1 F4D3NYTC 1 2 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE, 4 Plaintiffs, 5 v. 14 CV 3777 (JPO) 6 7 THE UNITED STATES DEPARTMENT OF JUSTICE, 8 9 Defendant. ------------------------------x New York, N.Y. April 13, 2015 10:00 a.m. 10 11 Before: 12 HON. J. PAUL OETKEN, 13 District Judge 14 APPEARANCES 15 16 DAVID E. MCCRAW JEREMY A. KUTNER Attorneys for Plaintiff 17 18 19 20 PREET BHARARA United States Attorney for the Southern District of New York Attorney for Defendant JEANNETTE A. VARGAS Assistant United States Attorney 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 F4D3NYTC 1 THE DEPUTY CLERK: Your Honor, this is in the matter 2 of The New York Times Company and Charlie Savage v. The United 3 States Department of Justice. 4 appearance for the record, please. 5 6 MR. McCRAW: All counsel please state their Good morning. David McCraw, assistant general counsel, New York Times Company, for the plaintiffs. 7 MR. KUTNER: 8 THE COURT: 9 MS. VARGAS: Jeremy Kutner for the plaintiffs. Good morning. Good morning, your Honor. Jeannette 10 Vargas with the U.S. Attorney's Office for the Southern 11 District of New York on behalf of defendant United States 12 Department of Justice. 13 THE COURT: 14 MS. VARGAS: 15 THE COURT: Good morning. Good morning. We're here for argument on the cross 16 motions for summary judgment in this case, which is a Freedom 17 of Information Act case. 18 Charlie Savage have sought really two sets of documents, the 19 first being FBI 302 reports relating to the investigations at 20 issue, and then the second a series of memos prepared by the 21 assistant United States attorney who was put in charge of these 22 investigations. 23 24 25 Plaintiffs The New York Times and Since you are the first movant, we'll start with plaintiffs. MR. McCRAW: Thank you, your Honor. I was once SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 F4D3NYTC 1 chastised by one of your colleagues in the Eastern District for 2 beginning "This is an easy case." I'm not going to do that 3 today. 4 side of history, and we hope to convince you we are on the 5 right side of the law. This isn't an easy case. 6 We think we are on the right I would like to start with the memos and summarize 7 what we have said and address some of the things that were said 8 in the final filing by the government. 9 Really, there are two issues here. One is has the 10 Department of Justice expressly adopted the Durham memoranda 11 triggering the express adoption doctrine in FOIA; and the 12 second one, which the government raises in response, is even if 13 that were so, that the express adoption doesn't apply in a case 14 that involves attorney work product. 15 One of the things I think that is important is just to 16 understand what the express adoption doctrine is. It gets 17 confused with waiver and it gets confused with working law. 18 The Brennan Center Second Circuit decision lays out exactly 19 what is meant there. 20 position and then references the analysis done in an underlying 21 document. 22 fact when General Holder and other Department of Justice 23 employees, senior employees, reference Durham's work and his 24 memoranda and the basis of his conclusion there shouldn't be 25 prosecutions, in effect that is express adoption as the Second It is when an agency adopts a final That's a situation we believe exists here. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 That in 4 F4D3NYTC 1 Circuit held in Brennan. 2 Now, the underlying policy here I think is worth 3 remembering, then I want to get into the evidence that's really 4 the issue. 5 In Brennan, Judge Sack says: "An agency faces a 6 political or public relations calculation in deciding whether 7 to or not to reference what might otherwise be a protected 8 document. 9 part of their public strategy to make a reference to contents They make that calculation, and if they choose as 10 of underlying documents, they in effect trigger the express 11 adoption doctrine." 12 Earlier, La Raza, a case from the Second Circuit says 13 essentially the same thing, that a department can't adopt a 14 legal position while shielding from the public view the 15 analysis that yielded that position, and that's offensive to 16 FOIA, as the Second Circuit said. 17 The question is really what has the government done 18 here. 19 that's exactly what's happened. 20 Has it in fact expressly adopted? THE COURT: And our view is Let me just clarify one thing and then 21 I'll let you go back to where you were going. The government 22 points out, sort of breaks down the series of memos which is 23 now clear, and basically I think says that the only thing that 24 kind of the substantive statements by Attorney General Holder 25 and maybe others go to is I think the final two declination SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 F4D3NYTC 1 memos or a subset of the memos. 2 Do you agree we're really focused on those memos? 3 MR. McCRAW: No, I think it's broader than that. I 4 think the statements that come up at the end of the sequence of 5 events, that would be General Holder's comments in 2012, the 6 statements by DoJ at the U.N. after that point, and the 7 statement released after the release of the Senate report all 8 in effect refer back to Durham's work. And there is a variety 9 of memoranda that Mr. Durham produced. We think those -- I'll 10 get into the specifics -- we think that the statements were 11 such that under Brennan Center test, they were enough to be 12 express adoption. 13 Brennan Center is interesting. It really sets what is 14 the standard on express adoption. 15 sort through the facts because Judge Sack is distinguishing 16 working law from express adoption. 17 It is a difficult case to But the one document that's found to fall under 18 express adoption was referenced twice. 19 footnote, in a footnote in a USAID document. 20 this dealt with USAID policy about the so-called pledge 21 requirement. 22 to pledge to oppose -- 23 24 25 The first was in a You'll recall Do groups receiving aid from the government have THE COURT: There was a flip flop on whether OLC thought that applied to domestic entities. MR. McCRAW: Thank you, that's right. Does it apply SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 F4D3NYTC 1 to foreign agencies or both foreign and domestic. 2 reference in a footnote, all it said, according to the court, 3 is OLC in a draft opinion -- that's important here because 4 Mr. Durham talks about drafts -- in a draft opinion determined 5 that this provision only may be applied to foreign 6 non-government entities. 7 One The second time it was referenced was in testimony by 8 an agency, a USAID official, before Congress. The statement 9 was the OLC provided some tentative advice that the pledge 10 requirement could only be applied to foreign organizations. 11 was simply a reference to the legal conclusion, but the court 12 said even though it is tentative, even though they didn't go 13 into the reasoning, that was enough for express adoption. 14 we bring on that standard in terms of the evidence. 15 THE COURT: It Here La Raza and Brennan Center both use -- 16 you've referred to "legal decision." 17 word "authoritative" in talking about express adoption of the 18 OLC conclusion. 19 situation we have here. 20 And both of them use the I wonder if that's different from the In Brennan Center, for example, Judge Sack says, 21 "Nonetheless, where it determines there is an advantage to 22 doing so," that is, revealing publicly something that the OLC 23 said, "by referencing a protected document as authoritative, it 24 cannot then shield the authority upon which it relies for 25 disclosure." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 F4D3NYTC 1 There is something about OLC opinions, they are 2 literally authoritative within the Executive Branch because 3 they're binding legal authority. 4 OLC said this, a legally authoritative thing, isn't that 5 different from a sort of discretionary "we don't think after 6 considering all these facts that this case should be 7 prosecuted"? 8 9 10 And when an agency says, oh, I wonder isn't that not authoritative in the relevant sense? MR. McCRAW: Your Honor, as you can imagine, I argue a 11 lot of these cases. 12 government always takes the position they are not 13 authoritative. 14 that here today. 15 They deal with all these memos. The So I welcome if the government would concede The answer is, the decision to prosecute is in fact a 16 decision of government, and I think that's enough. 17 first Sears, the case that started this all. 18 with NLRB proceedings, not criminal proceedings, but again it 19 was a decision not to pursue a case. 20 21 22 I point to That was dealing I'd also point to the Niemeier case which dealt with Watergate and again a decision not to prosecute. I think that those decisions fall right in line with 23 other decisions that have looked at is this a final government 24 determination that Mr. Holder is making. 25 sufficient. That should be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 F4D3NYTC 1 I thought you were going someplace else with your 2 question. 3 brings to it all of those authoritative-like language when he 4 talks about Mr. Durham has reviewed a tremendous volume of 5 information. 6 If you look at Mr. Holder's statement from 2011, he The review was thorough. But more than that, General Holder starts to get into 7 exactly what was there. 8 No prosecution was going to be against those who acted in good 9 faith, first, and those who acted within the scope of legal 10 11 That's where it even exceeds Brennan. guidance given by OLC. Then talks about that this applies to the entirety of 12 Durham's investigation, refers to the 101 cases, not just the 13 two that were still open at that point. 14 beyond Brennan. We think that moves it That was in 2011. 15 And then in 2012, Mr. Holder says Mr. Durham 16 considered all applicable substantive criminal statutes as well 17 as the statutes of limitations, and jurisdictional positions, 18 the government prosecutions. 19 developed factual record. 20 And that this was on a fully We see there the two things that are needed for an 21 express adoption case. Reliance on the conclusion and reliance 22 on the analysis. 23 and complete. 24 wasn't this reliance. 25 Mr. Holder saying, no, I made my own decision independent of He refers to Mr. Durham's work as thorough Nowhere does the government say that there There is no affidavit here from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 F4D3NYTC 1 that. 2 Mr. Durham's investigations as captured in his now conceded 3 memoranda that become the basis for the ultimate decision. 4 To the contrary, it really was an attempt to hold up THE COURT: But is it reasoning that he's adopting as 5 opposed to sort of a kind of broad based judgment based on a 6 whole bunch of interviews and facts? 7 MR. McCRAW: I think it is. And I would point to the 8 reference to the statute of limitations, the reference to 9 jurisdictional prerequisites, the reference to good faith, and 10 the reference to reliance on OLC memoranda. 11 THE COURT: 12 MR. McCRAW: 13 THE COURT: 14 MR. McCRAW: Where are those references? Okay. Which statement is that from? In 2011. It is Exhibit J to my moving 15 declaration. 16 faith and the legal guidance. 17 OLC. 18 we hear about all substantive criminal statutes, statute of 19 limitations and jurisdiction. 20 Exhibit J is the one that talks about the good Excuse me, the legal guidance of And then Exhibit H, which is the 2012 decision, is where We then know a little bit about what was said to the 21 U.N. The U.N. obviously very concerned there weren't 22 prosecutions. 23 commission, that was David Bitkower. 24 detail what was said. 25 that this was an attempt to find the truth. A deputy attorney general appeared before a U.N. And we don't know in But again, in the same Brennan-esque way It was an attempt SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 F4D3NYTC 1 to reevaluate previous decisions that were made to make sure we 2 got it right this time. 3 analysis, but again, it seems as if the reliance on the 4 conclusion is there. 5 It does not get into the kind of So, at least under a Brennan standard where you had a 6 footnote and you had a Congressional testimony, barely 7 referencing these things, that was enough for express adoption. 8 9 I would just like to speak to the question of the attorney work product, and does it in fact, even if there were 10 express adoption, does the attorney work product still trump 11 it. The answer in our view is no. 12 Circuit -- 13 THE COURT: 14 MR. McCRAW: 15 Niemeier in the Sixth It was the Seventh Circuit, right? Yes. I think you're right. I don't think that's libelous as to the -- 16 THE COURT: I'm not positive. 17 MR. McCRAW: Right, yes, thank you. Yes. Niemeier 18 held that there was no attorney work product exception to 19 express adoption. 20 open question in Wood, and Brennan cites that language from 21 Wood again. And the Second Circuit has said it was an 22 But in our view, it is no different than the 23 attorney-client privilege, which, in both La Raza and Brennan, 24 fell to express adoption. 25 communications, are by nature going to have within them Those documents, attorney-client SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 F4D3NYTC 1 attorney work product. 2 still found that express adoption applied. 3 That didn't stop the court. The court More than that, in our view, the attorney work product 4 privilege is a lesser privilege than the attorney-client 5 privilege, because it can be overcome by substantial need, as 6 we'll talk about in a second under the 302s. 7 In this case, in those two cases, in La Raza and in 8 Brennan, attorney-client communication not held to be an 9 exception to the express adoption doctrine. That makes sense 10 in terms of policy, because essentially what the courts are 11 saying is once something becomes final, once something becomes 12 part of government action, that that's the very purpose of 13 FOIA, is to help the public understand both what the decision 14 was, what the action is, what the governing law is, but also 15 the rationale behind it. 16 THE COURT: What do you say to the government's 17 argument that attorney work product doctrine is much harder to 18 waive than attorney-client privilege, and that puts it in a 19 different category? 20 MR. McCRAW: It has very different contours, there is 21 no question about it. It reaches things that would never 22 involve communication with a client. 23 notion that it is a greater or more powerful privilege, because 24 under federal law it can be set aside by a court on a showing 25 of substantial need. But I disagree with the That's very different than the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 F4D3NYTC 1 attorney-client privilege. 2 fraud crime exception or something like that, but in the normal 3 course of litigation it will not be set aside. 4 Obviously can be set aside by the So I simply don't see it as being some higher 5 privilege that should be treated in a different way. As I 6 said, I think that, although the argument wasn't made, 7 inevitably in a client-attorney communication, attorney work 8 product will be there. 9 express adoption overcame the privilege. And both La Raza and Brennan found 10 If I might, your Honor, I'd like to move to the 302s. 11 THE COURT: 12 MR. McCRAW: Sure. And reading the briefs one would think we 13 were talking about very different things and perhaps we are, so 14 I'll try to bring some clarity to this if I might. 15 It seems to me that the issue here is, as FOIA says or 16 as the cases interpreting FOIA said, is this material that 17 would ordinarily, that would routinely and normally be 18 available in civil litigation against an agency. 19 this is attorney work product, the answer to that question is 20 the government wins. 21 product is not routinely available. 22 clear the substantial need test doesn't apply in a FOIA. If in fact I do not dispute the fact attorney work And the cases have made 23 If, on the other hand, these are factual statements 24 from witnesses, they are routinely and normally available in 25 civil litigation. And I would turn to a case we cite but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 F4D3NYTC 1 probably don't highlight enough which is the Feature case from 2 the Northern District of New York. 3 the wrong way, Feature sets out the issue here. 4 says is the response of the court to the question of whether 5 purely factual witness statements constitute work product has 6 been far from uniform. 7 this regard have attempted to differentiate between purely 8 factual statements obtained from witnesses and reports 9 embodying mental impressions, and finding the former made to be It fairly, even if it goes What Feature Some supporting plaintiffs' argument in 10 discoverable while preserving the sanctity of the latter. 11 Others have taken a more restrictive approach and have instead 12 flatly excluded access to such statements regardless of their 13 character. 14 I think that's a fair statement of where the law is. 15 That courts have in fact gone both ways on this. 16 government says the door is closed. 17 open, and I think Feature focuses on what that tension is. 18 The I think the door is still The government argues that in fact this is answered by 19 Rule 26(b)(3). I don't think so. If you read it in its 20 entirety and not just cherry pick particular provisions of it, 21 structure of it is important here. 22 broadly excluding materials created in contemplation of 23 litigation or trial. 24 carve-outs. 25 this case. 26(b)(3)(A) begins by It then immediately has two important One is for substantial need. We acknowledge, not If we were here in civil litigation it would be, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 F4D3NYTC 1 but we are in FOIA. 2 But clause one is important in 26(b)(3)(A). Materials 3 that are otherwise discoverable under rule 26(b)(1), the 4 general discovery statute. 5 Feature is talking about, is are these 302 statements like 6 (b)(3)(A), simply produced in, you know, created in the 7 contemplation of litigation, or do they fall under the 8 exception which is for Rule 26(b)(1) materials. 9 That's the tension. That's what The 26(b)(3)(C) doesn't answer that question. If you 10 recall, 26(b)(3) deals with the right of a party to get his or 11 her own statement from the other side. 12 can be done without a showing, without the required showing. 13 It does not say they're attorney work product. 14 required showing refers back to the two carve-outs. 15 Substantial need or they're factual material covered by 16 26(b)(1). 17 And it says that that And the That provision was enacted in 1970 by Congress because 18 there were all these objections being made to turning over a 19 party's own statement. 20 product, attorney-client communication, it doesn't matter what 21 it was. 22 it does not say, it does not say that those nearly verbatim, 23 essentially verbatim statements are attorney work product. 24 25 Cumulative, irrelevant, attorney work It was a special rule to stop that disadvantage. But The cases we cite come up in a variety of contexts, the government's right about that. What we're focusing on is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 F4D3NYTC 1 how the court characterizes those decisions, those documents if 2 you will. 3 the statute it comes under. 4 work product. 5 the case. 6 attorney work product. 7 Not the ultimate conclusion, not what provision of But do they treat them as attorney We cite a variety of cases where that's not been They have treated them as something other than THE COURT: Your view of sort of how to balance these 8 provisions and consider 302s in terms of work product or not, 9 wouldn't 302s essentially always be FOIAable or subject to 10 11 disclosure under FOIA? MR. McCRAW: In fairness, I think they may vary. I 12 think it probably requires a review of the particular ones. 13 am assuming that 302s at some times may cross the line. 14 think most of them, though, and there's no statements here from 15 the FBI or the agents who wrote them, so we don't know this, I 16 think most of them cleave to the disclaimer that's contained on 17 the form itself which says "This document contains neither 18 recommendations nor conclusions of the FBI." 19 some length in our brief, they're routinely turned over in the 20 course of criminal prosecution. 21 I I And as we talk at That's important because I think it buttresses the 22 idea that when people create them, when FBI agents create them, 23 they are aware that they may in fact become public. 24 therefore, there is this notice, if you will, that anything 25 that would go to strategy, conclusions, analysis, the kind of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 And 16 F4D3NYTC 1 thing that's protected under the attorney work product, should 2 not be there. 3 THE COURT: Well, they're turned over for a very 4 specific reason, the Jencks Act. 5 witness testifies, but in fact it also is provided usually the 6 week before the trial starts, as to a particular witness, prior 7 statements made to the FBI of that witness. 8 9 MR. McCRAW: Right. In theory it is after the I assume there are times that the FBI knows that a witness is never going to testify. But I 10 think in the usual scheme of events, there is always the 11 concern that at some point this person may be a witness and it 12 would be written with that in mind. 13 So, just to summarize on the 302s if I might. We go 14 back to the statement in Feature which we think in fact 15 encapsulates the law that courts have been on both sides of 16 this. 17 routinely and normally turned over. 18 conclusion that if they are deemed to be attorney work product, 19 and that's what Features turns out, unfortunately, they would 20 not fall within FOIA. 21 statements or in fact factual statements, they fall under 22 26(b)(1), and 26(b)(1) is by its very nature is routine and 23 normal. 24 25 That does not lead to the conclusion that they're not THE COURT: That leads to the If they are in fact more factual The express adoption is an argument you're making as to the memos. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 F4D3NYTC 1 MR. McCRAW: 2 THE COURT: That's right. As to the 302s you acknowledge, I think 3 correctly, that the cases are confusing in the area, and I 4 think there are some cases, including I think in the Third 5 Circuit, that essentially say the protectable part of work 6 product extends to the selection of witnesses interviewed by 7 the FBI, and therefore that alone essentially makes 302s 8 protected, because every 302, even if it is purely factual 9 statements reflected, will reflect a particular witness. 10 MR. McCRAW: Right. The argument is made that the 11 choice of what gets recorded, who the witnesses are, somehow 12 reveals strategy. 13 you're talking about investigators rather than attorneys. 14 I beg to disagree that's truly the kind of thing that's 15 protected, that what is protected is strategy and the opinions 16 and reflections. I think that's less of a concern here where And 17 It seems to me that -- I use this analogy -- is that 18 if I were preparing for a debate on Marxism and I was arguing 19 for or against it, I'll check out the same books from the 20 library as my opponent. 21 at least in the context of a criminal investigation which is 22 being billed as thorough, I don't think that that sort of 23 selectivity is likely to be an issue which is going to trigger 24 a disclosure of a strategy or mental impressions of the 25 attorney. I'll want to know the whole case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 So 18 F4D3NYTC 1 2 With that, your Honor, I'll sit down unless you have further questions. 3 THE COURT: 4 MR. McCRAW: 5 THE COURT: 6 MS. VARGAS: 7 THE COURT: 8 MS. VARGAS: 9 Thank you. Thank you. Ms. Vargas. Good morning, your Honor. Good morning. I'd like to start where Mr. McCraw ended which was with the FBI FD-302s and whether or not they 10 constitute work product. 11 acknowledges, if they are work product, then they are exempt 12 from disclosure under FOIA. 13 case law that factual materials, including witness statements, 14 are core work product and therefore not subject to disclosure. 15 As counsel for The Times And there is no question under the Plaintiffs are essentially suggesting that all species 16 of factual material that are generated in the course of 17 preparing for a litigation, and that includes under case law, 18 including Second Circuit case law, audio recordings, video 19 recordings, photographs, as your Honor just acknowledged, the 20 Third Circuit has held that witness identity, all constitute 21 fact work product because they're all factual material 22 generated in the course of an investigation and in anticipation 23 of litigation and therefore meet the Rule 26 standard. 24 that verbatim witness statements somehow fall in a special 25 category that is exempt from work product protection. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 But That's 19 F4D3NYTC 1 plainly not the law. 2 There is much case law out there that examines whether 3 or not witness statements, including verbatim witness 4 statements, are discoverable, as Mr. McCraw just acknowledges. 5 But most of those cases are not focused on whether they 6 constitute work product in the first instance. 7 years, the focus of case law, including circuit case law, has 8 been on whether those witness statements are fact work product 9 and therefore discoverable upon a showing of substantial need, In the last 10 10 or actually rise to the level of core opinion work product, 11 which is almost never disclosable. 12 debate as to whether it constitutes work product in the first 13 instance. 14 work product it is. 15 important. 16 or opinion, is equally protected under FOIA and therefore not 17 subject to disclosure. 18 There is not a lot of But there is a lot of debate as to what species of For FOIA purposes, however, it is not Because every species of work product, whether fact THE COURT: Is it the government's position that any 19 time the phrase "work product" applies in civil litigation, 20 that they're essentially categorically exempt for purposes of 21 FOIA? 22 MS. VARGAS: That's what the Supreme Court said in the 23 Grolier decision. They were confronted with exactly that 24 issue, which is, in a FOIA case does a court have to wrestle 25 with the qualified nature of certain discovery privileges SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 F4D3NYTC 1 including in that case the work product privilege. Is the fact 2 that a particular document might be disclosable in a particular 3 case because of a showing of substantial need, or, for example, 4 under 26(b)(3)(A) as the witness's own statement, does that 5 render such a document routinely and normally disclosable in 6 civil litigation. 7 Grolier said that's an unworkable standard. 8 have courts sit through every possible litigation, could there 9 be a substantial need for this document in a particular case. 10 A workable standard is work product, fact, opinion, 11 categorically exempt from disclosure. 12 it reached. We can't That was the conclusion 13 I think that the conclusion is buttressed here where 14 we are talking about the FD-302s in which there are hundreds, 15 and counsel for The New York Times suggested that maybe the 16 courts would have to look at each one and they can determine 17 whether this was an actual verbatim witness statement or a 18 summary of the witness's own statement. 19 of course we dispute these are actually verbatim witness 20 statements, the factual predicate upon which this entire 21 argument is based. 22 This is something that But our legal point is the court doesn't have to get 23 into a document-by-document look at these particular FD-302s 24 and what would that standard look like. 25 four hours, but I only wrote one page of notes, I didn't "The interview was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 F4D3NYTC 1 transcribe every word." 2 3 THE COURT: Do you know if there are cases where under FOIA the government has been required to produce 302s? 4 MS. VARGAS: 5 THE COURT: 6 MS. VARGAS: Your Honor -Portions of 302s? We have found no case where the 7 government asserted work product over 302s and they were 8 ordered disclosed. 9 product. Not every 302 will be protected by work And the reason for that is because not every FBI 10 investigation is going to be done in conjunction with and under 11 the auspices of a government prosecutor. 12 In this particular case, the attorney general in a 13 public statement actually stated that the FBI would be acting 14 under the direction of Mr. Durham, the United States Attorney 15 for the Eastern District of Virginia, in that particular 16 matter, and therefore the work they did for him at the 17 direction of the prosecution team and in conjunction with those 18 attorneys plainly falls within the work product doctrine as 19 counsel for The Times conceded in their papers. 20 certainly not suggesting that every FD-302 is going to fall 21 within that category. 22 the circumstances of a particular investigation. 23 We are Whether or not it does will depend on FBI agents often talk to witnesses without there being 24 any government prosecution involvement, and we are not 25 suggesting that simply because at some much later point in time SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 F4D3NYTC 1 there might be a criminal prosecution, that just automatically 2 elevates every FD-302 to the level of work product. 3 But we are asserting that in this particular case, 4 where FBI agents were working under the direction of attorneys, 5 where attorneys were selecting the witnesses, going to the 6 interviews, questioning the witnesses, and as Mr. Durham 7 states, even editing the 302s, there is the level of counsel 8 involvement in these 302s that rise to the level of work 9 product. 10 THE COURT: Presumably some of these 302s have work 11 product in them. 12 witness who is an obvious person to be interviewed in 13 connection with this investigation? 14 the theory that that reveals sort of the selection of witnesses 15 of Mr. Durham? 16 But what about a verbatim quote by a fact MS. VARGAS: Is even that protected on Your Honor, it is most certainly 17 protected under a number of theories. 18 identity of the witnesses, as the Third Circuit has held. 19 Secondly, as the Second Circuit, which has a very broad 20 standard for fact work product has held, any material that is 21 generated in anticipation of litigation constitutes fact work 22 product. 23 First of all, the I point the Court's attention to the In Re Grand Jury 24 Subpoena case which was audio recordings. So it is not just a 25 quote, it was an actual audio recording in which the attorney SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 F4D3NYTC 1 wasn't even present. 2 conversations he had with a broker because there was some 3 suspected criminality, and he wanted to preserve the nature of 4 those conversations. 5 conversations. 6 fact work product, and whether they were opinion work product 7 was actually the issue there. 8 product. 9 conversation between two people could be fact work product when 10 done in anticipation of litigation meets the fact work product, 11 but attorney-directed interviews of witnesses somehow would not 12 rise to the level, doesn't comport with the cases. 13 The attorney directed his client to tape He directed his client to audiotape those The Second Circuit held those audiotapes were But certainly it was fact work So the notion that an audio recording of a Even a verbatim quote can constitute opinion work 14 product, we would say. The Court doesn't need to reach that 15 issue here. 16 decision, the reason that there is a sacrosanct nature to 17 attorney interview notes, and most of the Supreme Court's 18 jurisprudence on work product is generated out of attorney 19 interview notes, the reason it rises to such a high level, it 20 is not simply the selection of what to write down that makes it 21 attorney work product. 22 focus of your questions. 23 hypothesize, if an attorney was to focus on a very important 24 issue with a particular witness and not ask about three or four 25 other issues that could arise, you would get a glimpse into the But as the Supreme Court observed in the Upjohn It is the questions that you ask, the If you, for example, just to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 F4D3NYTC 1 mind of the attorney, whether it was verbatim or not. 2 defenses is he looking at, what credibility issues is he 3 assessing. 4 whether verbatim or whether it is a mere summary of the 5 interview notes. 6 has not been on is it fact work product. 7 is. 8 and how they hone in on particular issues, doesn't that rise to 9 the higher level of opinion work product. 10 What All of that comes out from a witness interview, That is why the focus of the court decisions They all assume it It is really, given the nature of how attorneys question THE COURT: The reason it is relevant is because there 11 is an exception if it is fact work product, but not if it is 12 opinion work product. 13 MS. VARGAS: In civil litigation, not under FOIA. 14 Fact work product could be discoverable. 15 Mr. McCraw just read from the Northern District of New York 16 case, there is this issue. 17 showing of substantial need. 18 product is a qualified privilege, while opinion work product is 19 absolutely privileged. 20 circumstances. 21 discoverable. 22 They don't say is it privileged or not. 23 whether it is fact work product versus opinion work product. 24 That is very relevant in civil litigation. 25 And as the quote that It could be discoverable upon a Because under the rule, fact work You can't get it under any So, they often debate whether it is They use those words, is it discoverable or not. They'll talk about Just to address one final point on this issue before I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 F4D3NYTC 1 move on. 2 We think that rule actually establishes conclusively the point 3 we're making which is there is no special rule for verbatim 4 witness statements. 5 establishes the opposite. 6 party or other person may, on request, and without the required 7 showing, obtain the person's own previous statement about the 8 action or the subject matter. 9 rule that you have to show substantial need to get fact work 10 11 Mr. McCraw made a lot of references to Rule 26(b)(3). In fact, that rule conclusively Because 26(b)(3)(C) says that any It creates an exception to the product for a witness's own verbatim statement. Notice what it doesn't do. It could have simply said 12 all verbatim statements have to be produced, but it doesn't. 13 The reason it only carves out a subset is because, generally 14 speaking, verbatim witness statements are not discoverable 15 except with a showing of substantial need. 16 out the exception for the party's own statement when they 17 request it. 18 work product privilege as fact work product, 26(b)(3)(C) would 19 be entirely superfluous. 20 showing because they would be subject to the normal discovery 21 rules under FOIA. 22 If verbatim statements were not protected by the There would be no substantial need Unless your Honor has any further questions on the 302 23 issues, I'd like to turn -- 24 THE COURT: 25 They had to carve Why don't you turn to the memos. And just so I can frame the issue, I gather you're arguing that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 F4D3NYTC 1 deliberative process applies to two of the memos, which is the 2 declination memos, and that attorney work product applies to 3 all of the memos. 4 5 MS. VARGAS: That's true. It is not the declination memos. 6 THE COURT: 7 MS. VARGAS: 8 THE COURT: 9 MS. VARGAS: Sorry. It would be the recommendation memos. Those two. So there's actually, yes, two documents 10 that constitute deliberative process which are the two 11 recommendations memos, and all of the memos are protected by 12 work product. 13 THE COURT: Right. So the question is going to be, I 14 know you have an argument that the adoption theory doesn't 15 apply at all to attorney work product. 16 MS. VARGAS: 17 THE COURT: Yes, your Honor. Although the Second Circuit has said it 18 does apply to attorney-client privilege, and it is not the 19 easiest thing to distinguish attorney-client privilege from 20 attorney work product in terms of the rationale for applying 21 the adoption theory. 22 MS. VARGAS: Your Honor, I think there is a basis for 23 distinguishing it. First of all, the Second Circuit has 24 affirmatively reserved on this issue in Wood. It noted there 25 was an issue, it said we're not resolving it. It is an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 F4D3NYTC 1 unresolved issue. 2 3 THE COURT: Are there District Court opinions that have decided it in the Second Circuit? 4 MS. VARGAS: Not in this circuit. There are cases 5 going both ways in the D.C. Circuit. I think both sides cited 6 to them. 7 squarely confronted this issue. 8 Circuit in Rockwell which we cite, which looked at work product 9 under a waiver analysis. But I am not aware of any circuit court to have The closest is the D.C. That was pretty similar, but did not 10 use the term "express adoption." 11 at attorney-client and work product differently, you have to 12 step back and go a little bit to the origins of express 13 adoption. 14 the NLRB decision, the notion of express adoption was applied 15 to deliberative process. 16 process documents -- the two prongs for making a document 17 subject to deliberative process are that it is predecisional 18 and it is deliberative. 19 is. 20 robustness of internal government debate. 21 I think the basis for looking As articulated originally by the Supreme Court in The two reasons why deliberative That's what the core of the privilege It protects those types of documents to protect the The Supreme Court observed that when you adopt 22 something as final agency policy, it is no longer predecisional 23 or deliberative. 24 for applying the privilege to that document fell away. 25 It is now the policy. So the whole rationale As it applies to deliberative process, express SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 F4D3NYTC 1 adoption is fairly clear. 2 attorney-client, the Second Circuit actually articulated a 3 separate rationale from the one that was articulated by the 4 Supreme Court in NLRB. 5 final is not so much determinative in the attorney-client 6 context as it is in the deliberative process, because there can 7 be final advice, it can be final work product. 8 necessarily take it out of the privilege context. 9 When it gets imported over to Recognizing the fact that something is That doesn't So the Second Circuit in Brennan Center, a little bit 10 of La Raza but mostly in Brennan Center, articulates this 11 rationale that is a waiver rationale that says when the 12 government holds up a document as authoritative and makes the 13 choice to reference the document as the policy of the agency, 14 it is essentially taking an action that is akin to what a 15 litigant would do in raising a defense of relying upon 16 attorney-client confidences, and it waives privilege because 17 you can't hold it up. 18 THE COURT: 19 essentially at issue waiver. 20 you can't use it as a sword and a shield. 21 MS. VARGAS: It is at issue waiver. The rationale is Putting something at issue and Absolutely. That's a very core notion in 22 attorney-client privilege. 23 two separate rationales, one for deliberative process, one for 24 attorney client. 25 That's the rationale. There are When you get to work product, neither of those SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 F4D3NYTC 1 rationales map on to work product because, as we say, there is 2 no at issue waiver for core opinion work product. 3 said that work product is a lesser privilege because it can be 4 overcome upon a showing of substantial need. 5 fact work product. 6 product. 7 showing of substantial need. 8 is almost -- it is considered to be absolute. 9 waiver context where it is affirmatively waived, the waiver is Mr. McCraw That's true for It is not true for core opinion work Core opinion work product is not disclosable upon a As the cases we cite say, there Even in the 10 considered to be very limited. 11 waiver. 12 thereby destroy the entire privilege. 13 than attorney-client privilege. 14 Rockwell comes in, which is a waiver case under the work 15 product doctrine. 16 what we're talking about here. 17 You don't have a subject matter By holding up a piece of work product, you don't It is very different That's where the mapping on to It is actually factually very similar to In the Rockwell case, there was also a DoJ reported 18 issue. It was a DoJ report responding to criticisms of a 19 prosecution that the government had brought. 20 published this report, and had in the course of the report 21 published certain work product memorandum generated by the line 22 attorneys who had worked on the prosecution. 23 was, by quoting those documents, had the government put them at 24 issue such that they had waived the privilege, waived the 25 privilege of work product over those underlying documents. And the DoJ had And the question SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 And 30 F4D3NYTC 1 the argument was essentially the same as the one being made 2 here. 3 them in an authoritative way, held them up to public scrutiny, 4 and therefore it had evidenced an intent to waive the 5 privilege. 6 said in the work product context, selective quotation does not 7 destroy the overall work product privilege. 8 opinion work product is so fundamental, that even the 9 government's action of holding forward a small portion of it 10 That the government used those documents, referred to And the D.C. Circuit rejected that argument and doesn't vitiate the entirety of the privilege. 11 Here we don't have selective quotations from the 12 document. 13 I'll get into in a moment. 14 Because core We don't have even references to the documents as THE COURT: In a way it is the opposite of selective 15 quotation here. 16 breadth and even describing sort of the breadth of the 17 investigation reflected in the reports. 18 In a way, it is the government relying on the MS. VARGAS: I would not say that the investigation is 19 reflected in the report. I think that's somewhat how we argue 20 at cross purposes with The New York Times. 21 is the investigation. 22 agents do, the evidence they review, the witnesses they 23 interview. 24 declaration, these are attorney assessments of law, 25 credibility, sufficiency of the evidence, statute of The investigation That is the work that prosecutors and The report is, as Mr. Durham described it in his SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 F4D3NYTC 1 limitations, the possible defenses. That's not the 2 investigation. 3 I can describe my investigation to you and I can say "I 4 interviewed 80 witnesses over the course of six months, and we 5 looked at these documents," but that wouldn't tell you what 6 would be in my legal memorandum assessing the legal strengths 7 and weaknesses of my case. 8 distinguished, because I could tell you the entirety of my 9 investigation in great detail before I even come to a decision They have to be distinguished from one another. The two are separate and have to be 10 about whether or not I am going to prosecute a case or not 11 prosecute a case, before I've even written this memorandum. 12 And in fact, that's the case here. 13 that The Times relies upon to show express adoption predate the 14 writing of the memorandum that supposedly were expressly 15 adopted, which makes absolutely no sense under the case law. 16 How can one adopt a conclusion or a rationale that hasn't been 17 reached at the time. 18 that they are relying upon actually don't describe the 19 documents. 20 A lot of public statements Which shows that the types of statements They describe the investigation. I think it is useful to go through the different types 21 of documents and talk about the different statements, because 22 plaintiffs try to conflate them all, and all the statements 23 together to create this sense that there have been a lot of 24 statements about the documents. 25 the documents in question, and then parses out what statements But when one actually looks at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 F4D3NYTC 1 have been made about them, one finds that's not actually the 2 case. 3 For example, the obstruction memorandum, and let's 4 start with those. There have been no public references to the 5 obstruction memorandum obliquely in any way. 6 the history of that. 7 Mr. Durham prepared the tape destruction report, his team was 8 investigating whether in the course of the tape destruction 9 investigation, any witnesses had committed chargeable instances Let me talk about In November 2010, at the time that 10 of false statements or grand jury perjury. 11 Justice never announced that investigation was going on, it 12 never announced when that investigation concluded, it never 13 announced anything at all about that investigation. 14 THE COURT: The Department of I think it's a fair point as to the tape 15 destruction memos and the obstruction following on that. I 16 wonder if it might be different as to the interim memos 17 relating to doing a full investigation as to the two 18 individuals, because the conclusions about not doing such an 19 investigation as to all the other 99 or whatever it is sort of 20 I assume arguably raised the same set of issues as the final 21 recommendation memos. 22 evidence as to these people based on even the preliminary 23 investigation such that they should be charged, because it 24 would be too hard to get a jury to convict beyond a reasonable 25 doubt. i.e., I think there is not enough SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 F4D3NYTC 1 MS. VARGAS: So, talking about the preliminary review 2 reports and the recommendation memos specifically, what the 3 attorney general said in adopting those recommendations to 4 pursue charges against two but not to pursue charge against the 5 others is very similar to what was said in Wood and found to be 6 insufficient to demonstrate express adoption. 7 This was the attorney general's relevant statement on 8 this. He said in his June 2011 statement, he said, "Mr. Durham 9 has advised me of the results of his investigation, and I have 10 accepted his recommendation to conduct a full criminal 11 investigation regarding the death and custody of two 12 individuals. 13 criminal investigation of the remaining matters is not 14 warranted." 15 mention "and he issued reports and I looked at them and I found 16 them authoritative in any way." 17 his recommendation." 18 19 20 The department has determined that an expanded It doesn't talk about personal reports, it doesn't THE COURT: It simply says "I've accepted I think the words "advised me" and "his recommendation" as a practical matter referred to reports. MS. VARGAS: I think that's potentially true, although 21 not clear, because as it is stated in Mr. Durham's declaration, 22 he also gave oral briefings on these same issues to the 23 attorney general. 24 he's referring to the memorandum and not the totality of 25 recommendations that he received from Mr. Durham, both orally But assuming for the sake of argument that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 F4D3NYTC 1 and in written form, under the Wood decision, under Brennan 2 Center, under La Raza, these words are not sufficient to 3 demonstrate that the underlying rationale as well as the 4 conclusions of those recommendations have been adopted. 5 much more like the Wood case where the only statement was, with 6 a similar recommendation memo, "declined," and they said simply 7 accepting or declining, a yes or a no on a recommendation is 8 never sufficient. 9 proposition, including Brennan Center. 10 It is There are many cases that stand for that That's what the attorney general said here. 11 accepted his recommendation." 12 does talk about the thoroughness of the investigation, but when 13 it came to the recommendation itself, again, that was the only 14 statement made about the recommendation. 15 16 17 THE COURT: That's a yes or a no. "I Now, he Did that statement use the words "detailed factual record" or is that the later statement? MS. VARGAS: This is where he says they reviewed a 18 tremendous volume of information pertaining to the detainees, 19 including both information and matters that have never 20 previously been examined by the department. 21 THE COURT: 22 MS. VARGAS: That's the later statement, right? This is the same statement, the 2011. 23 this is in connection with this. 24 tremendous volume of information. 25 his investigation, and the matters which he looked at. So It does say he reviewed a It talks about the scope of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 He says 35 F4D3NYTC 1 he looked at various sources and outlined the sources that were 2 considered. 3 This is all about the investigation that was done, not 4 the conclusion. And the documents, as Mr. Durham explains 5 them, talk about could we bring legal charges, here is the 6 sufficiency of the evidence, here's what statute of limitations 7 issues might arise, here's witness credibility issues, here is 8 the possible defenses that could be raised in a particular 9 prosecution, here is why we shouldn't go forward with 99 10 different prosecutions. 11 obliquely mentioned in here. 12 all, about why Mr. Durham declined prosecution in any of these 13 matters. 14 pursuing further investigations with respect to the two 15 individuals that he did identify. 16 that reasoning was or evidence from which one can conclude that 17 the attorney general adopted the underlying reasoning. 18 fatal to the adoption claim as it pertains to these memorandum. 19 Nothing about that rationale is even It doesn't talk about that at It also doesn't talk about why he recommended THE COURT: There is nothing about what That is Why don't we talk about what may be the 20 strongest case for adoption, and I am going to ask you to 21 assume that the attorney work product is subject to an adoption 22 theory exception under the exemption. 23 disclosable if that applied. 24 25 And it would possibly be So I'm wondering in the last statement where he does talk about the detailed factual record, and statements where he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 F4D3NYTC 1 talks about issues like statute of limitations and the other 2 issues that Mr. McCraw pointed out, why would that not be 3 enough to essentially adopt, not only the -- I guess I don't 4 know if it is the declination memo or the recommendation memos, 5 not only the recommendations but the rationale of those memos. 6 MS. VARGAS: The declination memos. First of all, 7 these documents aren't the declination memos in particular, and 8 we are assuming work product is subject to express adoption. 9 think that part of answering your question demonstrates how 10 difficult it is to apply express adoption to a work product 11 document, because these are final documents. 12 to the contrary. 13 were recommendations to the attorney general that he accepted 14 or didn't accept. 15 were anything other than final documents. 16 were final decisions by a prosecutor not to pursue further 17 criminal prosecution in those matters. 18 19 20 I We're not arguing Unlike the recommendation memorandum, which We are not arguing the declination memos THE COURT: They were. They But the attorney general could have disagreed, no? MS. VARGAS: Theoretically, yes, absolutely. We 21 haven't asserted deliberative process over those. Because in 22 the general course, U.S. attorneys do have the authority to 23 decline prosecution without seeking the approval of the 24 attorney general in any case. 25 of department. The attorney general is the head He could theoretically do that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 F4D3NYTC 1 THE COURT: In the usual case that happens, and it is 2 not subject to FOIA because it's attorney work product. The 3 only question here is, given that this is the unusual case 4 where the attorney general went on to explain to the world why 5 he agreed with that declination memo and the recommendations in 6 it, and further described the breadth of the investigation and 7 the detailed public record, why aren't we in the world of La 8 Raza and Brennan Center where the rationale, again, assuming 9 that the exception could apply, why aren't we in the world 10 where he has essentially given up the shield of the attorney 11 work product? 12 MS. VARGAS: Because we dispute that characterization 13 of what the attorney general did in this particular case. 14 don't believe he held up the declination memo in the sense that 15 Brennan Center refers to. 16 the second Brennan Center scenario. 17 Center, there were two sets of documents. 18 one-page memoranda which the court had found had been adopted. 19 There were two other OLC memorandum, much more detailed, I 20 think 30, 40 pages long each, that were not held to be adopted. 21 Even though there had been references to advice from DoJ 22 generally, Brennan Center said the department never 23 specifically held up the documents. 24 reference to these documents and held them up as authoritative. 25 We In fact, we think this falls into And we're calling Brennan There was the They never made a specific Similarly, the attorney general here did not hold up SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 F4D3NYTC 1 the declination memorandum as authoritative in any way. He 2 never referred to them. 3 the department. 4 Justice announces its decisions publicly, that all the 5 underlying documents, whether referenced or not, whether held 6 up as authoritative or not, simply announcing the decision to 7 the world, then brings all the underlying privileged documents 8 and renders them subject to FOIA. 9 what La Raza held. He simply announced the decision of It can't be that every time the Department of That's exactly contrary to La Raza said there has been to be a 10 conscious decision to take a document and make an explicit 11 reference to the document. 12 is so important in La Raza and it is so central to Wood and 13 Brennan Center. 14 is announcing its decision and justifying the decision. 15 it is not justifying that decision based upon a document, it 16 hasn't waived the privilege vis-a-vis that document. 17 make the public relations choice, to use the phrase that was 18 employed in Brennan Center, to hold up the document. 19 consciously do something with the document to waive the 20 privilege. 21 decision announced by the department. 22 That's why the explicit reference Because otherwise, all the government is doing But if It has to It has to Because there are documents always underlying every THE COURT: But here, in referring to a detailed 23 factual record, isn't that referring to a document or set of 24 documents in saying what he said? 25 just announcing decision? Isn't he doing more than Isn't he explaining the decision? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 F4D3NYTC 1 MS. VARGAS: He's saying based on the fully developed 2 factual record concerning the two deaths, the department has 3 declined prosecution because the admissible evidence would not 4 be sufficient to obtain and sustain a conviction beyond a 5 reasonable doubt. 6 I don't think the fully developed factual record says 7 anything about the reasoning or conclusions of the actual 8 declination memorandum. 9 department was making its decisions based upon fully factual Certainly we would hope that the 10 records in any case in which it was looking at this high level. 11 But it doesn't thereby bring into the public view hundreds of 12 pages of legal analysis about witness credibility, and all the 13 other legal issues that were considered, by simply saying we 14 looked at a fully developed factual record. 15 if Mr. Durham had written a memorandum or not. 16 written a memorandum, we still would have had a fully developed 17 factual record on the basis of his investigation. 18 That would be true If he had never This goes back to the difference between the 19 investigation and the documents. The reason there has to be 20 something that the government consciously does to bring a 21 document to public light. 22 standard -- and that's why La Raza focuses on this so much -- 23 if that is not the standard, every time the government says we 24 have made this decision, we've considered it carefully, we've 25 looked at all the options, and we said this is the policy Because if that's not the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 F4D3NYTC 1 decision we've reached. 2 affirmatory statement in support of its policies, presumably it 3 will never say we didn't give it much thought but we decided to 4 adopt it anyway. 5 underlying that decision is thereby unprivileged. 6 7 If they do that, it can't be every document THE COURT: I understand that's your argument about the reference to "fully developed factual record." 8 9 Any time it makes that broad What about the specific reason given for the non-prosecution decision, which is a specific conclusion that 10 there wasn't enough evidence to get a conviction beyond a 11 reasonable doubt as to these two individuals? 12 that's sort of the boilerplate reason not to prosecute 13 somebody. 14 There are resource reasons, there are reasons having to do with 15 disclosure of government secrets. 16 reason that he chose to give. 17 You can argue There are other reasons you might not prosecute. And that's a particular If that's one of three reasons in the memo, shouldn't 18 that portion of the memo be disclosed on the theory that is a 19 specific explanation, and therefore an adoption of a particular 20 reasoning in the memo? 21 MS. VARGAS: First of all, as your Honor does 22 acknowledge, it is boilerplate because it's a phrase that's 23 quoted directly from the U.S. attorney manual. 24 standard for prosecution. 25 THE COURT: That's the It is not the only reason to decline. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 F4D3NYTC 1 MS. VARGAS: It is not the only reason. There could 2 be resource issues, there could be policy issues. 3 based on the admissible evidence being insufficient. 4 Here it was But that said, this would then fall in the category of 5 Brennan Center and La Raza that adopted at most a conclusion. 6 It certainly doesn't talk about the reasoning. 7 assuming -- and we don't even know if Mr. Durham's 8 recommendation was to decline prosecution based on -- it 9 doesn't say that. You said This is what you get into when you don't 10 have a specific reference to the document. 11 Mr. Durham has concluded in a report that there is insufficient 12 evidence to obtain a conviction. 13 THE COURT: 14 MS. VARGAS: It doesn't say It certainly implies. But it doesn't specifically state. 15 That's the point. 16 and say "This is the document, it tells us there wasn't 17 evidence to prosecute, and everything you need to know is in 18 this document." 19 The government didn't hold this document up That's the La Raza situation. THE COURT: But in La Raza and Brennan Center, at 20 least in Brennan Center, you're talking about OLC, it is even 21 tentative advice in that situation. 22 up this one page memo in three paragraphs sort of said this qua 23 document is driving our decision here. 24 told us X. 25 conclusions that happened to be reflected in the memo. It is not like they held Rather, they said OLC Where "X" is just a set of legal reasoning and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 F4D3NYTC 1 How is that different from the situation here where 2 it's a set of sort of factual and legal conclusions that were 3 reflected in a memo? 4 MS. VARGAS: I think the difference is two fold, which 5 is Brennan Center didn't say OLC told us X. If they had said 6 that, and in fact, that is the scenario in Brennan Center that 7 they found wasn't sufficient to justify an express adoption. 8 There were two sets of memos. 9 memorandum where someone in HHS said "and we are following that There was the one-page 10 advice." That was the key phrase. 11 advice." That was the express adoption evidence there. 12 "We're following that There was a second Brennan Center memorandum where 13 they just said consistent with guidance from the U.S. 14 Department of Justice, we are doing X. 15 with guidance from the United States Department of Justice" was 16 found insufficient to show express adoption. 17 Circuit said there wasn't specific reference to the memorandum 18 in that statement. 19 they have adopted the conclusions and the reasoning. 20 specifically Brennan Center says they're following the 21 recommendation, but where does it show from "consistent with 22 the guidance" that they've adopted the underlying reasoning. 23 That wasn't enough. 24 25 And that "consistent The Second And "consistent with" doesn't show that And So it was a distinction that they drew there between following the advice, and consistent with we have adopted a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 F4D3NYTC 1 2 course. Here there is nothing of that nature here because, as 3 we've just discussed, the statement in question was more that 4 the department has decided to do X. 5 Mr. Durham's report two declination memorandum in any way. 6 certainly just as in Brennan Center, that statement that is at 7 most a reference to the conclusions potentially of the report, 8 because we don't know that the report actually concluded that 9 again because there was no specific reference to the report. 10 Assuming that the report concluded it, there is no evidence 11 that the attorney general thereby adopted all the reasons set 12 forth in the memorandum. 13 is so key to the case law, and what is so lacking in this 14 particular case. 15 THE COURT: It doesn't refer to But That's exactly why specific reference Let me ask you one other question. If I 16 held that what happened here met the requirements of express 17 adoption with respect to the conclusion that there wasn't 18 enough evidence, and that was a sufficient express adoption of 19 the set of declination memos specifically as to there wasn't 20 enough evidence to bring prosecutions and to obtain convictions 21 beyond a reasonable doubt, would that in your view result in 22 release of the entire declination memos or subsets? 23 MS. VARGAS: Your Honor, let me preface that by 24 saying, first, as your Honor is aware, there is a stipulation 25 between the parties that we're litigating Exemption 5 first. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 44 F4D3NYTC 1 There will be other exemptions that will apply, both because 2 the documents are classified, and contain grand jury 3 information as well. 4 exemptions. 5 I think there may also be some additional Leaving aside other exemptions, if the question was 6 focused under Exemption 5, would that result in the release of 7 the entire declination memorandum, I can't answer that question 8 because one would have to go through and see how much of the 9 memorandum I guess would have pertained to that conclusion. 10 That's exactly why the Second Circuit case law doesn't parse 11 out conclusions from rationale. 12 because otherwise one would have to go through the exercise of 13 looking through a memorandum and saying what are the rationales 14 in here that could support that conclusion, and were they 15 adopted as well. 16 forth. 17 of the rationales, competing rationales. 18 19 20 You have to adopt both, What if there were three rationales put Did the attorney general adopt all the rationales, some THE COURT: Would I have do an in camera review in that situation? MS. VARGAS: It is hard for me to hypothesize what 21 we'd have to do in a particular situation. I guess it would 22 depend upon the Court's ruling. 23 depending upon the scope of the ruling, but I don't think the 24 case law calls for that precisely because it would be an almost 25 impossible standard to apply to a particular document as to I can potentially say that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 45 F4D3NYTC 1 what reasoning supported a conclusion and which portions could 2 thereby be released and not released. 3 THE COURT: 4 MS. VARGAS: 5 THE COURT: 6 Thank you. Thank you. If there is anything you'd like to reply to, you don't need to. 7 MR. McCRAW: I'll keep it very short, your Honor. I'd 8 like to talk very briefly about the 302s and just tick up off a 9 couple items. One, that section from Feature I was reading was 10 not about substantial need. 11 substantial need. 12 attorney-client privilege. The court goes on to discuss It was about witness statements are 13 THE COURT: 14 MR. McCRAW: Second -- That's Northern District. Yes. N.D.N.Y. Counsel talked about the 15 difficulty of review. 16 just spent more than a year with the Second Circuit on the 17 targeted killing memos. 18 review. 19 Always the problem in a FOIA case. We The Second Circuit found a way to Finally, the government says that Grolier decided that 20 the attorney work product has categorical application in FOIA 21 cases. 22 not. 23 not, and therefore whether the privilege applied. 24 25 That case does not deal with whether it was factual or It dealt with whether related litigation was present or But I'd like to move to the memos. And more specifically to this idea of whether the attorney work product SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 46 F4D3NYTC 1 trumps express adoption. The first thing I would point out is 2 Rockwell has no bearing on this case. 3 first decides that it is merely a report, not government 4 action, so it doesn't even fall under Sears. That's in the 5 decision. They were simply 6 writing a report which had no action attached it. 7 get to express adoption unless you're talking about 8 governmental action, not a report which was just an internal 9 review. In Rockwell, the court 10 It says this is not a Sears case. You don't Second, the theory of waiver falls apart here. The 11 government says in its brief on page eight waiver and adoption 12 are distinct concepts. 13 sides use "waiver" informally. 14 is two things. 15 that, in trying to decide whether express adoption trumps or 16 doesn't trump that you go to waiver principles. 17 waiver cases. 18 Brennan Center, footnote five, says this case is no different 19 than any other Exemption 5 case, and that is the burden rests 20 with the government. 21 waiver as you would in a classic waiver type case, and all the 22 circumstances that you can imagine in coming up. 23 fact express adoption. 24 The government has turned it into something else: 25 decision. That is so true. Even though both And the reason it is important One is it completely undercuts the argument These aren't Second is it goes to the burden of proof. We do not have the burden of showing This is in The document is no longer Exemption 5. A final And that's important because the burden is on the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 47 F4D3NYTC 1 2 government throughout this case. If there is no proof that Mr. Holder says "I adopted 3 the conclusion," shame on them. That was something that they 4 could have done and did not do. I think it is clear from the 5 statements. 6 Finally, and I think we've made our case here from the 7 statements. We understand that this is not a principle that 8 will apply every time the government declines a prosecution. 9 This is a very special case. This is the only case I am aware 10 of where they go to the U.N. to try to sell the international 11 community on what's happened here. 12 far beyond what usually happens even in high profile cases. 13 The New York Times wishes they issued statements like this 14 every time they decided not to prosecute. 15 The document requirement is really an overstatement by the 16 government here. 17 a realization that FOIA applies to documents, not to the 18 information. 19 you thought." 20 Mr. Holder's statement goes That doesn't happen. The document requirement is nothing more than You can't come in and say "I want to know what It simply anchors it. Here there is no dispute over the documents. They 21 identify the documents. They say these are the documents. And 22 I would again turn back to Brennan. 23 evidence where they found express adoption is a statement that 24 says "OLC provided some tentative advice." 25 some tentative advice." One of the two pieces of Advice. "Provided They didn't say "here's the memo and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 48 F4D3NYTC 1 we're following the memo." They said "provided advice." 2 me, what Mr. Holder has done exceeds that by far. 3 Thank you, your Honor. 4 THE COURT: Thank you very much. To The case is 5 submitted. I just want to say I appreciate the excellent 6 briefing on both sides and the arguments. 7 all my cases did such a great job with the briefing and the 8 arguments. And decision is reserved. I wish counsel in Thank you very much. 9 MR. McCRAW: Thank you. 10 MS. VARGAS: Thank you, your Honor. 11 o0o 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300