[00:00:00] Speaker 02: appeals for the Ninth Circuit is now in session. [00:00:06] Speaker 02: Good morning everyone and welcome to the Ninth Circuit. [00:00:09] Speaker 02: Judge Nelson, I are pleased to have Judge David Ezra, district judge for the district of Hawaii, who's helping us today. [00:00:18] Speaker 02: Thank you. [00:00:19] Speaker 04: Thank you for the opportunity and the honor. [00:00:22] Speaker 02: We will take the cases in the order on the day sheets [00:00:26] Speaker 02: We have a number of cases submitted on the briefs. [00:00:28] Speaker 02: First, Amaral V. Bondi is submitted. [00:00:32] Speaker 02: Rojas Ruiz versus Bondi is submitted. [00:00:37] Speaker 02: Full tilt Boogie versus Bic. [00:00:41] Speaker 02: The Bics is submitted. [00:00:43] Speaker 02: And our first case for argument is Lawrence Calbers versus DOJ and VW. [00:01:01] Speaker 00: Thank you, your honor, and may it please the court, Sean Janda for the federal government. [00:01:05] Speaker 00: I'm going to endeavor to reserve three minutes of my time for rebuttal and six minutes for Ms. [00:01:09] Speaker 00: Ratner, who will be arguing on behalf of Volkswagen after me. [00:01:12] Speaker 02: Okay, please watch the clock. [00:01:14] Speaker 00: I will do. [00:01:16] Speaker 00: Rule 60, which codifies traditional principles of grand jury secrecy, generally prohibits the government from disclosing information that would tend to reveal the nature and direction of a grand jury investigation. [00:01:28] Speaker 00: In this case, CalPERS seeks six million documents, all six million documents, that Volkswagen produced in response to a grand jury subpoena. [00:01:36] Speaker 02: Fulfilling- Can I ask you a question? [00:01:38] Speaker 02: We have the special master's opinion, and she said that plaintiff has already agreed to limit his request by excluding all untagged records. [00:01:49] Speaker 02: Is that not correct? [00:01:50] Speaker 02: Because she then goes on to say that according to the [00:01:57] Speaker 02: the chief of litigation, there are approximately 3.3 to 4.3 million untagged records, leaving between 720,000 to 1.3 million tagged records. [00:02:09] Speaker 02: So she thought, the special master thought, that CalPERS had agreed to restricting the materials that had to be disclosed. [00:02:18] Speaker 02: Could you address that? [00:02:20] Speaker 00: My understanding is that Professor Kalbors has not sort of formally agreed to amend his FOIA request down to a smaller number of documents and has resisted attempts to do that, though has suggested in the litigation that he may be willing to restrict it to the sort of tagged records or maybe have those go first. [00:02:38] Speaker 02: So the special master's statement was incorrect. [00:02:41] Speaker 02: Is that your understanding? [00:02:44] Speaker 00: I don't want to say it's incorrect, Your Honor, but I'm not sure that that's a sort of formal concession that Professor Calvertz has made, although I think his counsel will be better positioned to address that. [00:02:53] Speaker 00: That being said, even assuming for purposes of the question that he's only seeking... Would you agree to the tag records? [00:02:58] Speaker 00: What are the tag records? [00:03:00] Speaker 00: So no is the answer. [00:03:01] Speaker 03: I mean, the tag records seem to be at the... I would assume they're sort of at the heart of this. [00:03:06] Speaker 00: Right, Your Honor. [00:03:06] Speaker 00: So my understanding is the tag records are ones that the prosecutors put tags on when going through the database. [00:03:12] Speaker 00: And so, even assuming for purposes of the question that we're talking about a million tagged records rather than six million all the records, revealing the one million documents that the grand jury was perhaps most interested in, that Volkswagen produced, would create a substantial rule 60 problem all its own. [00:03:29] Speaker 04: Are you just using that as a round number? [00:03:33] Speaker 04: Are there actually one million? [00:03:35] Speaker 00: I believe that the range figure is approximately 700,000 to 1.3 million. [00:03:41] Speaker 00: Of tagged records? [00:03:42] Speaker 00: Of tagged records. [00:03:44] Speaker 02: So those are the ones that the government would be entitled to not disclose under 6E, correct? [00:03:52] Speaker 00: No, Your Honor. [00:03:53] Speaker 00: The entire scope of the production that Volkswagen made, the whole production was in response to a grand jury subpoena, and all of the records in the [00:04:03] Speaker 00: 5.5-ish million are labeled as having been produced in response to a grand jury subpoena. [00:04:09] Speaker 02: And the special master's opinion says, you know, that only some of them were tagged and a lot of them were duplicates. [00:04:18] Speaker 02: And so why isn't that, why isn't that restricted? [00:04:23] Speaker 02: The Department of Justice would have to, would be able to withhold [00:04:30] Speaker 00: So I think there's two things there, Your Honor. [00:04:32] Speaker 00: Number one, the whole universe is the documents that Volkswagen produced in response to the subpoena. [00:04:38] Speaker 00: And disclosing all of them or a substantial portion of them would plainly disclose the sorts of the time periods, the custodians, the conduct that the grand jury was interested in investigating and restricting it down to whether it's the 1 million tagged records or the 3 million untagged records and disclosing some of them or one half or the other half [00:04:59] Speaker 00: It just creates its own Rule 60 problems by providing additional information about what the grand jury thought was particularly relevant. [00:05:07] Speaker 02: Well, so six million documents, it would seem, would conceal what the grand jury was interested in or what the Department of Justice was interested in because it's such a huge amount. [00:05:21] Speaker 02: So I'm not sure why disclosing all six million documents would [00:05:26] Speaker 02: necessarily show the matter occurring before the grand jury. [00:05:31] Speaker 02: Can you explain that? [00:05:32] Speaker 00: Yes, Your Honor. [00:05:33] Speaker 00: Disclosing the six million documents, all of which were produced in response to a grand jury subpoena. [00:05:38] Speaker 00: This isn't a circumstance where you have some documents that were produced in response to a subpoena mixed in with a bunch of other documents with no way of knowing which ones are which. [00:05:45] Speaker 02: What was the request? [00:05:46] Speaker 02: Was it all documents in a, you know, 10-year period or what was... Isn't that sealed? [00:05:52] Speaker 00: So the FOIA request was all documents produced or presented by Volkswagen's counsel to the Department of Justice. [00:06:01] Speaker 00: The contours of the subpoena that they were being produced in response to is unquestionably Rule 60 information, and that is something that I don't think in the record and not something that we would be in a position to disclose. [00:06:15] Speaker 00: But I think, you know, even assuming for purposes of the question. [00:06:17] Speaker 03: His request, so the FOIA request, I thought it was limited solely to documents that were produced subject to the subpoena. [00:06:27] Speaker 00: So the FOIA request says all documents presented by VW to the Department of Justice or VW's counsel to the Department of Justice. [00:06:35] Speaker 00: The record indicates that the full universe of documents presented by VW to the Department of Justice were presented in response to the grand jury subpoena. [00:06:43] Speaker 00: So those two universes have converged. [00:06:45] Speaker 03: The agreement that there's nothing outside of the grand jury subpoena that's at issue here in the FOIA request. [00:06:52] Speaker 00: That's correct. [00:06:52] Speaker 00: There was a different part of the FOIA request that asked for these monitor reports, but I think that's now falling out of the case. [00:06:57] Speaker 00: And so the six million documents that we're talking about are the ones that were produced in response to a grand jury subpoena and that are identifiable as such on their face. [00:07:06] Speaker 04: Go ahead, I'm sorry. [00:07:08] Speaker 00: And as I said, I think having the full universe of documents that Volkswagen produced in response to the subpoena publicly disclosed would reveal a lot of information. [00:07:16] Speaker 00: It would tell you the time periods, for example, that the grand jury was interested in investigating. [00:07:20] Speaker 00: It would tell you the custodians of the grand jury was particularly interested in. [00:07:24] Speaker 00: It would tell you the particular conduct that the grand jury was interested in. [00:07:27] Speaker 00: And it would tell you. [00:07:30] Speaker 02: Why is that? [00:07:30] Speaker 02: I mean, it would certainly tell you the time period, I guess, because it would be whatever the dates were. [00:07:35] Speaker 02: But how would it show something more than that if it was like, for example, if the request to the subpoena said all of your documents, because the special mail, she said every email that was exchanged, all the documents between these two periods. [00:07:52] Speaker 00: So I do want to be mindful of the time, Your Honor. [00:07:54] Speaker 00: I know Ms. [00:07:55] Speaker 00: Ratner has her six minutes. [00:07:58] Speaker 00: I think you're talking at this point about the documents that were produced in response to the subpoena. [00:08:03] Speaker 00: And so, for example, if there are a lot of documents that were sent by John Smith at Volkswagen, I think that would be a pretty good indication that the grand jury was interested in investigating John Smith. [00:08:16] Speaker 00: If there are a bunch of documents that come from a particular Volkswagen [00:08:20] Speaker 00: Division or subsidiary it would be pretty good evidence that Volkswagen the grand jury was interested in investigating that Andy or that subsidiary Let me ask you this question. [00:08:30] Speaker 04: Are you taking the position that? [00:08:33] Speaker 04: So long as the grand jury subpoenas documents Regardless [00:08:42] Speaker 04: from a party that those documents are therefore under the seal of the grand jury and presumably the Justice Department has therefore the right to decline to respond to a FOIA request with respect to those documents? [00:09:05] Speaker 00: With the caveat, Your Honor, that we're talking about documents not just that were subpoenaed by the grand jury, but that are identifiable. [00:09:11] Speaker 04: Let me give you an example. [00:09:14] Speaker 04: Let's say that, and I'll pull from something here out of the news, let's say that if the government wanted to prevent certain documents from reaching the public, could they convene a grand jury and [00:09:35] Speaker 04: the grand jury then subpoenas all the documents relating to that particular instance that the government doesn't want to have out because it might be embarrassing and therefore all those documents are forever sealed. [00:09:52] Speaker 00: But no, in a couple of ways. [00:09:55] Speaker 00: So one is, generally speaking, if there are documents out in the world that the grand jury subpoenas that are then produced to the government that the government's sort of copy of those documents, if they're identifiable as having been produced in response to the grand jury subpoena. [00:10:10] Speaker 00: are protected by Rule 60. [00:10:12] Speaker 00: The individual who has them out in the world, I think, would not necessarily have a Rule 60 claim if someone else had an entitlement to those documents. [00:10:21] Speaker 02: There's some other entitlement, but what Judge Edge was saying is that the government could effectively seal all the documents that it had gotten, and unless there was some alternative basis, which I'm not sure what it would be, they could keep them secret. [00:10:40] Speaker 00: So I think that the important thing to understand is that before the government has the documents, they're not subject to FOIA at all. [00:10:45] Speaker 00: And so, you know, for in this case, when Volkswagen has the documents, obviously they can't be FOIAed. [00:10:51] Speaker 00: And so the sort of producing them in response to the grand jury subpoena doesn't convey additional secrecy rights in those documents. [00:10:58] Speaker 00: If someone were in civil litigation with Volkswagen and served a discovery request for documents that Volkswagen happened to produce to the grand jury, I don't think Volkswagen would be able to protect those documents in the civil litigation. [00:11:13] Speaker 00: But it just doesn't. [00:11:14] Speaker 03: The hypothetical doesn't really even apply. [00:11:17] Speaker 03: Because if those documents were someone else, they would be discoverable. [00:11:22] Speaker 03: I mean, the only thing about this case that's unique, I think, correct me if I'm wrong, [00:11:27] Speaker 03: is that the only copy of those documents was produced to the government pursuant to the subpoena. [00:11:33] Speaker 03: If the government had them separately outside of the subpoena, they could be, they could be FOIAable, right? [00:11:40] Speaker 00: Correct. [00:11:40] Speaker 00: That's Dynavac. [00:11:41] Speaker 00: Correct. [00:11:42] Speaker 00: And so if the government had copies of these documents that were not produced in response to the subpoena, were not identifiable on their faces having been produced in response to the subpoena, and someone submitted a FOIA request for documents related to Volkswagen without [00:11:54] Speaker 00: sort of mentioning the grand jury or talking about waived and subpoenaed, then Rule 60 likely would not protect those documents. [00:11:59] Speaker 00: I would like to give time for Ms. [00:12:01] Speaker 00: Ratner. [00:12:10] Speaker 01: Thank you, Judge Akuta. [00:12:11] Speaker 01: May it please the court, Morgan Ratner for Volkswagen. [00:12:14] Speaker 01: I want to make two quick points of clarification. [00:12:17] Speaker 01: The first is in response to this last line of questioning, your question, Judge Ezra, and your response to Judge Nelson. [00:12:24] Speaker 01: The easiest guiding principle for these cases is the one sent out in the DC Circuit's SEC against Dresser decision, [00:12:33] Speaker 01: which is the grand jury neither adds to nor subtracts from rights available otherwise. [00:12:40] Speaker 01: And so if the only way you have access to these documents, theoretically, is because the grand jury asked for them, as in this case, well, rule 6C doesn't allow that. [00:12:50] Speaker 01: You're adding to your rights by taking advantage of the grand jury. [00:12:54] Speaker 03: Are there any cases that address that? [00:12:56] Speaker 03: I mean, as I understand it, as I look through all these cases, this is unique. [00:13:00] Speaker 03: Every other case where documents that have been subpoenaed by a grand jury or FOIA requested that were subject to a grand jury, the only basis for producing such documents was because they were available somewhere else. [00:13:13] Speaker 01: Correct. [00:13:14] Speaker 01: So the closest cases I would give you, Judge Nelson, are the Second Circuit's decision in a case called Grinberg, which was asking for subpoenaed corporate records. [00:13:24] Speaker 01: It took the court three pages and an unpublished opinion to say, obviously, that's taking advantage of the grand jury. [00:13:30] Speaker 01: That's out of bounds. [00:13:32] Speaker 01: The other case that I think comes closest to this is the Supreme Court's decision in a case called United States Against Cells Engineering. [00:13:40] Speaker 01: And there, every single justice took for granted [00:13:43] Speaker 01: that subpoenaed documents were themselves matters occurring before a grand jury. [00:13:48] Speaker 03: How is that not true? [00:13:50] Speaker 03: I'll ask the other counsel, but what is a matter before a grand jury other than a subpoena that was issued by the grand jury? [00:14:00] Speaker 01: I mean, Your Honor, I, of course, agree. [00:14:02] Speaker 01: I think there's no way to square the special master's decision here with the Supreme Court's decision in sales engineering. [00:14:09] Speaker 02: So the word matter, at least from Black's law dictionary, when the rule 6c was issued, says the substantial facts forming basis of the claim or defense facts material to the issue, substance is attuned from transaction event or occurrence. [00:14:29] Speaker 02: It's not every email that was produced. [00:14:33] Speaker 02: It's those emails or those documents that form the basis of the claim. [00:14:38] Speaker 02: So how do we know that? [00:14:39] Speaker 02: The six million documents form the basis of the claim against VW. [00:14:45] Speaker 01: So Judge Akuta, I don't think that's a correct understanding of matter in this context because it's matter occurring before the grand jury. [00:14:53] Speaker 02: It's everything that is... The matter has to be an actual matter, not just every document that was created by the [00:15:00] Speaker 02: the subject, the VW during a time period, for example. [00:15:04] Speaker 01: So there are two different things a grand jury does. [00:15:07] Speaker 01: One is the grand jury does deliberate and choose whether to have, to indict. [00:15:13] Speaker 01: But the other thing a grand jury does is investigate. [00:15:16] Speaker 01: And as part of its investigation, if it says, give us all the things related to X and we produce what we have related to X, those are matters occurring before the grand jury in its investigative capacity. [00:15:30] Speaker 03: have a relevance objection to a grand jury does Volkswagen have a relevance objection to a grand jury subpoena [00:15:37] Speaker 01: So what you could see if cases, if this case were to, if you all were to affirm the district court's decision here is I do think you would have a response by companies and any subjects of a grand jury investigation of challenging grand jury subpoenas in, as over broad or seeking to quash them. [00:16:02] Speaker 01: You don't see a lot of that now because. [00:16:06] Speaker 03: I mean would that have to be under seal before I mean I don't even know how you would react to the relevance of a grand jury investigation because the grand jury can ask Whatever it want. [00:16:17] Speaker 03: I mean that's the whole point isn't it is it's trying to figure out what issues it needs to consider [00:16:21] Speaker 01: I think that's exactly right Judge Nelson. [00:16:24] Speaker 01: My point is that this was set out by the Supreme Court in Douglas Oil. [00:16:28] Speaker 01: The whole point of the grand jury's extremely broad investigative authority is that it's matched with a broad secrecy rule and that allows for full and frank disclosure. [00:16:40] Speaker 02: Thank you. [00:16:42] Speaker 05: Good morning and may it please the court. [00:16:47] Speaker 05: Daniel Jacobs for Professor Lawrence Calbers. [00:16:51] Speaker 05: I'd like to start where you left off, Judge Ryan, but before I do, I'd just like to say having served at DOJ in the environment and natural resources division for much of my career, I am very familiar with FOIA requests. [00:17:07] Speaker 03: And DOJ's approach in this case... You're aware that, I mean, if we do anything less than affirm the district court, this is going to take [00:17:16] Speaker 03: 20 years to respond to a FOIA request covering 4.5 million documents? [00:17:22] Speaker 05: Well, so many things to say. [00:17:25] Speaker 05: Let me be succinct. [00:17:26] Speaker 05: There is a case called Wiener, another professor at UC Irvine, that took 20 years. [00:17:32] Speaker 05: And when I said to my client, that case took 20 years, he says, I don't think I have it. [00:17:37] Speaker 05: You're hoping. [00:17:41] Speaker 02: So this is a special master opinion. [00:17:44] Speaker 02: Said that plaintiff has already agreed to limit his request by excluding all untagged records. [00:17:49] Speaker 02: Is that correct or incorrect? [00:17:51] Speaker 05: So we Let me answer both of your questions Inquiries from from from the last round so to speak the request judge nelson was quote a copy the part of the request relevant today a copy and i'm quoting of all factual evidence presented by jones day to the justice department [00:18:14] Speaker 05: as the term is used on page 295 of Volkswagen's 2017 annual report. [00:18:21] Speaker 05: So Volkswagen publicizes the fact that it's turned over these records. [00:18:28] Speaker 05: My client never asked for records that were responsive to a subpoena. [00:18:36] Speaker 03: And let me make it what I think is a very- Well, I guess you don't know, but is there a dispute here? [00:18:45] Speaker 03: I'm operating under the assumption, correct me if I'm wrong, that all 6 million of these documents, there's only one copy of them and they all came through a grand jury subpoena. [00:18:54] Speaker 03: Is that correct or is that wrong? [00:18:56] Speaker 05: I can't speak to that. [00:18:57] Speaker 05: I don't have that knowledge. [00:18:59] Speaker 05: What I can say is there's been sort of different variations of whether or not these documents were actually produced in response to a grand jury subpoena. [00:19:11] Speaker 05: There is this very broad characterization in a very early affidavit declaration by the Justice Department FOIA officer saying, the documents were all produced in response to a grand jury subpoena. [00:19:22] Speaker 05: There are other variations in other Justice Department declarations. [00:19:26] Speaker 05: When you look at the declarations submitted by Volkswagen's law. [00:19:29] Speaker 03: Can you point us to anything that would suggest that there are documents here that were obtained any other way than through a grand jury? [00:19:38] Speaker 05: There's roughly a handful of what I think. [00:19:41] Speaker 05: If you look at what the government submitted as an initial bond index, you'll see there are documents, a handful of documents that are organizational charts. [00:19:51] Speaker 05: Those are not Volkswagen's documents. [00:19:53] Speaker 05: Those were presumably not responsive to the grand jury subpoena. [00:19:56] Speaker 05: And the distinction I really want to make is handing over. [00:20:00] Speaker 03: And if that's true, that's what the DC Circuit did. [00:20:03] Speaker 03: The DC Circuit remanded to say, hey, if there's some confusion about whether these were obtained solely through the grand jury or not, then the district court can go in and ferret those out. [00:20:15] Speaker 03: Are you aware of, assuming that all documents came through the grand jury subpoena, are you aware of any court [00:20:21] Speaker 03: that has ever required a document to be produced, relevant or not relevant, or if it was obtained solely through a grand jury. [00:20:31] Speaker 03: Absolutely. [00:20:32] Speaker 05: Who? [00:20:33] Speaker 05: Absolutely. [00:20:33] Speaker 05: We can look at the DC Circuit case that Volkswagen has embraced, and that's the fund for constitutional [00:20:45] Speaker 05: Make sure I get it right here. [00:20:47] Speaker 03: In that case, you're saying there were documents that were only obtained through a grand jury, no other basis, and they required production. [00:20:54] Speaker 05: One for constitutional government versus National Archives and Records Service. [00:21:02] Speaker 05: So that's the Watergate case. [00:21:05] Speaker 05: And the special prosecutor's turn over documents [00:21:11] Speaker 05: My favorite example is the first category of information. [00:21:17] Speaker 05: And by the way, the special prosecutors, when they're done with the investigation, turn over the records to the archives. [00:21:24] Speaker 05: So when the request actually hits the courts, the archives have the documents. [00:21:29] Speaker 05: They produced a fair number of the documents. [00:21:32] Speaker 05: And so my specific example. [00:21:34] Speaker 03: So that actually undercuts it, because they were with the archives. [00:21:39] Speaker 05: Well, they got to the archives via the special prosecutors via the subpoena. [00:21:43] Speaker 03: I understand that, but that's my whole point. [00:21:46] Speaker 03: If these documents went outside of the grand jury subpoena process, you have a claim. [00:21:53] Speaker 03: In that case, they went to the National Archives, 6E may not apply. [00:21:57] Speaker 03: If they stay solely with, these were blocked, at least the representations we have, that's why I'm asking you these questions. [00:22:03] Speaker 03: The representations we have are that these were sold off. [00:22:08] Speaker 03: No one else had access to them. [00:22:09] Speaker 03: They were only used for the grand jury subpoena. [00:22:12] Speaker 03: The case you just gave me says, yeah, if they send those out to somebody else, and under judge's hypothetical, if these documents exist somewhere else, they're fair game. [00:22:23] Speaker 03: But if they're only under a grand jury subpoena, they're protected. [00:22:27] Speaker 05: A, we don't know that any of these documents. [00:22:29] Speaker 03: That's why I'm asking you. [00:22:30] Speaker 05: And maybe we should remand to figure that out. [00:22:32] Speaker 05: The special master would, I can't speak for her, but she did want further factual development of the record. [00:22:39] Speaker 05: The government didn't want that. [00:22:42] Speaker 02: Didn't want that. [00:22:42] Speaker 02: So the special master first said that you had agreed to limit your request and then she said that the duplicates should be withheld. [00:22:53] Speaker 02: So what's your response to that? [00:22:55] Speaker 02: And then there was using a translation tool. [00:22:59] Speaker 02: to further process the documents. [00:23:03] Speaker 05: So I think that was in the initial set of what the government calls the presentation documents, some 270 odd. [00:23:12] Speaker 05: And we have been very reasonable from the start. [00:23:19] Speaker 05: Once they said that the vast majority are untagged, fine, let's just give us the tag records. [00:23:29] Speaker 03: I don't understand that. [00:23:30] Speaker 03: You wanted the tagged records. [00:23:32] Speaker 03: You didn't want the untagged records. [00:23:34] Speaker 03: The tagged records seem to be exactly what would disclose with the grand jury. [00:23:39] Speaker 03: They would be most relevant to what the grand jury considered. [00:23:43] Speaker 05: Not necessarily. [00:23:45] Speaker 05: Not necessarily. [00:23:46] Speaker 05: Can I finish my response on the fund for constitutional government? [00:23:51] Speaker 05: Because it involves Watergate. [00:23:53] Speaker 05: The first category of documents relate to the 18 and a half minute gap in the notorious 18 minute and a half gap in the tape, right? [00:24:02] Speaker 05: So the tapes come in via subpoena. [00:24:05] Speaker 03: If we're going to apply a rule that a document... It doesn't... Council, it doesn't even comply here. [00:24:12] Speaker 03: because you have a government document, a tape, that was held by the National Archives or by the President or by somebody else. [00:24:21] Speaker 03: That was in the government possession, separate and apart from the subpoena. [00:24:25] Speaker 03: So the Watergate stuff, it's not even analogous here. [00:24:29] Speaker 05: Nixon versus United States, with all due respect, Your Honor, we know there was a subpoena for the tapes. [00:24:34] Speaker 03: I don't disagree with that, but the tapes were already held by the government. [00:24:40] Speaker 03: They were held outside of the subpoena process. [00:24:45] Speaker 03: Here, Volkswagen, the only reason the government has these documents is because of the subpoena. [00:24:51] Speaker 05: If you look, I take your point. [00:24:54] Speaker 05: Because the president had the tapes, they were government documents. [00:24:57] Speaker 05: So let me give you a different example from the same case. [00:25:00] Speaker 05: If you look at Fund, you will see summarized in the Circuit Court's opinion at 656 [00:25:09] Speaker 05: at second at 869, the very, very narrow aspects of the documents, all subpoenaed, that could be redacted. [00:25:23] Speaker 05: There were a lot of subpoenaed documents produced in that case. [00:25:26] Speaker 05: The only ones that were redacted were, and I'm quoting, naming or identifying grand jury witnesses, quoting or summarizing grand jury testimony, discussing the scope, focus, and direction of the grand jury investigations, [00:25:39] Speaker 05: and identifying documents considered by the grand jury and conclusions reached as a result of the investigations. [00:25:46] Speaker 05: The documents that Volkswagen produced don't include any of that. [00:25:51] Speaker 05: And if you want to even... Well, you don't know that. [00:25:54] Speaker 05: They do include some of that. [00:25:56] Speaker 05: Let me run with your hypothetical. [00:25:58] Speaker 05: Let's say some of them fall into that category. [00:26:06] Speaker 05: And that's what Judge Olguin was saying. [00:26:10] Speaker 05: Give me a Vaughn index and show me why you get to withhold some of the documents. [00:26:17] Speaker 05: When the special master said no categorical exemption, she was saying the same thing that Judge Olguin said on February 5th of 2021. [00:26:28] Speaker 05: No categorical exception. [00:26:30] Speaker 05: Neither one of them is ruling out the opportunity to assert a valid [00:26:35] Speaker 05: on an individualized basis. [00:26:39] Speaker 03: I don't think that you have answered my question. [00:26:42] Speaker 03: My question is, can you point me to a case, because everyone that you've presented so far has fallen apart, so can you present me with a case where the documents were obtained solely through a grand jury subpoena, they're not housed in any other government, they're not in possession by the government in any other basis, [00:27:03] Speaker 03: where those have been ordered not to be produced because they're not protected by 6E. [00:27:10] Speaker 05: So if you look at the district court's opinion in the fund for constitutional government, at 480- The case, it doesn't work for you. [00:27:18] Speaker 03: Those documents, we've already been through this, those documents were held by the government outside of the subpoena process. [00:27:26] Speaker 03: I want a case where they were not held by any government agency. [00:27:30] Speaker 05: I beg to differ. [00:27:33] Speaker 05: The government got, if you look at the list at 485 F SUP at 12, it's pretty clear that those documents came in by subpoena and that some of them, most of them were produced and some of them- Produced them. [00:27:50] Speaker 05: Initially, the prosecutors produced some of them. [00:27:52] Speaker 03: No, no. [00:27:53] Speaker 03: Who produced them to the government by subpoena? [00:27:58] Speaker 05: B.B. [00:27:59] Speaker 05: Rubozo? [00:28:00] Speaker 05: I mean, if you look at the list, you do get an idea that they were private parties. [00:28:05] Speaker 02: Can I ask you about this VON index issue? [00:28:08] Speaker 02: So normally, when the government has documents that are FOIAable, they would prepare a VON index to say, these documents cannot be produced under a specific exemption. [00:28:24] Speaker 02: These documents can be those with the Vaughn index. [00:28:27] Speaker 02: So are you suggesting that with the six million documents, maybe the 1.3 million tag documents that the government needs to produce a Vaughn index? [00:28:36] Speaker 05: No. [00:28:37] Speaker 05: What we've said for the last four years, I think, maybe longer, [00:28:43] Speaker 05: Is with respect to this for what we call the first tranche of documents what the government refers to as the presentation? [00:28:50] Speaker 05: Documents that appear in its first bond index, and I'm trying to give you the number. [00:28:56] Speaker 05: I think it's 271 or so we're saying let's see a valid bond index for just that limited set and let the special master rule and [00:29:08] Speaker 05: On your Exemption 3, your Exemption 4, your Exemption 5, your Exemption 6, and let's go from there. [00:29:15] Speaker 02: So on Exemption 6E, you're not saying that every document that was subpoenaed is non-disclosable under 6E? [00:29:28] Speaker 05: Not at all. [00:29:29] Speaker 05: Not at all, Judge Akuta. [00:29:31] Speaker 05: Not at all. [00:29:32] Speaker 05: In fact, if you look at our initial FOIA request, you will see [00:29:38] Speaker 05: that we especially recognize Volkswagen's potential exemption for assertion for its legitimately bona fide, I think is where we use. [00:29:50] Speaker 05: Tell us if you have bona fide or confidential commercial information, fine. [00:29:55] Speaker 05: And that shows up on this initial Vaughn index as about a quarter of the documents. [00:30:03] Speaker 05: Quarter of the 271 or so they did have on index for what they called the presentation documents They have six meetings with the problem. [00:30:13] Speaker 03: I don't understand what your basis would be to get there were 271 Documents that were presented to the grand jury no no no I'm sorry. [00:30:21] Speaker 05: I'm confusing you [00:30:23] Speaker 05: The government tells us that 271 or so of the documents that Jones Day hand picks, which presents a different interesting question, and presents separately to the government in six meetings in Detroit and Washington. [00:30:43] Speaker 05: Those are what they initially said were responsive to our request. [00:30:49] Speaker 03: Oh, because they're claiming those are the documents they were talking about in their disclosure? [00:30:53] Speaker 05: They said you couldn't possibly mean six million? [00:30:56] Speaker 05: So they, of course... You said, we are. [00:31:01] Speaker 05: You can tell from the request itself that I read to you earlier, Judge Nelson, we didn't have any idea of the number. [00:31:08] Speaker 05: We see that Volkswagen is saying we have cooperated with the government. [00:31:14] Speaker 05: We've turned over all these records. [00:31:17] Speaker 05: Fine. [00:31:17] Speaker 05: They become government records. [00:31:18] Speaker 05: They don't say anything about a subpoena. [00:31:20] Speaker 05: And we don't know. [00:31:22] Speaker 05: I hope if I didn't make this point, I want to make it clear. [00:31:24] Speaker 05: We don't know how many, if any, of those documents were responsive to the subpoena. [00:31:31] Speaker 05: That's different from saying. [00:31:32] Speaker 05: And if you look at the wines. [00:31:33] Speaker 03: Can I ask you that? [00:31:34] Speaker 03: Because I think that's relevant here, not to throw another relevancy. [00:31:38] Speaker 03: Why doesn't matter whether they're responsive to the speed of my concern is if we go your way in any form or fashion here aren't we inviting. [00:31:47] Speaker 03: I mean companies respond to subpoenas because they think they have protection from FOIA if they don't aren't we just inviting a whole bunch of relevancy. [00:31:58] Speaker 03: fights beforehand, and how do you even fight relevancy of a subpoena to a grand jury? [00:32:03] Speaker 05: I heard that come up earlier, and I don't know the answer to how you would fight relevancy to a grand jury. [00:32:08] Speaker 05: I will say that there are a lot of exemptions, and just as I said earlier, Volkswagen, we've conceded that Volkswagen is protected by Exemption 4 with bona fide commercial confidential information. [00:32:22] Speaker 05: We've said that in the request. [00:32:24] Speaker 05: We've been very reasonable, I think, [00:32:28] Speaker 05: And the response that we get back, and when they say, well, we want to start with 271, we're like, fine, we'll start with the 271. [00:32:35] Speaker 05: We don't expect, my client doesn't have the resources to look through one million. [00:32:42] Speaker 05: And if you look at the document protocol that we submitted pursuant to the minute order at the end, [00:32:49] Speaker 05: We gave other examples. [00:32:51] Speaker 05: OK, give us this 271. [00:32:53] Speaker 05: Give us some lists, index, subtitles of the tag documents. [00:33:01] Speaker 05: And let's work, as they did in the Watergate case. [00:33:05] Speaker 05: The special prosecutor worked with the requester. [00:33:09] Speaker 05: The archives worked with the requester to call out these six categories of documents. [00:33:15] Speaker 05: And then they produced them. [00:33:17] Speaker 05: And even within that set, [00:33:19] Speaker 05: Right? [00:33:20] Speaker 05: Limited redaction. [00:33:21] Speaker 05: This is a wholesale. [00:33:23] Speaker 05: You're running out of time. [00:33:25] Speaker 05: One last point. [00:33:26] Speaker 05: There is no pro se rule against, in the D.C. [00:33:30] Speaker 05: Circuit, there is no pro se rule prohibiting, this goes back to SEC versus Dresser, en banc in D.C. [00:33:38] Speaker 05: in 1980, no pro se rule against the disclosure of documents subpoenaed by the grand jury. [00:33:45] Speaker 05: Thank you. [00:33:59] Speaker 00: Thank you, Your Honor. [00:34:00] Speaker 00: I'd just like to make two quick points, one factual and one legal. [00:34:03] Speaker 00: On the factual point, the record here makes exceedingly clear that the full six million documents that we're talking about were produced in response to a grand jury subpoena. [00:34:10] Speaker 03: And were not obtained any other way? [00:34:15] Speaker 00: Correct. [00:34:15] Speaker 03: Were shared outside of that? [00:34:17] Speaker 00: Correct. [00:34:17] Speaker 00: So I would look at ER-104, which is a VW declaration that says that the only documents they produced to the government were produced in response to a grand jury subpoena. [00:34:24] Speaker 00: And that would look at ER-173. [00:34:26] Speaker 00: and 183 to 84, which are the government declarations, explaining again that the documents were produced in response to a grand jury subpoena, that with the exception of four pages, they contain labels saying that they were produced in response to a grand jury subpoena, making them identifiable on their face as grand jury subpoena documents. [00:34:40] Speaker 04: Council, so I want to make it very clear here. [00:34:43] Speaker 04: Your position is that so long as documents are produced pursuant to a grand jury subpoena, they are insulated [00:34:53] Speaker 04: from any FOIA request. [00:34:55] Speaker 04: Is that your position? [00:34:57] Speaker 00: No, Your Honor. [00:34:58] Speaker 00: If the documents are produced in response to a grand jury subpoena and are identifiable on their face as having been produced, I would encourage the court to look at the Bartko case or the LeBeau case probably from the DC Circuit. [00:35:08] Speaker 00: which explains this distinction. [00:35:10] Speaker 00: If you have some grand jury subpoena documents that aren't identifiable as such and are mixed in with a bunch of other documents, so you couldn't tell which ones were subpoenaed by the grand jury, then those might not be protected. [00:35:20] Speaker 00: But if looking at the document would tell you this was a document that was produced in response to a grand jury subpoena, then disclosing it would reveal a matter. [00:35:26] Speaker 03: So what about the plan? [00:35:28] Speaker 03: Is it OK if I ask? [00:35:30] Speaker 03: Sorry. [00:35:31] Speaker 03: But what about Mr. Kalber's position that they didn't know that's what they were even asking for? [00:35:37] Speaker 03: It was the government that sort of came in and said, look, you asked for these documents. [00:35:42] Speaker 03: Or I guess Volkswagen said, our disclosure only covers those things that were subject to the grand jury subpoena. [00:35:55] Speaker 00: Right. [00:35:55] Speaker 00: So the issue here is that all the documents, again, with the exception of those four pages of organizational charts, themselves contain on their face. [00:36:02] Speaker 00: And produce those four pages? [00:36:04] Speaker 00: Those four pages, I think we may well have other [00:36:08] Speaker 00: other FOIA exemptions, and also they may well implicate Rule 60, given the context in which the request has been made and the context in which they would have to be disclosed. [00:36:16] Speaker 00: But those four pages, I think, present a harder question than the other six million minus four pages, which themselves on their face make clear that they were produced in response to a grand jury subpoena. [00:36:27] Speaker 00: And then the one legal point, if I could have the court's indulgence, [00:36:30] Speaker 00: There really is no other case that we're aware of in which a court has ordered in response to a FOIA request that the government produced documents identifiable as grand jury subpoena documents. [00:36:40] Speaker 00: If Fund for Constitutional Avoidance is Professor Calvers' best case, I would encourage the court to go read it because it pages 868 to 870. [00:36:46] Speaker 00: The court addresses the Rule 6E question and makes it very clear. [00:36:49] Speaker 00: It sustains the Rule 6E withholding and makes clear that the documents, even if they weren't presented to the grand jury, if they were subpoenaed by the grand jury as exhibits or as potential exhibits, then revealing them would reveal a matter occurring for the grand jury. [00:37:03] Speaker 02: We thank both sides for their argument. [00:37:05] Speaker 02: The case of Lawrence Calbers versus DOJ and Volkswagen is submitted. [00:37:11] Speaker 02: And the final case is Carmen and Cisco versus Jackson National Life Insurance. [00:37:16] Speaker 02: That's submitted on the briefs. [00:37:18] Speaker 02: And the case and the court for this session stands adjourned. [00:37:24] Speaker 05: All rise.