Case 1:19-cv-08215-LGS Document 42 Filed 09/03/20 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ) ) ) Plaintiff, ) ) v. ) ) U.S. DEPARTMENT OF JUSTICE, ) ) and ) ) FEDERAL BUREAU OF INVESTIGATION, ) ) Defendants. ) ) AMERICAN OVERSIGHT, Case No. 19-cv-8215 REPLY IN SUPPORT OF PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Case 1:19-cv-08215-LGS Document 42 Filed 09/03/20 Page 2 of 16 TABLE OF CONTENTS INTRODUCTION .........................................................................Error! Bookmark not defined. I. II. The Interview Records Are Not Protected by Exemption 5 ................................... 1 a. The Interview Records Cannot Logically Qualify for Work Product Protection Because They Were Created to be Disclosed to Litigation Adversaries ..................................................................................................... 1 b. Defendant DOJ’s Assertion that Any Work Product Protection Has Not Been Waived for FBI 302s Factually Memorializing Interviews with Potential Adversaries Is Not Supported by Law or Logic. ............................................ 4 c. The 22 FBI Records Cannot Be Withheld as Work Product Absent an Administrative Determination by the FBI. ..................................................... 6 The Interview Records Are Not Protected by Exemptions 6 and 7(C)................... 7 a. Disclosure of the Records is Likely to Advance a Significant Public Interest ................................................................................................. 7 b. The Privacy Interests Implicated by the Requested Records Are Diminished in Several Respects, Even if Those Interests Are Not Fully Extinguished. .... 7 c. Because of the Unique High-Level Government Officials Involved in this Case, Disclosure Will Not Discourage Future Cooperation ......................... 10 CONCLUSION ............................................................................................................................. 10 i Case 1:19-cv-08215-LGS Document 42 Filed 09/03/20 Page 3 of 16 TABLE OF AUTHORITIES CASES ACLU v. DOJ, 655 F.3d 1 (D.C. Cir. 2011) ........................................................................................................ 8 CREW v. DOJ, 746 F.3d 1082 (D.C. Cir. 2014). ............................................................................................. 7, 8 CREW v. DOJ, 840 F. Supp. 2d 226 (D.D.C. 2012) ............................................................................................ 9 Dep’t of State v. Washington Post Co., 456 U.S. 595 (1982) .................................................................................................................. 10 DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989) .................................................................................................................... 9 FTC v. Grolier, Inc., 462 U.S. 19 (1983) ...................................................................................................................... 2 Halpern v. FBI., 181 F.3d 279 (2d Cir. 1999)...................................................................................................... 10 Hickman v. Taylor, 329 U.S. 495 (1947) ........................................................................................................ 1, 2, 3, 5 In re Pfizer Inc. Sec. Litig., 1993 WL 561125 (S.D.N.Y. Dec. 23, 1993) .............................................................................. 5 In re Steinhardt Partners, L.P., 9 F.3d 230 (2d Cir. 1993)................................................................................................ 2, 4, 5, 6 Montesa v. Schwartz, 2016 WL 3476431 (S.D.N.Y. June 20, 2016) ........................................................................ 4, 5 N.Y. Times Co. v. DOJ, 138 F. Supp. 3d 462 (S.D.N.Y. 2015)......................................................................................... 5 Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004) .................................................................................................................... 7 Perlman v. DOJ, 312 F.3d 100 (2d Cir. 2002)...................................................................................................... 10 ii Case 1:19-cv-08215-LGS Document 42 Filed 09/03/20 Page 4 of 16 Quinon v. FBI, 86 F.3d 1222 (D.C. Cir. 1996) .................................................................................................... 9 Randleman v. Fidelity Nat’l Title Ins. Co., 251 F.R.D. 281 (N.D. Ohio 2008) .............................................................................................. 3 Taplin ex rel. Lacaze v. DOJ, 967 F. Supp. 2d 348 (D.D.C. 2013) .......................................................................................... 10 U.S. v. Adlman, 134 F.3d 1194 (2d Cir. 1998).................................................................................................. 2, 3 U.S. v. Nobles, 422 U.S. 225 (1975) ................................................................................................................ 2, 6 U.S. v. Stewart, 287 F. Supp. 2d 461 (S.D.N.Y. 2003)......................................................................................... 5 Williams v. Bridgeport Music, Inc., 300 F.R.D. 120 (S.D.N.Y. 2014) ................................................................................................ 5 STATUTES & REGULATIONS 5 U.S.C. § 552 ................................................................................................................................. 6 28 C.F.R. § 16.4 .......................................................................................................................... 6, 7 OTHER AUTHORITIES Gov’t Sentencing Mem., U.S. v. Cohen, No. 18-cr-602 (S.D.N.Y. Dec. 7, 2018), ECF No. 27 .... 9 Information, U.S. v. Cohen, No. 18-cr-602 (S.D.N.Y. Aug. 21, 2018), ECF No. 2 ....................... 8 Nicole Hong et al., Hush-Money Probe Gathered Evidence from Trump’s Inner Circle, Wall St. J. (Apr. 10, 2019, 8:05 AM), https://www.wsj.com/articles/hush-money-probe-gatheredevidence-from-trumps-inner-circle-11554897911?mod=e2tw ................................................... 9 SDNY, SDNY Discovery and Disclosure Policy (Oct. 15, 2010), https://tinyurl.com/yd86yj8p .. 3 RULES Fed. R. Evid. 502 ............................................................................................................................ 4 Fed. R. Civ. P. 26(b)(3)................................................................................................................... 2 iii Case 1:19-cv-08215-LGS Document 42 Filed 09/03/20 Page 5 of 16 Defendants U.S. Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) defend withholding interview records that shed light on transgressions by close associates of the President of the United States, and likely the President himself, by arguing that these records are protected by the work product doctrine and by privacy interests that outweigh any public interest in disclosure. But these investigatory records, prepared under a policy that requires disclosure of such records to adversaries in any resulting prosecution, cannot be protected work product. In any event, the information Defendants seek to protect—factual accounts of witness interviews— has already, of course, been entirely disclosed to the person interviewed, and any work product protection is waived where that person was a potential litigation adversary. Further, there is a significant public interest in disclosing the requested records—at least in substantial part—as they can shed light on Defendants’ decisions in investigating troubling conduct by the President and his close associates. As court documents and reputable reporting suggest, many of the records concern the conduct of high-level government officials, whose privacy interests are diminished by virtue of their positions. And the tremendous public interest in understanding how Defendants conducted an investigation implicating high-ranking officials, including possibly the President, outweighs any remaining privacy interests for much if not all of the withheld material. ARGUMENT I. The Interview Records Are Not Protected by Exemption 5 a. The Interview Records Cannot Logically Qualify for Work Product Protection Because They Were Created to be Disclosed to Litigation Adversaries. The work product doctrine exists to protect information prepared in anticipation of litigation from disclosure in order to allow parties to prepare for that litigation in a zone of privacy “free from unnecessary intrusion by opposing parties and their counsel.” Hickman v. Taylor, 329 U.S. 495, 510 (1947); see Pl.’s Mem. at 8–13. The records at issue here, however, 1 Case 1:19-cv-08215-LGS Document 42 Filed 09/03/20 Page 6 of 16 never could have been part of that zone of private preparation because they were created with the understanding that DOJ’s policy requires that they be produced to adversaries in litigation. Rather than try to explain how these records are nonetheless the sort of confidential trial preparation the doctrine exists to protect, Defendant DOJ instead attempts to distract the Court by distinguishing civil and criminal discovery. To be sure, the relevant inquiry for Exemption 5 is whether the records would “routinely” or “normally” be discoverable in civil litigation, FTC v. Grolier, Inc., 462 U.S. 19, 26–27 (1983), not disclosure in criminal discovery. But this ignores the threshold question of whether the records can qualify as work product at all when they would necessarily be disclosed in the very litigation in the anticipation of which they were prepared. Thus, DOJ’s reliance on Federal Rule of Civil Procedure 26(b)(3) is misplaced. Plaintiff does not dispute that, in the right circumstances, notes and memoranda of witness interviews may be protected work product. Often such interviews are part of that zone of confidential preparation in anticipation of litigation the doctrine exists to preserve. But the Second Circuit has emphasized that the evaluation of any work product claim must be done with a view towards the “practicalities of litigation.” In re Steinhardt Partners, L.P., 9 F.3d 230, 235 (2d Cir. 1993) (citing U.S. v. Nobles, 422 U.S. 225, 238 (1975)). Here, those practicalities conflict with the foundational logic underpinning the work product doctrine. Materials prepared with the foreknowledge that they will be disclosed to adversaries in litigation cannot be protected work product, because there is no need to be concerned with protecting that work from “unnecessary intrusion by [ ] adversaries.” U.S. v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) (quoting Hickman, 329 U.S. at 510–11). The question of actual disclosure is irrelevant to this inquiry. Following DOJ’s own policy, the drafters of the records knew at the time of their creation that the material would be 2 Case 1:19-cv-08215-LGS Document 42 Filed 09/03/20 Page 7 of 16 disclosed to the adversary if the investigation proceeded to prosecution. From the very moment of creation, these documents were written with the express knowledge that they could not be withheld from adversaries in discovery. Such documents cannot be protected work product when the consideration that underlies the doctrine is the concern that attorney work product should not be “open to opposing counsel on mere demand.” Hickman, 329 U.S. at 511. Documents created with the understanding that they are subject to mandatory disclosure in litigation cannot logically be protected under a doctrine meant to preserve a “zone of privacy in which a lawyer can prepare and develop legal theories.” Adlman, 134 F.3d at 1196 (citing Hickman, 329 U.S. at 510–11). DOJ’s comparison of the materials at issue to a draft complaint, Defs.’ Reply at 3, is inapposite. Like much attorney work product, a draft complaint is meant for the attorney and the clients’ eyes only until such time that the party both finalizes the draft and chooses to file. It is entirely within a party’s control to decide whether and when a draft complaint is filed. Changes between a draft complaint and a final, filed complaint could reveal the opinion work product of the attorney drafting the complaint, cf., e.g., Randleman v. Fidelity Nat’l Title Ins. Co., 251 F.R.D. 281, 285–87 (N.D. Ohio 2008), as could the features of any never-filed draft complaint. The same is not true for static factual recitals of witness interviews. And the witness interviews here must be produced to adversaries at a certain point in any prosecution according to SDNY policy. See SDNY, SDNY Discovery and Disclosure Policy (Oct. 15, 2010), https://tinyurl.com/yd86yj8p. Because the party knows from the very moment it creates the document that it is meant to be disclosed in any prosecution, and it will have no power to withhold the document, it does not exist in the zone of privacy protected as work product. 3 Case 1:19-cv-08215-LGS Document 42 Filed 09/03/20 Page 8 of 16 b. DOJ’s Assertion that Disclosure of the Withheld Information to Potential Litigation Adversaries Did Not Waive Work Product Protection Is Not Supported by Law or Logic. Even if the Court finds that the interview records at issue in this case qualify as work product, that protection has plainly been waived for those documents where all of the information therein has been disclosed to potential litigation adversaries—here Michael Cohen and any other individuals interviewed who were targets or subjects of the investigation. There is no dispute that these records simply memorialize the interviews, containing factual accounts of questions asked and answers given. Where the interviewed witnesses were targets or subjects of the investigation, then, all of the information in these documents has necessarily already been disclosed to DOJ’s actual or potential adversaries in any resulting prosecutions. There is no logical basis for asserting the work product doctrine’s protection over such information. DOJ incorrectly argues that to waive work product, the documents themselves must have been disclosed, and that waiver cannot “encompass oral disclosure.” Defs.’ Reply at 5–6. Tellingly, DOJ cites precious little authority for this distinction. Both the case law and the Federal Rule of Evidence governing the waiver of work product consistently refer to the disclosure of “information,” not documents, as effecting waiver. See Fed. R. Evid. 502 (“The following provisions apply . . . to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.” (emphasis added)); Montesa v. Schwartz, 2016 WL 3476431, at *8 (S.D.N.Y. June 20, 2016) (stating courts find a waiver of work product protection if the disclosure increases the opportunity for “potential adversaries to obtain the information.” (emphasis added) (citations and quotation marks omitted)); see also Steinhardt Partners, 9 F.3d at 235 (reasoning that where there is disclosure of “the otherwise privileged thought processes of counsel, the need for the privilege disappears”). And common sense 4 Case 1:19-cv-08215-LGS Document 42 Filed 09/03/20 Page 9 of 16 presents little reason to distinguish between oral and physical disclosure of information protected as work product to a potential adversary—both reveal the information in a manner inconsistent with the adversarial process.1 Second, DOJ’s strained efforts to distinguish Steinhardt Partners do not undermine Plaintiff’s waiver argument. It is true in that case that there was an “adversarial relationship,” as there certainly was here between DOJ and Michael Cohen, who was prosecuted by DOJ and is serving a term of incarceration. But the court in Steinhardt Partners also acknowledged that “the presence of an adversarial relationship does not depend on the existence of litigation,” 9 F.3d at 234, and, indeed, it is well established in this jurisdiction that disclosure to even “potential adversaries” waives work product protection.2 Consequently, disclosure of the withheld information in interviews of any other targets or subjects of the investigation also waived work product protection, even if those individuals were not ultimately charged. Finally, DOJ misconstrues Plaintiff’s point in noting that the records do not contain “mental impressions, conclusions, opinions, or legal theories.” Defs.’ Reply at 6–7. Plaintiff does not argue that a record must contain “mental impressions” to qualify as work product. But a merely factual account of an interview— “record[ing] the witness’s complete statements” without “opinion or contextual comments,” Defs.’ Reply at 6—only contains information that has already been disclosed to the witness, and thus to actual or potential litigation adversaries for 1 That the courts in Hickman and N.Y. Times protected witness statements as work product, Defs.’ Reply at 6 & n.4, is beside the point, because there is no indication in those cases that the relevant witnesses were actual or potential adversaries. Hickman involved defense counsel interviews of witnesses apparently employed by the defendant, 329 U.S. at 498, and there is no indication in the record that any of the witnesses interviewed in N.Y. Times were targets or subjects of the investigation. See N.Y. Times Co. v. DOJ, 138 F. Supp. 3d 462 (S.D.N.Y. 2015). 2 See, e.g., Montesa, 2016 WL 3476431, at *8; Williams v. Bridgeport Music, Inc., 300 F.R.D. 120, 123 (S.D.N.Y. 2014); In re Pfizer Inc. Sec. Litig., 1993 WL 561125, at *6 (S.D.N.Y. Dec. 23, 1993); U.S. v. Stewart, 287 F. Supp. 2d 461, 468 (S.D.N.Y. 2003). 5 Case 1:19-cv-08215-LGS Document 42 Filed 09/03/20 Page 10 of 16 records memorializing interviews with investigation targets or subjects.3 This disclosure waives any work product protection. And DOJ provides no rationale for why these disclosures should not waive work product protection. The doctrine is “intensely practical,” Nobles, 422 U.S. at 238, and its limits are defined by “[c]ommon sense,” Steinhardt Partners, 9 F.3d at 235. It does not serve the purposes of the work product doctrine to shield a document containing a factual recitation of questions put to a potential adversary and the adversary’s answers, when the doctrine exists only to protect against the disclosure of information to potential adversaries. c. The 22 FBI Records Cannot Be Withheld as Work Product Absent an Administrative Determination by the FBI. Defendants argue that it is of no moment that FBI has not determined that its records are protected work product. Defs.’ Reply at 4. But this reflects a fundamental misunderstanding of the statutory obligations imposed by FOIA. The FOIA request went to both EOUSA and FBI. Compl. ¶¶ 10–11 & Ex. A. “Each agency” receiving such a request must make an administrative determination whether to comply with the requests and notify the requester of “the reasons” for its determination, 5 U.S.C. § 552(a)(6)(A), and faces a separate obligation to make nonexempt records “promptly available” to the requester. Id. § 552(a)(3)(A). DOJ regulations delegate those obligations to components within DOJ. 28 C.F.R. § 16.4. EOUSA and FBI therefore each have an independent obligation to make an administrative determination regarding the records at issue and to make any nonexempt records available. There is no evidence in the record—even as supplemented by Defendants in reply—that FBI has made any determination that the 3 To the extent DOJ argues that the records do contain the mental impressions and strategy of prosecutors, it again only points to the fact that the content of the interview could reveal “the focus and emphasis of their questioning and their thinking about the substance of the case.” Defs.’ Reply at 7. But of course, any “questioning” has already been disclosed to the witnesses, including potential adversaries, and so any protection has been waived. See Pl.’s Mem. at 14. 6 Case 1:19-cv-08215-LGS Document 42 Filed 09/03/20 Page 11 of 16 22 responsive FBI records are work product protectable under Exemption 5. In the absence of such evidence, if the Court concludes that FBI’s withholdings under Exemption 6 and 7(C) are improper, then FBI has an independent obligation to make its 22 records available to American Oversight regardless of any separate administrative determinations made by EOUSA.4 II. The Interview Records Are Not Protected by Exemptions 6 and 7(C) a. Disclosure of the Records is Likely to Advance a Significant Public Interest. Disclosure of the records at issue will inform the public on matters of intense public interest—the decisionmaking of the Defendants, including whether to pursue leads or issue indictments, in connection with an investigation of campaign finance crimes in which the President is implicated and potentially involving the conduct of senior governmental officials, including the President, while in federal office. The tremendous public interest in these issues substantially outweighs any privacy interest in most if not all of the withheld information. Rather than acknowledge this substantial public interest, Defendants cite to Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004), to suggest that Plaintiff has not shown that disclosure is likely to advance a significant public interest absent evidence of government “misconduct,” Defs.’ Reply at 12, or “impropriety,” id. at 13. But this argument seeks to impose an additional threshold requirement that simply does not exist. As the D.C. Circuit has held when faced with an almost identical question, significant public interest in disclosure of records such as Form 302s exists “independent of any impropriety” by defendants, as “matters of substantive law enforcement are properly the subject of public concern, whether or not the policy in question is lawful.” CREW v. DOJ, 746 F.3d 1082, 1095 (D.C. Cir. 2014) 4 FBI and EOUSA can obviously consult regarding records in which both have an interest, see 28 C.F.R. § 16.4(d)(1), and, if convinced, FBI could then administratively determine that the records are protected work product. But there is no evidence of that happening in the record here. 7 Case 1:19-cv-08215-LGS Document 42 Filed 09/03/20 Page 12 of 16 (quoting ACLU v. DOJ, 655 F.3d 1, 14 (D.C. Cir. 2011)) (internal ctitations omitted). In fact, “[w]hether government impropriety might be exposed in the process is beside the point.” Id. (citing ACLU, 655 F.3d at 14). As in CREW, here there has been “a sufficient showing to establish the public interest in disclosure of matters of substantive law enforcement policy” independent of any public interest in uncovering misconduct. 746 F.3d at 1095 & n.5. Defendants also argue that disclosure here would not shed light on federal agency action because the investigation concerned only “the conduct of a presidential candidate and members of his campaign staff.” Defs.’ Reply at 12. This misses the mark in two important respects. First, the allegations here relating to the President and his senior advisors are not limited to the campaign but also concern conduct after the President and certain advisers assumed federal office. See Information, U.S. v. Michael Cohen, No. 18-cr-602 (S.D.N.Y. Aug. 21, 2018), ECF No. 2. Second, the President ultimately has control over DOJ and FBI, whose actions are under scrutiny, and there is significant public interest in understanding whether agencies under his control “pulled [ ] punches” in an investigation that touched on the President’s conduct. CREW, 746 F.3d at 1093. It defies logic and common sense to suggest the public would not have a significant interest in disclosure of records that shed light on the facts surrounding decisions by a law enforcement agency in a matter that concerned the conduct of the President and his close associates while the President had power over that agency. b. The Privacy Interests Implicated by the Requested Records Are Diminished in Several Respects, Even if Those Interests Are Not Fully Extinguished. This significant public interest outweighs any privacy interests implicated by most, if not all, of the withheld material. This is particularly so with respect to those records that reflect interviews of, or concerning the conduct of, senior government officials who have a diminished privacy interest. The Court must consider this diminishment when it “balance[s] the public 8 Case 1:19-cv-08215-LGS Document 42 Filed 09/03/20 Page 13 of 16 interest in disclosure against the [privacy] interest[s].” DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 776 (1989); CREW v. DOJ, 840 F. Supp. 2d 226, 234 (D.D.C. 2012) (balancing “substantial—although much diminished—privacy interest” of a member of Congress against the public interest in disclosure). Defendants do not contest that government “officials may have a somewhat diminished privacy interest,” even if they retain some privacy interests. Defs.’ Reply at 9 (citing Quinon v. FBI, 86 F.3d 1222, 1230 (D.C. Cir. 1996)). Here publicly available information—from both DOJ’s court filings and reputable reporting—shows that the requested records likely contain the statements of, or concern conduct by, at least three senior government officials. DOJ’s filings indicate that President Trump’s conduct was clearly relevant to its investigation of Mr. Cohen.5 And the Wall Street Journal has reported that Assistant to the President Hope Hicks and Deputy Assistant to the President Keith Schiller were interviewed in connection with the investigation.6 The portions of the requested records that concern these officials, or other senior officials, implicate only diminished privacy interests. In addition, other public information has further diminished the privacy interests of these officials, as well as that of Michael Cohen. Defendants claim that the Wall Street Journal’s reporting of Ms. Hicks and Mr. Schiller’s involvement in the investigation of Mr. Cohen does not diminish their privacy interests at all. Defs.’ Reply at 9. But neither Ms. Hicks nor Mr. Schiller have publicly refuted reports—as far as Plaintiff can tell—that they were interviewed as a part of this investigation. Despite the fact that DOJ has not officially acknowledged Ms. Hicks 5 Gov’t Sentencing Mem., U.S. v. Cohen, No. 18-cr-602 (S.D.N.Y. Dec. 7, 2018), ECF No. 27 (referencing “Individual-1,” described as having become president by January 2017). 6 Nicole Hong et al., Hush-Money Probe Gathered Evidence from Trump’s Inner Circle, Wall St. J. (Apr. 10, 2019, 8:05 AM), https://www.wsj.com/articles/hush-money-probe-gatheredevidence-from-trumps-inner-circle-11554897911?mod=e2tw. 9 Case 1:19-cv-08215-LGS Document 42 Filed 09/03/20 Page 14 of 16 and Mr. Schiller’s involvement, “[t]he public nature of information may be a reason to conclude, under all the circumstances of [the] case, that the release of such information” would not harm a privacy interest. Dep’t of State v. Washington Post Co., 456 U.S. 595, 603 n.5 (1982). Indeed, courts have found that “facts” short of official acknowledgement or admission by the subject may “weaken the rationales” for preventing disclosure on the basis of privacy interests. Taplin ex rel. Lacaze v. DOJ, 967 F. Supp. 2d 348, 355 (D.D.C. 2013). Further, Defendants do not contest that public information has diminished the privacy interests of Mr. Cohen or President Trump. c. Because of the Unique High-Level Government Officials Involved in this Case, Disclosure Will Not Discourage Future Cooperation. Disclosure of the requested records is extremely unlikely to discourage cooperation with law enforcement in the future. The very case Defendants cite for the proposition that there is a “strong public interest in encouraging witnesses to participate in future government investigations” also holds that the privacy interests of a government employee are “diminished” by his status as a government employee. Perlman v. DOJ, 312 F.3d 100, 107 (2d Cir. 2002) (internal citations omitted). The requested records here reflect statements concerning not only government officials, but exceptionally high-ranking government officials. See supra, Section II.b. Thus, the public interest in disclosure outweighs the risk of the employees’ “embarrassment [or] harassment” if identified. Perlman, 312 F.3d at 106 (quoting Halpern v. FBI., 181 F.3d 279, 297 (2d Cir. 1999)). Due to the unusually high-level officials implicated here, including the President, the disclosure of information in this extraordinary and rare instance is unlikely to harm any systemic interest in encouraging cooperation with future law enforcement investigations. CONCLUSION For the reasons specified above, American Oversight respectfully requests that the Court grant Plaintiff’s Cross-Motion for Summary Judgment. 10 Case 1:19-cv-08215-LGS Document 42 Filed 09/03/20 Page 15 of 16 Dated: September 3, 2020 Respectfully submitted, /s/ Emma Lewis Emma Lewis* D.C. Bar No. 144574 Daniel A. McGrath N.Y. Bar No. 5541198 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 897-4213 emma.lewis@americanoversight.org daniel.mcgrath@americanoversight.org Counsel for Plaintiff *Admitted Pro Hac Vice 11 Case 1:19-cv-08215-LGS Document 42 Filed 09/03/20 Page 16 of 16 CERTIFICATE OF SERVICE I hereby certify that on September 3, 2020, I electronically filed a copy of the foregoing Reply. Notice of this filing will be sent via email to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System. /s/ Emma Lewis Emma Lewis