[00:00:03] Speaker 00:
Case number 14-5215, Judicial Watch Inc.

[00:00:07] Speaker 00:
Appellant versus United States Department of Justice.

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Mr. Vakesha for the appellant, Mr. Cizak for the appellate.

[00:00:14] Speaker 00:
And is it Mr. Bekesha?

[00:00:15] Speaker 05:
Bekesha, yes.

[00:00:16] Speaker 05:
Good morning.

[00:00:17] Speaker 05:
May it please the court, Michael Bekesha on behalf of Judicial Watch.

[00:00:20] Speaker 05:
This case is rather simple.

[00:00:22] Speaker 05:
Judicial Watch sent a FOIA request to the government for a very specific set of records.

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The government searched for those records and found eight records responsive to Judicial Watch's request.

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The government's now withholding these eight records.

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However, unlike the typical FOIA lawsuit, the government isn't claiming one of the nine statutory exemptions.

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Instead, the government is withholding these records under two flawed lines of reasoning.

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First, the government argues that the district court's local rule prohibiting disclosure.

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Second, it argues that a recommendation by Judge Jackson during a status hearing prohibits disclosure.

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Neither argument is supported by facts or law.

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The government is improperly withholding records, and now we'll go into exactly why that is.

[00:01:04] Speaker 02:
Why isn't the first of the two arguments that you mentioned really an exemption three ground that it's otherwise properly withheld according to here the statute that authorizes the rules on ADR confidentiality?

[00:01:18] Speaker 05:
Exemption three doesn't apply because exemption three only applies to statutes passed by the legislature.

[00:01:24] Speaker 05:
So the local rules are not statutes passed by the legislature.

[00:01:29] Speaker 02:
But they're required by federal law as part of the setting up of the court adjunct ADR now.

[00:01:36] Speaker 05:
i think the rules are required yes but the specific language of exemption three and how the case laws case all plays out exemption three can only apply statutes they their specific requirements that are required to be taken by the government to claim exemption three status uh... they tell me what you're thinking about in that regard

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And the requirements that the government has to disclose which which statutes they are using to withhold under exemption three.

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They have to be very specific in nature.

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I do believe this court.

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that the district court.

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Has looked at this for some of the civil rules of the federal rules of civil procedure and has said those rules don't fall within exemption three because they're not statutes passed by Congress I think for the same reasons these local rules wouldn't apply as well.

[00:02:27] Speaker 01:
So so if the district court.

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that I want these all documents and everything relating to settlement negotiations to be, you know, protected and not discoverable in any proceeding.

[00:02:53] Speaker 01:
You would say that that would be a different case, how?

[00:02:59] Speaker 01:
Or you would be making the same argument?

[00:03:01] Speaker 05:
It would be a different case, Your Honor.

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In that instance, there would be a protective order preventing the disclosure of these records.

[00:03:07] Speaker 05:
Unfortunately, we don't have that in this case.

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If the government could have, or the House Committee, the other party in that litigation, could have went to the Court and asked for a protective order to prevent the disclosure of any of the records that were being transmitted between them.

[00:03:23] Speaker 01:
But if a judge

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decides that the protective order isn't needed because the local rule covers it, then why isn't that just as good as having a protective order?

[00:03:33] Speaker 05:
Well, that didn't happen in this case either, Your Honor.

[00:03:36] Speaker 05:
The judge in that specific case did not say there is no protective order here because the local rule applies.

[00:03:43] Speaker 05:
So that would be a different instance in this case as well, Your Honor.

[00:03:47] Speaker 01:
In this case... You're saying that Judge Jackson would have had to do that.

[00:03:50] Speaker 01:
It's not good enough that Judge Leon essentially came to that conclusion.

[00:03:54] Speaker 05:
that that's correct your honor because the protective order would be we have to be in place by judge jackson uh... judge leon didn't find that judge leon first found that the local rules apply local rules simply do not apply based on the face of language the common general just bracketing that for a moment and of course we want you to get to that but uh...

[00:04:17] Speaker 02:
I'm just curious about, so the statute, I think, that's relevant is 28 USC 652 D, which requires confidentiality provisions by local rule for confidentiality of the alternative dispute resolution processes and to prohibit disclosure of confidential dispute resolution communications.

[00:04:43] Speaker 02:
So it's basically a statute mandating

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something like the local rule here.

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And I guess I wonder if you have any cases that have anything like that form.

[00:04:53] Speaker 02:
I know you mentioned the federal rules cases, but there's not a statute mandating.

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You have to have federal rule 26, and it has to have this bottom line where there really is this statutory mandate.

[00:05:07] Speaker 05:
I haven't done that research, Your Honor.

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The government at the lower court never argued Exemption 3.

[00:05:13] Speaker 05:
We didn't brief that issue, so I'm not prepared to address that.

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Happy to go back and take a look at that court if the court thinks that's necessary.

[00:05:20] Speaker 03:
I don't see Exemption 3 invoked in the government's brief.

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It wasn't.

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It seems to me once they've distinguished between internal and external communications, Exemption 3 dropped out.

[00:05:31] Speaker 05:
That's correct.

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They originally claimed exemption 5, which would have been the deliver process for interagency.

[00:05:37] Speaker 03:
At that point, the statute dropped down.

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Let's put it that way.

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The FOIA dropped down.

[00:05:41] Speaker 05:
That's what appears to happen, yes, Your Honor.

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At no point has the government claimed exemption 3 in this case.

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They simply claim that the local rules apply.

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my client's position that local rule the local rules do not apply because the government the parties in that litigation were ordered into formal mediation on March 18th

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and all the records that are responsive to this FOIA request predate March 18th.

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All these records were created.

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The rule in question refers to both matters occurring during the mediation and matters occurring in connection with the mediation.

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That's correct, Your Honor.

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in connection with, Your Honor.

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And my client's position is that that in connection has to be once the parties are within the program.

[00:06:44] Speaker 03:
So if mediation's... What if there's a colloquy in judges chambers about referring the matter to mediation, and one side says, we really don't think that's useful here, the other side's proceeding in bad faith, blah, blah, blah.

[00:07:02] Speaker 03:
You don't think that's in connection with?

[00:07:03] Speaker 05:
That could be, Your Honor, but again, that's not the case we have before us today.

[00:07:08] Speaker 05:
What we have here are... That's correct, Your Honor, but we're not talking about that type of communication.

[00:07:17] Speaker 05:
We're talking about the two parties, in this case the executive branch in Congress, meeting, conferring, discussing these records that were responsive to a subpoena.

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They were not in the mediation

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in the formal mediation session.

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They hadn't even been ordered into it.

[00:07:34] Speaker 03:
So I understand that- What do you think the judge meant when she said, I don't want to know about this?

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You think she said, I don't want to know, but you can tell the Washington Post?

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I think she could have meant that.

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I think that- Really?

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Wouldn't that be ridiculous?

[00:07:46] Speaker 05:
I don't think so, Your Honor.

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I think the court had a specific case in front of her and she didn't want to know what the parties were saying outside of her courtroom.

[00:07:55] Speaker 03:
So it would be perfectly okay if they released the matter to the world and somehow she managed to avoid knowing about it.

[00:08:03] Speaker 05:
I imagine she assumed that was going to happen based on who the parties were and their desire to want to litigate everything in the media.

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If she thought that was going to be a problem and she wanted to prevent that, she could have done so.

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She could have put a gag order on the parties.

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She could have issued a protective order, as Judge Wilkin suggested, but she didn't do that.

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All she said was, you know, I want you guys to talk, but I don't want to know about it.

[00:08:28] Speaker 03:
So as Leon read this record, and to him it was lucid that she meant exactly that, that no disclosure was to be allowed at all.

[00:08:38] Speaker 03:
And if we agreed with you that it's not lucid, it would still be ambiguous, wouldn't it?

[00:08:46] Speaker 05:
I think it could be ambiguous.

[00:08:49] Speaker 03:
Yes, Your Honor.

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Judge Leon's opinion may not be the only viable view of this matter.

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Yours may as well.

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That's correct, Your Honor.

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these two.

[00:09:06] Speaker 03:
There's some uncertainty about what this order really means.

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Now that was also true in the Morgan case.

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What we did in the Morgan case was we said we recognize that it may be impossible to determine the scope and effect of the seal from the face of it and the circumstances attending its imposition

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Thus, in order to meet its burden of proof, the DOJ may need to seek a clarification from the court that issued the seal.

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Now, why shouldn't we remand this case to the district court so that the Justice Department can indeed petition Judge Jackson for a clarification?

[00:09:47] Speaker 05:
I think that would be entirely appropriate, Your Honor.

[00:09:49] Speaker 05:
Appropriate?

[00:09:50] Speaker 05:
Yes, Your Honor.

[00:09:51] Speaker 05:
I think if that's necessary... I think the government might agree with you.

[00:09:54] Speaker 03:
Do we have a settlement here?

[00:09:56] Speaker 03:
That could be possible, Your Honor.

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Bear in mind, you're saying that's appropriate.

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That's not in the public domain.

[00:10:01] Speaker 05:
Yes, Your Honor.

[00:10:02] Speaker 05:
I mean, in my client's position, our position is that if the proper steps were taken at the district court, if the parties and the court wanted a protective order, they could have sought that.

[00:10:12] Speaker 05:
So yes, if the government went to Judge Jackson and said, can we issue a protective order, here are the reasons why, she would make a determination.

[00:10:21] Speaker 05:
It's not entirely clear if her determination would be a protective order is proper under the rules in this instance.

[00:10:28] Speaker 02:
She may determine... Just along these very lines, I'm curious why this case, your case, you didn't file it as a related case.

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to that case for just these reasons.

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It feels a little like something that is related to an ongoing matter is being brought before a separate judge.

[00:10:51] Speaker 02:
It feels a lot.

[00:10:51] Speaker 03:
That happened in the Maryland DC case, but these are both DC cases.

[00:10:56] Speaker 05:
They are, Your Honor.

[00:10:57] Speaker 05:
I think they weren't filed as a related case, because FOIA cases tend to be very distinct and separate from other issues.

[00:11:06] Speaker 03:
Who makes that determination, whether it's a related case?

[00:11:08] Speaker 05:
The related case, how it happens would be the plaintiff would file a related case form with the district court.

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It would be assigned to the original judge that has what would be deemed the related case.

[00:11:19] Speaker 05:
But you didn't, does plaintiff do that?

[00:11:21] Speaker 05:
We did not, Your Honor.

[00:11:22] Speaker 03:
And was it not open to the government to do that?

[00:11:24] Speaker 05:
The government has an obligation as well.

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Any party before the court has an obligation, if they believe it's a related case, to file such a form.

[00:11:32] Speaker 05:
The district court then has the first opportunity to decide whether or not it is a related case.

[00:11:37] Speaker 03:
I suppose the district judge, Leon, could have done the same thing.

[00:11:41] Speaker 05:
He probably could have, Your Honor.

[00:11:44] Speaker 02:
I had interrupted you when you were about to say why you thought if it were brought before Judge Jackson that she might not find that she had authority to enter a protective order.

[00:11:56] Speaker 05:
well i think we just don't know what would have happened and we don't know what would happen which is why i think it is appropriate uh... for the case to be remanded and have it go through that process uh... i'm just not a hundred percent sure what jurisdiction she would have to seal these records that may have not been before her uh... she may very well have the authority i just don't know i think it's i just don't i just don't want to say we need to assume that i think it would have its own process it's a question of her interpreting her own order

[00:12:24] Speaker 05:
That's correct, Your Honor.

[00:12:26] Speaker 05:
So I think that's important to remember, and none of that has happened yet in this case.

[00:12:30] Speaker 02:
Is it her interpreting her own order, or does she have, because the case is still pending before her, the motions made to, you know, to prevent disclosure of those, to grant her new order?

[00:12:42] Speaker 05:
She may, Your Honor.

[00:12:43] Speaker 05:
I'm not saying that she doesn't have the jurisdiction.

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I'm just saying it's a question that should be raised and would be important to be raised.

[00:12:51] Speaker 03:
Yes, I agree.

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But since the argument here, your argument, turns a good deal on timing these documents having been created prior to the formal opening of the mediation, a protective order now

[00:13:09] Speaker 03:
would presumably not be known pro-tunk.

[00:13:12] Speaker 03:
It's an interpretation of the prior order that would relate back.

[00:13:16] Speaker 05:
That's correct, Your Honor.

[00:13:18] Speaker 05:
I think any type of order that Judge Jackson now issued would necessarily involve determining whether or not these records fell within the formal mediation process.

[00:13:29] Speaker 05:
Her determination would be strictly on whether or not she believes it's important that these records not be disclosed.

[00:13:35] Speaker 03:
And so... Wouldn't it be a question of whether when she said don't tell me, she meant don't disclose it to the world because I'm going to know?

[00:13:42] Speaker 05:
That could be, Your Honor, or if she issued a protective order today and the government still hasn't turned over those records, I think the government would have an argument to say that we cannot turn these records over now because there's a protective order.

[00:13:57] Speaker 05:
Now, I don't want to

[00:14:01] Speaker 05:
I agree with that 100%.

[00:14:02] Speaker 05:
I would have to look at the case on that, but I think there would be a strong argument there.

[00:14:07] Speaker 05:
I mean, I think when plaintiff brought this case, the plaintiff's position, our position was that none of this actually happened, that the local rule didn't apply, exemption 3 didn't apply,

[00:14:18] Speaker 05:
There was no true protective order to the extent there is one, as Judge Ginsburg, as you said, it's ambiguous, which in this favor favors disclosure.

[00:14:28] Speaker 05:
So nothing has happened.

[00:14:30] Speaker 05:
And so these records are improperly being withheld.

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Of course, circumstances could change.

[00:14:35] Speaker 02:
I'm a little mystified because these are, as you said, records that have already crossed between the two parties in the case.

[00:14:44] Speaker 02:
Why haven't they been available to you from the congressional side?

[00:14:50] Speaker 02:
If there are documents that the Justice Department has, could, in your view, people, the oversight staff on the FOIA?

[00:14:58] Speaker 05:
Yes, Your Honor.

[00:14:59] Speaker 05:
FOIA doesn't apply to Congress to the extent that the public may ask for records at Congress.

[00:15:05] Speaker 05:
It's completely up to Congress to decide whether or not it's completely voluntary whether or not they disclose.

[00:15:10] Speaker 05:
Have you sought them?

[00:15:11] Speaker 05:
I'm not sure if we have, Your Honor.

[00:15:14] Speaker 01:
What is the status of the litigation between Congress and the Justice Department before Judge Jackson?

[00:15:22] Speaker 05:
I believe Your Honor that summary judgment briefing has concluded and it is awaiting a final ruling.

[00:15:30] Speaker 05:
There's been a lot of

[00:15:32] Speaker 05:
briefs filed in that case, and so I'm not 100% sure exactly what the procedure is, but best I can tell, that's where we are in that case.

[00:15:40] Speaker 05:
Mediation is over.

[00:15:41] Speaker 05:
Mediation failed.

[00:15:43] Speaker 05:
My understanding is the parties went to mediation a couple times, and nothing happened, and briefing proceeded.

[00:15:51] Speaker 05:
But one last point to make, Judicial Watch did not request the records of the communications between the parties after they were in the formal mediation process, because we recognize that the local rule does apply.

[00:16:03] Speaker 01:
To the extent that you're arguing that the principles of FOIA favor disclosure, et cetera, et cetera, do those principles really

[00:16:15] Speaker 01:
Align with the facts here where you're trying to get documents related to settlement discussions and or a mediation where really all of the case law and all of the general principles are that

[00:16:34] Speaker 01:
you know, there's a privilege there in the sense that you don't want to discourage settlement.

[00:16:41] Speaker 01:
We want to encourage settlement, and you potentially discourage settlement if you make, you know, discussions available to the world.

[00:16:53] Speaker 05:
I think there is a concern there generally, Your Honor, but I think

[00:16:58] Speaker 05:
That may be a good policy to have these records not be able to be disclosed.

[00:17:03] Speaker 05:
However, that is not what Congress has said.

[00:17:06] Speaker 05:
If Congress thinks it's important, Congress can pass legislation adding that to the list of the nine clearly delineated FOIA exemptions.

[00:17:14] Speaker 05:
I think if the court was concerned about that, the court potentially may enter protective orders when necessary.

[00:17:23] Speaker 05:
to prevent that disclosure.

[00:17:25] Speaker 05:
The problem with that is it's a policy choice, and right now Congress has decided that FOIA is a disclosure, not a withholding statute, and that we need to abide by the nine clearly delineated exemptions.

[00:17:38] Speaker 05:
And within those, you have exemption three for specific statutes, which doesn't apply in this case.

[00:17:44] Speaker 05:
You have exemption five, which is deliver of process, which covers most general non-discoverable material.

[00:17:51] Speaker 05:
that simply doesn't apply in this case as well.

[00:17:54] Speaker 05:
But if it's good policy, Your Honor, then Congress needs to fix that.

[00:17:58] Speaker 05:
I think in this case, at this time, the records are being improperly withheld under the statute as ran and as applied by the courts.

[00:18:06] Speaker 01:
I guess, Dan, I don't understand your argument, because is your argument that

[00:18:11] Speaker 01:
These documents aren't covered by the local rule, or is it your argument that even if they are covered by the local rule, that's not a basis for withholding them from disclosure?

[00:18:21] Speaker 05:
Our argument is that these records are not covered by the local rule because they were created prior to the parties entering the formal mediation.

[00:18:28] Speaker 01:
So you're not making the argument that even if they are covered by the local rule, that's not a valid basis for withholding?

[00:18:35] Speaker 05:
it may be your honor however that's not the case that simply isn't the case here today we're not talking about records that were created after they entered the formal mediation process you said that maybe and i wasn't sure what you're agreeing with he said even if they are under the local rule are you saying that's not a valid basis

[00:19:02] Speaker 02:
And I heard you to be saying you don't need to argue that, because you think they're just not under the local rule.

[00:19:07] Speaker 02:
That's correct, Your Honor.

[00:19:08] Speaker 02:
And therefore, if we found that they were, you would have to live with that.

[00:19:13] Speaker 05:
I think that's correct, Your Honor.

[00:19:17] Speaker 03:
Would you go further in your brief?

[00:19:21] Speaker 05:
Looking back, I think we may have hinted at that.

[00:19:24] Speaker 05:
I don't think it was fully explained in fully brief.

[00:19:27] Speaker 05:
I think our position really is these don't fall within the local rule, because they were created beforehand.

[00:19:32] Speaker 02:
We'll give you a couple minutes for rebuttal, but let's hear now from Mr. Sinczak.

[00:19:41] Speaker 04:
Thank you, Your Honor.

[00:19:42] Speaker 04:
May it please the Court, Jerry Sinczak, appearing on behalf of the Department of Justice.

[00:19:46] Speaker 04:
I think I'd like to just jump right in with this question that's been raised about a remand to Judge Jackson about a clarification.

[00:19:53] Speaker 04:
That is not a necessary court here.

[00:19:56] Speaker 04:
What we have here is a definitive ruling from a judge in the District Court, Judge Leon, on the applicability of a local rule.

[00:20:03] Speaker 04:
specifically local rule 84.9 and he has opined.

[00:20:07] Speaker 04:
that that rule applies here, and in certainly any other circumstance, that would be entitled to deference, and it's entitled to deference here.

[00:20:14] Speaker 04:
It was supported by a number of factors, as Judge Leon pointed out in his opinion, including the text of the rule, which is quite broad, the purpose of the rule, which is to protect open and frank communications.

[00:20:27] Speaker 04:
It's protected by the actions of the parties who clearly believed that the information was confidential.

[00:20:34] Speaker 02:
How do we know that?

[00:20:35] Speaker 04:
In the joint status report that they filed in March, they made that clear.

[00:20:41] Speaker 04:
And there's certainly nothing in the record to suggest that either party suspected otherwise.

[00:20:47] Speaker 04:
And that might be the reason why Judiciary Watch didn't approach Congress, because they are under the same obligations under Local Law 84.9 and Judge Jackson's command.

[00:20:58] Speaker 04:
And then I'd even go further, even if

[00:21:02] Speaker 04:
we looked at specifically not just Rule 84.9, but Judge Jackson's command.

[00:21:07] Speaker 04:
As this court made clear in Morgan, it's not necessary to seek a clarification if it's possible.

[00:21:13] Speaker 04:
As Judge Ginsburg, as you quoted, it said only if it's impossible to determine based on extrinsic evidence, the text of the order, the actions of the parties, other local rules.

[00:21:24] Speaker 04:
And here we have all of those factors supporting the view that these were confidential communications and Judge

[00:21:31] Speaker 04:
Jackson expected them to remain confidential and so forth.

[00:21:36] Speaker 02:
Let me just play devil's advocate and make the contrary arguments on each of those points and get your reaction on Judge Jackson's comment which is I think might be even a stretch to read it as an order if she says I don't want to hear

[00:21:51] Speaker 02:
It seems to me that that might be very parallel to that many judges don't want to know anything or be involved in any settlement negotiations.

[00:21:58] Speaker 02:
If there are settlement negotiations, they send it to a magistrate or in a court like ours where we have mediators send it to a media.

[00:22:04] Speaker 02:
And part of that is they don't want their impartiality to be tainted by any knowledge of what kinds of concessions the parties might be willing to make and what

[00:22:12] Speaker 02:
you know, what's going on between when they want to make this decision on the law.

[00:22:17] Speaker 02:
And the notion is not so far-fetched in my view to think that she says, I don't want to hear that.

[00:22:21] Speaker 02:
I'm not going to read anything that comes out in the press on this.

[00:22:24] Speaker 02:
And it's analogous to a juror sitting on a case who, you know, we don't have to

[00:22:29] Speaker 02:
prevent the press from covering a case in order for a juror to fulfill that neutral's obligation to remain impartial.

[00:22:38] Speaker 02:
They don't read.

[00:22:38] Speaker 02:
They won't listen.

[00:22:39] Speaker 02:
They'll tell people who start to talk to them about something I don't want to know.

[00:22:42] Speaker 02:
So that's an understanding of her order that I find very commonsensical, or at least it is arguably commonsensical or even compelling.

[00:22:53] Speaker 04:
Your Honor, I think it's important in answering your question to keep in mind what communications we're talking about here.

[00:22:58] Speaker 04:
We're talking about settlement communications, and I think Judge Wilkins pointed out the baseline principle I think all litigants in courts would take is that settlement communications need to be kept confidential.

[00:23:10] Speaker 02:
There's no privilege for settlement communications.

[00:23:13] Speaker 02:
That's why we're here, right?

[00:23:14] Speaker 02:
I mean, in the Sixth Circuit, there's recognition of settlement privilege.

[00:23:17] Speaker 02:
In Goodyear, in other courts, not.

[00:23:19] Speaker 02:
We don't have that.

[00:23:20] Speaker 02:
Are you asking us to recognize that?

[00:23:22] Speaker 04:
Well, your court doesn't have to recognize a settlement privilege, of course.

[00:23:25] Speaker 02:
But there isn't one, OK?

[00:23:26] Speaker 04:
So I don't know.

[00:23:27] Speaker 04:
I mean, in the court itself.

[00:23:29] Speaker 02:
And so I was asking about the order and the interpretation of the order, because then we can talk about the rule, which I think is the more general confidentiality interest.

[00:23:35] Speaker 02:
But in terms of the order, I've given you a characterization of what she was saying.

[00:23:40] Speaker 02:
And how would you say, no, no, that order covers as broad or as different?

[00:23:45] Speaker 04:
I would say that, you know, given the nature of the communications themselves,

[00:23:52] Speaker 04:
settlement communications, and all the background principles that surround that.

[00:23:56] Speaker 04:
Certainly the Sixth Circuit case that you mentioned discusses them, and I think other cases have also discussed the general principle that settlement communications, it's necessary to keep them confidential, and I think that's the background principle that all litigants and courts operate from.

[00:24:10] Speaker 02:
But she wasn't asserting a settlement privilege, and you're not arguing for a settlement privilege, and we don't have case law in our circuit

[00:24:17] Speaker 02:
recognizing settlement privilege, so I'm not sure what you're saying about the scope of her order.

[00:24:22] Speaker 04:
Well, first of all, she is operating from the backdrop of the local rules, which... Yes, okay.

[00:24:26] Speaker 02:
Well, let's talk about the local rule then.

[00:24:28] Speaker 02:
So, local rule 84.9 is one way of understanding it.

[00:24:32] Speaker 02:
is that when Congress set up quartered ADR, some parties were opposed to that because they said, well, we're going to have some civil servant that we haven't chosen as a mediator sitting on a case.

[00:24:48] Speaker 02:
And how do we know that person isn't going to blab to the judges, to the public?

[00:24:52] Speaker 02:
We don't trust that person who we haven't hired.

[00:24:55] Speaker 02:
And so in order to sort of

[00:24:57] Speaker 02:
grease the way and allow that legislation to go through, there's a portion of it that says, no, no, no, everything in that will be confidential.

[00:25:06] Speaker 02:
But that doesn't create a general settlement privilege.

[00:25:08] Speaker 02:
That's because when we parties are talking, we can agree that we're going to keep it confidential.

[00:25:13] Speaker 02:
And we have a joint interest, and we're not going to violate that.

[00:25:17] Speaker 02:
as parties not subject to FOIA can so agree or hire someone who they think is going to keep their confidentiality.

[00:25:24] Speaker 02:
The concern is when you have this civil servant that's been foisted on you.

[00:25:29] Speaker 02:
So there is a reason to read that quite narrowly.

[00:25:32] Speaker 04:
Respectfully, Your Honor, we would disagree in terms of, and we can talk about whether in other circumstances,

[00:25:39] Speaker 04:
the rule should be read narrowly, or maybe the facts wouldn't support a finding that the rule applies.

[00:25:43] Speaker 04:
But certainly, in the circumstances presented here, where you have repeated admonitions from Judge Jackson that mediation will be ordered at any time, and the parties are, in a sense, accepting their own

[00:25:58] Speaker 04:
mediation efforts or own settlement talks as in lieu of those that were and then eventually it was ordered and then those talks of course became part of the settlement, became the foundation for the formal mediation that was ordered.

[00:26:11] Speaker 04:
Under those circumstances, we're not talking about the general case but very specific circumstances in which

[00:26:17] Speaker 04:
Judge Leon then concluded they were made in connection with settlements, so perhaps there could be other circumstances like Your Honor's positing where there wasn't as close a connection to mediation, but here it's clearly parties understanding that these are being undertaken in lieu of in connection with the mediation that was eventually ordered.

[00:26:40] Speaker 02:
You said those talks became part of that mediation.

[00:26:44] Speaker 02:
Do we know whether these actual documents, these eight documents, were ever given to the court mediator in the process of the discussions?

[00:26:53] Speaker 04:
Yes, four of the eight were given to the mediator.

[00:26:58] Speaker 04:
Two letters, I believe, and two draft settlement agreements.

[00:27:04] Speaker 02:
And do we know the nature of the others?

[00:27:05] Speaker 02:
Were they earlier drafts or other drafts of settlement?

[00:27:08] Speaker 04:
There were other letters in other settlement drafts.

[00:27:11] Speaker 04:
I'm not sure of the exact timing, but that may be the case.

[00:27:16] Speaker 04:
But again, just to reiterate here, I think as I was pointing out here, we have a definitive ruling from Judge Leon in the district court on the application of a local rule.

[00:27:28] Speaker 04:
And a number of factors support that application, including the behavior of the parties, the purpose of the rules, the text of the rule, which is quite broad.

[00:27:37] Speaker 04:
And that ruling here is certainly entitled to death.

[00:27:43] Speaker 04:
If your honors have no further questions, we'd ask that you defer.

[00:27:49] Speaker 02:
Thank you.

[00:27:49] Speaker 02:
Thank you, Mr. Sendzak.

[00:27:51] Speaker 02:
Mr. Mikesha, if you wanted to have a minute for rebuttal.

[00:27:56] Speaker 05:
Thank you, your honor.

[00:27:57] Speaker 05:
Real quick, council talks about how mediation could have been ordered at any time.

[00:28:02] Speaker 05:
That's in every civil litigation at the district court.

[00:28:06] Speaker 05:
Mediation is always a possibility.

[00:28:08] Speaker 05:
The court could always, to respond to order into mediation.

[00:28:11] Speaker 05:
So I don't think just because mediation is a possibility, it means it was in connection with it.

[00:28:17] Speaker 05:
Then with regard to the four of the eight letters that were eventually submitted to the mediator, the local rule

[00:28:25] Speaker 05:
Local Rule 84.9c3 specifically states that information which is obtained through discovery or other means outside the mediation process shall not be rendered inadmissible or non-discoverable because it was used or presented in mediation.

[00:28:43] Speaker 02:
But these weren't obtained through discovery or otherwise.

[00:28:46] Speaker 02:
They were developed by the parties in the process of settlement.

[00:28:48] Speaker 05:
I think they were developed by the parties outside of the mediation process.

[00:28:53] Speaker 05:
So I think that rule would apply in this instance, that just because the records were eventually handed over to the mediator doesn't mean that they're protected.

[00:29:01] Speaker 05:
It's much like attorney-client privilege, just because the client provides a letter.

[00:29:05] Speaker 02:
Or a work product, maybe, is a good analogy.

[00:29:08] Speaker 02:
A work product, it's the attorney's thinking that is protected, not the underlying facts.

[00:29:13] Speaker 02:
And I don't think we would disagree, or I don't think the government would disagree with that,

[00:29:17] Speaker 02:
if an attachment to the settlement was, let's say, a damages computation, and they put that package together, here's a few pieces of evidence, and here's our thoughts on it, and gave it to the mediator.

[00:29:27] Speaker 02:
It's only the here's our thoughts on it part, and the fact that it was given to the mediator that would be privileged by 84.9, but I think you're exactly right, not the underlying.

[00:29:35] Speaker 05:
Not the underlying documents, which means the Justice Department may have violated the mediation protective order by telling us that the records were produced to the mediator.

[00:29:45] Speaker 05:
because the fact that they were produced to the mediator is the material that's being privileged under the rule, not the material that they provided.

[00:29:56] Speaker 05:
But again, last point on that, it's only four of the eight documents to the extent that the court thinks that argument has some weight for the documents still weren't given to the mediator and should be disclosed.

[00:30:11] Speaker 05:
No further questions?

[00:30:12] Speaker 05:
Thank you.

[00:30:13] Speaker 02:
Thank you.

[00:30:13] Speaker 02:
The case is submitted.