the veracity of the government’s interest in the BlackBerry litigation and explains

that interest in greater detail. In its Statement, DOJ asserted

that the injunction originally entered by the district court

"would amount to a de facto injunction against the government’s use of Blackberries" because it would "literally prohibit RIM from providing the services that would be essential

for the federal government, as well as state and local governments, to continue their use of the BlackBerry devices." Even

if the government’s use were not directly enjoined, there was

a serious risk that the government’s internal communications,

as well as its communications with those whom it needed to

be able to contact via BlackBerry, would be disrupted by an

injunction against RIM. 

Nor could the problem be fixed merely by pointing out the

need to protect governmental BlackBerry use. The Statement

explained that "there does not appear to be a simple manner"

by which to segregate government BlackBerry users from

other users. Over several pages, DOJ set forth the technical

complexities that fashioning appropriate injunctive relief

against RIM would involve. For one thing, it simply would

not be possible to distinguish separate communications on an

email-by-email basis. The best that could be hoped for was to

create a list of approved BlackBerry users who would be

given an across-the-board exemption from any injunction,

regardless of whether their communications were being made

in their official capacities. Even then, the government would

be required to carry out "a time-consuming inventory of every

HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 15
agency within the federal government" and to create and

maintain a database of BlackBerry information that would

only become "more complicated and prone to error" when due

allowance was made for outside users—such as state and

local governments, government contractors, and nongovernmental organizations like the American Red Cross—

whose ability to communicate with the federal government

was essential to the federal government’s BlackBerry use.

Ensuring that "the federal government’s communications,

which include a raft of time-sensitive official communications, are not disrupted by any injunction" would be difficult

at best. The task would be Herculean, if not impossible. In

short, the Statement makes it abundantly clear that, in partnering with RIM, DOJ was asserting a genuine public interest in

seeking to ensure that "the federal government’s right to continue its use of BlackBerry devices is not rendered a nullity."

Moreover, the record in this case suggests that concern

about a BlackBerry injunction against RIM and its impact in

turn on government operations was widespread. As Fargo

noted in his sworn statement, the government’s "ability to

send messages to, and receive messages from[,] public and

private recipients in emergency or crisis situations" was a

source of serious concern. Every member of Congress had

been issued a BlackBerry, for instance, because BlackBerry

technology permitted emergency communications when other

communications systems were inoperative. The Department

of Homeland Security had numerous contacts with Fargo,

including originally alerting Fargo of Fenster’s concerns and

making the request that prompted DOJ to file the Statement

of Interest. Federal officials also received information specifically pertaining to BlackBerry use by the Defense Department, and in response to an interrogatory from Hunton, the

government disclosed that personnel from the Departments of

Defense and Homeland Security may have been informed of

the existence of a "recognized common interest" between

RIM and DOJ.

16 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
Further, Fargo testified that a number of agencies had contacted DOJ in order to find out what the effect of an injunction would be on their BlackBerry use, and he discussed his

communications with representatives of the Departments of

Defense, Energy, Health and Human Services, Homeland

Security, and State, the Executive Office of the President and

the Department of Commerce’s Bureau of Industry and Security. The government also perceived that it might have a

"broad general interest in avoiding any disruption to first

responders, state and local governments, health care, and the

economy generally that might accompany an injunction."

Thus, as of November 2005, there can be no doubt that the

government had determined that it was in the public interest

for RIM to succeed in its efforts to constrain the scope of

injunctive relief entered in the BlackBerry litigation. The federal government is BlackBerry’s biggest customer, and it had

an obvious interest in avoiding the serious disruption to its

operations that an overly broad BlackBerry injunction would

entail. And the agreement between RIM and DOJ in November 2005 makes it clear that RIM and DOJ had committed to

working together to achieve that goal. As a result, Exemption

5 properly applies to communications made pursuant to that

agreement. It does not matter that RIM was motivated by the

commercial benefit that would accrue to it if it succeeded in

opposing the BlackBerry injunction while the government

was motivated by concern for the public interest. What matters is that there was a unity of interest in preserving a nondisruptive pattern of governmental BlackBerry use, and RIM

and DOJ could rely on one another’s advice, secure in the

knowledge that privileged communications would remain just

that.

2.

Hunton next argues that even if a shared interest of RIM

and the government in narrowing the scope of a BlackBerry

injunction existed once the written common interest agreeHUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 17
ment was executed, common interest principles should not

apply to their efforts to limit a BlackBerry injunction because

RIM and DOJ did not face an adverse party on that issue.

Hunton contends that NTP had no interest in an injunction

that was broader than what the law allowed and consistently

attempted to work with DOJ to protect the government’s

BlackBerry use. 

Citing language used by the Third Circuit in Haines v. Liggett Group, Inc., 975 F.2d 81, 90 (3d Cir. 1992), Hunton

asserts that an adverse party is a prerequisite for invoking the

common interest doctrine. We need not address the issue here,

however. In this case, there was ample evidence to support the

district court’s conclusion that NTP was, in fact, adverse to

DOJ and RIM when it came to the scope of injunctive relief

in the BlackBerry litigation. NTP in fact opposed DOJ’s

request for an evidentiary hearing regarding the feasibility of

a BlackBerry injunction at the time DOJ filed its Statement of

Interest, for instance, and Fargo testified in his deposition that

he "did regard [NTP] as an adverse party." NTP sent a series

of six requests for information to DOJ, which Fargo viewed

as informal requests for discovery, and NTP disagreed with

DOJ about the length of time that would be needed to phase

in an injunction. Finally, DOJ successfully argued that it

should be allowed to intervene in the BlackBerry litigation

because although NTP had conceded that an injunction should

not infringe the U.S. government’s BlackBerry rights, NTP

had "only offered the court unsupported statements asserting

the ease with which" a workable injunction could be crafted,

without specifying how this could be done.

The foregoing serves to confirm what should be obvious:

DOJ became involved in the BlackBerry litigation because it

was concerned that its interests might be infringed by an

injunctive award in NTP’s favor. NTP stood to benefit from

a broad injunction, while DOJ would likely be harmed by one.

There is every reason to suppose that their interests were in

18 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
conflict, and the district court’s decision on this point cannot

be said to be clear error.1

IV.

A.

Although the applicability of common interest principles to

communications between RIM and DOJ from November

2005 onward has been firmly established, DOJ’s decision to

withhold materials generated between March and November

2005 presents a much closer question. DOJ urges a broad and

deferential approach to determining whether those communications are shielded by Exemption 5. The Supreme Court’s

decision in Department of the Interior v. Klamath Water

Users Protective Ass’n, 532 U.S. 1 (2001), makes clear, however, that any attempt to invoke the common interest doctrine

in order to avoid disclosure under FOIA must be more carefully scrutinized. In Klamath, the Court took pains to emphasize that the words "inter-agency or intra-agency" cannot be

"drain[ed] . . . of independent vitality." Id. at 12. The government, not Hunton, bears the burden of demonstrating that the

common interest doctrine applies to materials it has withheld,

and the elements of the common interest doctrine must therefore be analyzed with precision. 

Klamath reaffirmed that contacts between self-interested

parties and federal agencies are not to be casually exempted

from FOIA’s scheme of disclosure. FOIA gives the public the

1Hunton also argues that DOJ did not share RIM’s interest in preventing

the entry of a BlackBerry injunction altogether, as opposed to an interest

in ensuring that a BlackBerry injunction was properly narrowed. A fair

interpretation of a common interest agreement, however, must leave room

for the parties to debate the means by which they will secure their common end. Since defeating a BlackBerry injunction outright was one

way—and may realistically have been the only way—to protect governmental BlackBerry use, discussion of this topic fell within the scope of

RIM’s and DOJ’s common interests. 

HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 19
right to know about the government’s communications with

an entity that is "pressing its own view of its own interest" on

the government. Id. at 14. The "dispositive point" in Klamath

was that the "apparent object of the Tribe’s communications

is a decision by an agency of the Government to support a

claim by the Tribe that is necessarily adverse to the interests

of competitors." Id. To be sure, Klamath did not foreclose all

confidential communications between federal agencies and

private parties, even self-interested ones. Other exemptions

may remain available. Indeed, in this case, Hunton has not

challenged DOJ’s invocation of Exemption 4, which protects

the exchange of confidential trade secret information. See 5

U.S.C. § 552(b)(4). But Klamath requires the government to

show that communications with a party involve something

other than self-interested lobbying before the agency can

withhold them under the Act. As the Court put it, "the intraagency condition excludes, at the least, communications to or

from an interested party seeking a Government benefit at the

expense of other applicants." Klamath, 532 U.S. at 1.

DOJ argues, however, that Klamath "should be confined to

its facts and holding." Appellee’s Br. at 27. The department

asserts that, unlike Klamath, this case does not entail competition for government benefits at the expense of others. This

assertion is too sweeping. It is undeniable that support from

DOJ in litigation is a very valuable benefit to confer upon a

litigant, and it is equally self-evident that such a benefit

entails a corresponding detriment to the litigant’s opponent.

In Hanson, the only question was whether a common interest existed at all, not, as in this case, whether it extended as

far as the government contended. Hanson, 372 F.3d. at 292.

In this regard, the government argues we should not overturn

the district court’s conclusions concerning the scope of the

common interest doctrine unless the district court committed

clear error. But the appropriateness of the standard used by

the district court to make its determinations is a question of

law, which we review de novo. Ethyl Corp., 25 F.3d at 1246.

20 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
The legal standard applied here was not the searching one that

Klamath requires.

In the proceedings below, the district court ruled that the

common interest doctrine applied to exempt from FOIA communications between RIM and DOJ from March 2005

onward. It explained that, as of March 2005, the record contained "indicia of joint strategy" between RIM and DOJ, insofar as DOJ and RIM "agreed to exchange declarations, other

proposed pleadings, and their views on issues relating to the

effect of any injunction on the government and the public

interest."

This analysis was flawed in two respects. First, although a

common interest agreement can be inferred where two parties

are clearly collaborating in advance of litigation, mere "indicia" of joint strategy as of a particular point in time are insufficient to demonstrate that a common interest agreement has

been formed. Second, it is not clear that the particular "indicia" identified by the district court pointed to an actual common interest agreement, as opposed to a mere confidentiality

agreement. Hunton contends that the parties exchanged declarations, proposed pleadings, and views as part of the process

of persuading DOJ to become involved in the BlackBerry litigation. That contention is entirely plausible, particularly to the

extent that the communications were initiated by RIM or

flowed primarily from RIM to DOJ. The district court gave no

indication that there was anything in the documents themselves that showed them to be part of a joint litigation effort,

rather than an attempt by RIM to push its arguments on the

government.

Documents exchanged before a common interest agreement

is established are not protected from disclosure. In re Grand

Jury Subpoena: Under Seal, 415 F.3d 333, 341 (4th Cir.

2005). Thus, a proper assessment of the applicability of the

common interest doctrine in this case requires a determination

of the point in time when DOJ decided that it was in the pubHUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 21
lic interest for RIM to prevail in its litigation with NTP and

agreed to partner with RIM in doing so. The danger in this

area is once again that mere lobbying efforts, as opposed to

joint litigation strategy, will be removed from FOIA’s reach.

B.

We thus turn to the record and consider those materials

exchanged between RIM and DOJ between March 2005 and

November 2005. In his affidavit, Fargo, representing DOJ,

stated that he agreed to exchange documents with Fenster,

representing RIM, on a confidential basis at the conclusion of

their March 10, 2005, meeting. Hunton questions whether any

agreement was reached, pointing to the absence of any record

of it in Fargo’s contemporaneous notes. The district court

appears not to have determined whether the parties actually

formed an agreement as of that date, noting only that there

were "indicia of joint strategy" from that point onward.

While agreement need not assume a particular form, an

agreement there must be. If RIM was simply approaching

DOJ over the prospect that there might one day be a joint litigation effort, such contacts and discussions seem too preliminary to remove from disclosure under Exemption 5. The

record raises a number of questions as to whether a common

interest agreement existed as early as March 2005. First, there

is Fargo’s description of the interest DOJ shared with RIM.

In his deposition, Fargo stated that DOJ and RIM shared an

interest in communicating about the possible effects that an

injunction entered against RIM would have. According to

Fargo, RIM and DOJ agreed that "we would exchange views.

Certainly, they would provide us with views, potential sources

of information, potentially some draft declarations." This

characterization, however, comes close to an agreement to

exchange information in order to make an assessment, rather

than an agreement to undertake a joint legal strategy.

Second, Fargo stated in his deposition testimony that DOJ

did not decide to file a Statement of Interest until shortly

22 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
before the Statement was filed on November 8, 2005. As late

as October 26, 2005, it appears that Fenster was communicating with Fargo regarding the "preparation of [a] declaration"

addressing the government’s and the public’s interest. Thus,

DOJ did not decide to become involved in the BlackBerry litigation until some time after the March 10, 2005, meeting, and

there is reason to believe that Fenster was still pressing the

government to take that step as late as October 2005.

Third, the parties failed to create a written common interest

agreement until November 2005. This was the time DOJ filed

its Statement of Interest, further suggesting that the government may not have made up its mind in the preceding period,

or at least, not as early as March 2005. Fargo was an experienced attorney who knew how to create such an agreement if

it served the public interest to do so. As DOJ itself notes,

Fargo "routinely" creates common interest agreements and

reviews those created by his staff. Yet neither party made any

kind of "common interest" notation on their written communications until October 2005. In addition, while Fargo told his

supervisor that he was entering a common interest agreement

in November 2005, he told his supervisor only that he and

Fenster were exchanging materials "on a confidential basis"

prior to that time.

Finally, the record in this case presents the sort of features

that underscore the need for watchfulness where the common

interest doctrine is sought as a means to avoid FOIA’s disclosure requirements. In this regard, it is significant if communications were initiated by the private party, if the bulk of the

communications came from a private party, and if there are

sparse indications that the government had come to terms

with the public interest at stake in the case. The purposes and

initiatives of the private party are especially important. In the

proceedings below, Hunton suggested that RIM used DOJ in

part as a conduit through which it could present its views to

the PTO. Because PTO reexamination proceedings were

underway, communications between the PTO and RIM were

HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 23
in some instances required to be on-the-record and in others

were prohibited outright. The record in this case reveals that

DOJ forwarded draft pleadings supplied by RIM to the PTO.

DOJ maintains that it had an interest in finding out the status

of the reexamination proceedings, but it is not immediately

clear why such an inquiry would require DOJ to pass litigation materials along from RIM to the PTO. Although the district court, after examining the DOJ-PTO communications,

found that the PTO had not disclosed details of the patent

reexaminations for DOJ to relay to RIM, that finding does not

speak to Hunton’s suggestion that RIM was seeking to influence the PTO. Hunton’s claim raises precisely the sorts of

concerns about self-interested advocacy that were so central

in Klamath—particularly since there was a similar risk in

Klamath that one agency representing private interests in litigation would communicate with a sister agency that was

simultaneously adjudicating closely related claims.

In short, there are a number of items in the record suggesting that DOJ may not have decided to partner with RIM in the

BlackBerry litigation much before November 2005. The fact

that DOJ later concluded it shared RIM’s interest does not

protect communications between the two before that decision

was made. An agreement to hear what RIM had to say and to

keep what it heard confidential must not be confused with a

conclusion that the public interest required taking RIM’s side.

We express no opinion on the ultimate merits of Hunton’s

objections to DOJ’s withholding of these materials. Although

we have highlighted aspects of the record that call DOJ’s

claims into some doubt, the record does not foreclose the possibility that the parties did indeed reach a common interest

understanding at some point before November 2005, which

the written agreement served only to memorialize. The common interest doctrine requires a meeting of the minds, but it

does not require that the agreement be reduced to writing or

that litigation actually have commenced. What FOIA requires

is not that the government invariably lose in disclosure dis24 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
putes, but that its claims be carefully evaluated. The analysis

we set forth combines a recognition of the government’s right

to partner with those who share its legal interests with the

judicial skepticism that FOIA demands. It will be the district

court’s job on remand to address any agreement and submissions of the parties under the standards we have identified.

C.

We finally thank our colleague for his thoughtful dissent,

to which a brief response is in order. The dissent asserts that

DOJ cannot invoke Exemption 5 because, notwithstanding the

joint RIM/DOJ effort to defeat the injunction, RIM was "acting in its own interest." But that principle would eviscerate

the government’s discovery privileges, since anyone who

joins forces with the government in litigation will benefit if

the partnership is successful. What the dissent misses is that

where the government decides to work with a party to achieve

a legal result beneficial to both, the danger of "selfadvoca[cy] at the expense of others" subsides. Klamath, 532

U.S. at 12. Within the scope of their shared interest, the time

for advocacy has by then passed. In attempting to realize their

shared goal, each side advises the other with an eye toward

"truth and its sense of what good judgment calls for." Id. at

10. Our remand in this case requires district courts to be attentive both to when a common interest is formed and to what

communications lie within the scope of that interest. By contrast, our dissenting colleague recognizes virtually no right on

the part of the government to share common interests at all.

Recognizing the sweeping nature of its approach, the dissent intimates that the result might be different if the government were a party in litigation and "a communication,

privileged under the common interest doctrine, between an

agency and a non-agency co-party" were at issue. But why?

The government’s co-party would still from the dissent’s perspective be "acting in its own interest." The communications

would still, under the dissent’s view, not be inter- or intraHUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 25
agency. The criteria announced by the dissent have no logical

stopping point short of crippling the government’s discovery

privileges. And beyond that, how is the co-party rule to be

applied, to take just a few examples, to parallel litigation, to

indemnitors who lack formal party status, to amici, to

movants whose request for leave to intervene is under advisement? And further, although privileges may be asserted in litigation, they often protect earlier attorney-client

communications and attorney work product because litigation

is not something that springs forth instantaneously like

Athena from Zeus’s head. The question simply cannot be

resolved by drawing formal or arbitrary lines that overlook

the actual point at which a common interest redounding to the

public benefit is formed.

Words take their meaning only in context. Exemption 5 is

brief and its phrasing is, to the Supreme Court at least, "Delphic." Julian, 486 U.S. at 11. This much, however, is true: the

Court has "consistently" held that FOIA is not to be used to

"supplement civil discovery" and obtain "material that is normally privileged." Weber Aircraft, 465 U.S. at 801. In short,

the government is not to be denied the right, available to

every private litigant, to seek and obtain undiscoverable legal

advice, information, and counsel, including from a common

interest partner. Yet the dissent, through an unfortunate parsing of Exemption 5’s opaque wording, would hobble the government alone in just this fashion and deny Exemption 5 the

only meaning it could have.2

2We agree with the dissent that the intra-agency prong of Exemption 5

cannot be collapsed into the privilege prong, see Klamath, 532 U.S. at 12,

but as we have already noted, the common interest doctrine is not itself

a privilege. It plays the same role in litigation that the intra-agency

requirement does under FOIA: it identifies those with whom materials of

a privileged nature can be shared. 

26 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
V.

FOIA and its exemptions frequently present a tension. The

Act reflects both a commitment to transparency and to administrative efficacy, to the public’s right to know and to agencies’ duty to fulfill their stated missions. Here those interests

are obvious. Congress did not intend to shield from the public’s eye the efforts of private parties to lobby an undecided

agency to expend public resources and shape agency policy in

ways beneficial to themselves. Neither did it intend, however,

to force federal agencies to surrender critical civil discovery

protections and litigate with one hand behind their backs. It

is the job of the courts, bearing in mind the government’s burden, to give effect to both of the values that FOIA seeks to

advance.

For the foregoing reasons, we affirm the district court’s

conclusion that privileged communications between DOJ and

RIM subsequent to their November 2005 common interest

agreement are protected from disclosure by FOIA Exemption

5. We vacate its conclusion that a common interest relationship existed between RIM and DOJ from March 2005 to

November 2005. On remand, the district court should determine the point in time when DOJ decided that the public’s

interest converged with RIM’s interest in opposing broad

injunctive relief, that it wanted RIM to prevail in its litigation,

and that it would assist RIM in doing so. The judgment is

hereby

AFFIRMED IN PART,

VACATED AND REMANDED IN PART.

MICHAEL, Circuit Judge, dissenting:

I respectfully dissent. The documents exchanged between

Research in Motion, Ltd. (RIM) and the Department of Justice (DOJ) about the BlackBerry patent infringement case

(BlackBerry litigation) brought by NTP, Inc. against RIM

HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 27
were improperly withheld by DOJ under exemption 5 of the

Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(5).

This conclusion is mandated by Department of the Interior v.

Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001).

Klamath makes clear that RIM’s communications with DOJ

were undertaken in RIM’s own interest as a self-advocate at

the expense of its opponent, NTP. As a result, the communications did not meet exemption 5’s first condition as "intraagency" communications and thus could not be withheld

under exemption 5, even if RIM and DOJ shared a common

interest in the BlackBerry litigation.

I.

FOIA’s exemption 5 allows the government to withhold

"inter-agency or intra-agency memorandums or letters which

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). To qualify under exemption 5, "a document must thus satisfy two

conditions." Klamath, 532 U.S. at 8. First, "its source must be

a Government agency." Id. (emphasis added). Second, "it

must fall within the ambit of a privilege against discovery

under judicial standards that would govern litigation against

the agency that holds it." Id. The issue in this appeal is

whether certain communications between RIM and DOJ are

"intra-agency memorandums or letters" that DOJ could withhold under exemption 5.

We are bound by Klamath, the Supreme Court decision that

sets the standard for determining when exemption 5 may

extend to communications between outsiders and government

agencies. In Klamath certain Indian tribes sent governmentsolicited communications to the U.S. Department of the Interior (the Department) with respect to pending water allocation

decisions to be made by the Department; and one tribe communicated with the Department about the scope of claims the

Department would assert on the tribe’s behalf in state-court

litigation to adjudicate certain water rights. The Department

28 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
invoked exemption 5 to deny certain FOIA requests, made by

a group adverse to the tribes, for tribe-Department communications with respect to the water allocation proceedings. The

issue before the Court was whether the documents passing

between the tribes and the Department were "intra-agency

memorandums or letters," a condition necessary to exempt

them from disclosure.

The Court in Klamath began its analysis by emphasizing

that "neither the terms of [exemption 5, which cover ‘intraagency memorandums,’] nor the statutory definitions," 5

U.S.C. §§ 551(l), 552(f), "say anything about communications

with outsiders," 532 U.S. at 9. To begin with, the prefix

"intra-" means "within." Webster’s New College Dictionary

595 (3d ed. 2008). Thus, as the Court observed, "the most natural meaning of the phrase ‘intra-agency memorandum’ is a

memorandum that is addressed both to and from employees of

a single agency." 532 U.S. at 9 (quoting Dep’t of Justice v.

Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J., dissenting))

(emphasis added). The Court recognized, however, that some

courts of appeals "have held that [exemption 5] extends to

communications between Government agencies and outside

consultants hired by them." Id. at 10. It was critical, however,

that those consultants did not represent any other interest

while providing advice to an agency: 

In such cases, the records submitted by outside consultants played essentially the same part in an agency’s process of deliberation as documents prepared

by agency personnel might have done. . . . [T]he fact

about the consultant that is constant in the typical

cases is that the consultant does not represent an

interest of its own, or the interest of any other client,

when it advises the agency that hires it. Its only obligations are to truth and its sense of what good judgment calls for, and in those respects the consultant

functions just as an [agency] employee would be

expected to do.

HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 29
Id. at 10-11.

After assuming, without deciding, that communications

from a disinterested consultant to an agency may qualify as

"intra-agency" under exemption 5, the Court held that the

tribal communications to the government in Klamath were not

intra-agency. According to the Court, the intra-agency condition excludes an outsider’s communication that seeks agency

action "that is necessarily adverse to the interests of [the outsider’s] competitors." Id. at 14. Because the tribes were

advancing their own interests, in competition with others,

their communications to the Department of the Interior with

respect to water allocation proceedings were not intra-agency

communications under exemption 5. Put differently, the

tribes, though labeled as consultants by the agency, were simply not "enough like the agency’s own personnel to justify

calling their communications ‘intra-agency.’" Id. at 12.

Under Klamath the documents passing between RIM and

DOJ were not intra-agency. In communicating with DOJ with

respect to the BlackBerry litigation, RIM was acting in its

own interest as a self-advocate at the expense of its opponent

and competitor, NTP. RIM was in a tight spot when it began

lobbying DOJ in March 2005 to intervene on RIM’s side in

the BlackBerry litigation. RIM faced a district court judgment

that, among other things, (1) determined that RIM’s BlackBerry system had infringed NTP’s patents and (2) enjoined

RIM from further infringement. Although the broad injunction was stayed pending appeal, the Federal Circuit, in affirming the district court in part, cleared the way for the

reinstatement of the injunction on remand.

The prospect of an injunction prompted RIM in January

2005 to retain Herbert Fenster, a Washington, D.C., lawyer,

for the purpose of lobbying the government to oppose any

injunction, or to argue for a limited one, in the BlackBerry litigation. Fenster understood that the government could not be

enjoined from use of the BlackBerry system, but he argued to

30 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
DOJ that it should oppose an injunction altogether because

the government-related BlackBerry "uses that could be

[exempted] from an injunction were so inextricably intertwined with non-government related uses that there would be

no practical way to separate them." J.A. 57. Fenster also

urged DOJ to oppose any injunction because the public

interest—not just the government’s operational interests—

would be impaired by a broad injunction that prohibited commercial use of the BlackBerry system. Fenster continued to

press DOJ to argue for no injunction even after RIM and DOJ

entered into the November 10, 2005, common interest agreement, a document confirming that the government’s declared

interest was limited to requesting the court to fashion an

injunction that would not interfere with the government’s use

of the BlackBerry system.

Fenster’s communications to DOJ on behalf of RIM had

the same characteristics and objectives that led the Supreme

Court in Klamath to reject the argument that the tribes’ communications with the government in that case were intraagency. Fenster was a "self-advocate[]" pressing RIM’s view

"at the expense of [NTP]" in urging DOJ to take "position[s]

necessarily adverse to [NTP]." Klamath, 532 U.S. at 12-13. In

other words, the "object of [Fenster’s] communications" was

a series of DOJ decisions that would "necessarily [be] adverse

to the interests of [a] competitor[]," NTP. Id. at 14. Finally,

Fenster was not like a "consultant [who] functions just as an

[agency] employee would be expected to do." Id. at 11. That

is, although his entreaties to DOJ on behalf of RIM were

legitimate, he was not like the consultant whose "only obligations are to truth and its sense of what good judgment calls

for." Id. at 11 (emphasis added). Klamath affords us no leeway. The Fenster-DOJ communications do not qualify as

intra-agency.

The majority argues that when an outsider and the government have a unitary interest that fits within the common interest doctrine, communications between the outsider and the

HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 31
agency can be understood as "intra-agency" under exemption

5. The common interest doctrine, however, relates only to the

second condition of exemption 5, that is, the communication

"must fall within the ambit of a privilege against discovery."

Klamath, 532 U.S. at 8. Satisfaction of the second condition

cannot serve as automatic satisfaction of the first condition.

As the Supreme Court emphasized in Klamath, there is "no

textual justification for draining the first [intra-agency] condition of independent vitality," id. at 12, and "the first condition

of Exemption 5 is no less important than the second," id. at

9. Failure to satisfy the first (intra-agency) condition "rules

out any application of Exemption 5" to a communication that

would otherwise be privileged against discovery. Id. at 12.

As I have already discussed, Fenster was not functioning

intra-agency when he urged DOJ to argue against an injunction, or in favor of one substantially reduced in scope, in the

BlackBerry litigation. This conclusion, of course, means that

the government cannot communicate in secret with an outsider who might have useful advice, but who cannot be

regarded as acting intra-agency. In Klamath the Court recognized, and accepted, this very outcome as mandated by Congress in FOIA. The Court agreed with the government’s

argument (1) "that the candor of tribal communications with

the Bureau [of Indian Affairs] would be eroded without the

protections of the deliberative process privilege recognized

under Exemption 5," and (2) "that confidentiality in communications with tribes is conducive to a proper discharge of [the

government’s] trust obligation [to the tribes]." Id. at 11. However, the government’s argument "skip[ped] a necessary

step," the Court emphasized, "for it ignore[d] the first condition of Exemption 5, that the communication be ‘intraagency.’" Id. at 12. Here, the majority skips the same necessary step when it holds that the common interest privilege is

sufficient by itself to invoke the protection of exemption 5.

II.

The majority appears to be most concerned with an issue

that is not presented in this case: whether a communication,

32 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
privileged under the common interest doctrine, between an

agency and a non-agency co-party is exempt from disclosure

under exemption 5. This question should be left for another

day because RIM and the government were not co-parties

here. Rather than seeking to become a party, the United States

filed a statement of interest and later obtained leave to intervene for the limited purpose of appearing at a hearing on

injunctive relief. 

Self-serving communications from outsiders, like Fenster’s

on behalf of RIM to DOJ to lobby it to file a statement of

interest, are the very sort of communications that FOIA meant

to expose to the light of day. A statement of interest, which

is authorized by 28 U.S.C. § 517, is designed to explain to a

court the interests of the United States in litigation between

private parties. Blondin v. Dubois, 238 F.3d 153, 159 n.6 (2d

Cir. 2001). It goes without saying that a statement of interest

can affect the outcome. See, e.g., Republic of Austria v. Altmann, 541 U.S. 677, 701-02 (2004). When an outsider, such

as Fenster, who is not acting intra-agency, lobbies the government to file a statement of interest supporting the position of

the outsider’s client, FOIA requires that the outsider’s communications be disclosed. In this way, "FOIA’s mandate of

broad disclosure," Klamath, 532 U.S. at 16, serves as a

healthy check on both the government and the lobbyists.

III.

This case disproves the majority’s argument that once the

government decides that it has a common interest with an outsider, "the danger of self-advocacy at the expense of others

subsides" or "has by then past." Ante at 25 (internal quotation

marks, alteration, and citation omitted). Here, after DOJ and

RIM formed a common interest in arguing for a limited

injunction against RIM, RIM (through Fenster) continued to

lobby DOJ to go much further and oppose, on public interest

grounds, the award of any injunction at all. Even under the

majority’s approach, communications between RIM and DOJ

HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 33
about the public interest—an area where RIM and DOJ had

not formed a common interest—should be disclosed.

More fundamentally, once RIM and DOJ formed a common interest in limiting an injunction, RIM’s self-advocacy at

the expense of NTP did not subside or disappear insofar as the

scope of an injunction was concerned. Rather, RIM was

spurred to lobby DOJ to press for the narrowest injunction

possible, whether or not the government’s interest could have

been accommodated by one that was broader. This effort by

RIM—to convince DOJ that the common interest would be

best advanced by an essentially toothless injunction—was at

one level undertaken by RIM in its own interest to weaken the

position of NTP, its competitor. At this level RIM was acting

as a self-advocate and not acting intra-agency.

The majority gets no mileage from the Supreme Court’s

statement in United States v. Weber Aircraft Corp., 465 U.S.

792, 801-02 (1984), that it does not construe FOIA as a mechanism for easy circumvention of normal discovery privileges.

The Court emphasized that it would "simply interpret Exemption 5 to mean what it says." Id. at 804. Later, in Klamath the

Court read exemption 5 as setting forth two conditions of

equal importance. It concluded that exemption 5 was inapplicable when the communications were not intra-agency but

"would normally be privileged in civil discovery." Klamath,

532 U.S. at 5. In other words, when communications between

an outsider and the government fail the first (intra-agency)

condition, the communications must be disclosed even if they

meet the second (discovery privilege) condition.

Finally, I do not, as the majority suggests, draw formal,

arbitrary lines or parse words in reading exemption 5. I simply apply the Supreme Court’s straightfoward interpretation

of exemption 5 in Klamath: the intra-agency condition

excludes a self-interested outsider’s communication that seeks

agency action "that is necessarily adverse to the interests of

[the outsider’s] competitor[]." Id. at 14. RIM’s communica34 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
tions to DOJ were not intra-agency because RIM acted

throughout in a way that was necessarily adverse to NTP. As

DOJ was formulating its statement of interest in the BlackBerry litigation, RIM pressed DOJ to argue for a very narrow

injunction, which would benefit RIM at the expense of NTP.

Thus, the government was not immune from RIM’s selfinterested lobbying even after a common interest was formed.

Because this sort of lobbying is not intra-agency, exemption

5 does not shield it from public disclosure.

HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 35