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Case number 15 as 5051, National Association of Criminal Defense Lawyers Appellate versus United States Executive Office for United States Attorneys and United States Department of Justice.

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Mr. Roth for the appellate, Mr. Yellen for the appellate.

[00:00:30] Speaker 05:
Good morning, Your Honors.

[00:00:32] Speaker 05:
Yakov Roth for the National Association of Groups.

[00:00:34] Speaker 01:
Can you wait on the clock?

[00:00:36] Speaker 01:
Oh, yeah, I want to just let it.

[00:00:37] Speaker 01:
Just so you can follow up.

[00:00:47] Speaker 02:
Sure, you thought the whole crowd was here to hear you.

[00:00:49] Speaker 06:
I don't mind.

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Still plenty of people here.

[00:00:52] Speaker 02:
Still got a good audience today.

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That's the norm.

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Okay.

[00:00:56] Speaker 05:
Thank you.

[00:00:57] Speaker 05:
Good morning, Your Honors.

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Yakov Roth for the National Association of Criminal Defense Lawyers, and I hope to reserve three minutes for rebuttal.

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Your Honors, in the wake of the Senator Stevens prosecution, DOJ committed to certain internal reforms, and among them was the creation of the Blue Book, a new educational manual that DOJ created to ensure that its prosecutors understood and complied with their disclosure obligations.

[00:01:23] Speaker 05:
That manual is not protected as work product.

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Of course, we don't dispute that prosecutors are entitled to keep secret their trial preparation materials, their trial strategy, just like any other lawyer.

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That's how the adversarial system works.

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We're talking here about a comprehensive manual distributed to every prosecutor and paralegal in the department instructing them on how they should be complying with duties that attach to every prosecution that they undertake.

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That's just not the type of strategy that work product doctrine protects.

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Rather, it's the type of government policy that FOIA requires to be disclosed.

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I think, Your Honor, the closest analogy in this Court's cases is the Jordan decision.

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That concerned a DOJ manual respecting how prosecutors ought to exercise their discretion in making charging determinations.

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Of course, that was written by lawyers.

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In some sense, it was prepared in anticipation of prosecutions.

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And in some sense, it could have been described as strategic.

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I mean, the way prosecutors charge cases has clear strategic implications on things like plea bargaining, for example.

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It could affect sentencing.

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Nonetheless, this court ruled that does not constitute work product.

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That's general guidance on how prosecutors should carry out their duty to execute the law.

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It's not the type of case-specific tactical materials that lawyers prepare in order to advance their adversarial litigation interests.

[00:02:58] Speaker 01:
What do we do with In Gray Seal, which certainly takes us away from any suggestion that you have to be looking at a specific claim, and you can be operating to protect the institution,

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with an understanding, and it's in anticipation of potential litigation, all you don't have any specific case in mind.

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I mean, in Racile, it paints a very different picture.

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We don't have to focus on whether or not this is a specific claim.

[00:03:25] Speaker 05:
I think you're absolutely right, Your Honor.

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Sealed case is the most recent word from this court on this type of issue.

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And the distinction that sealed case drew was when you are talking about materials that are prepared by government lawyers in a defensive capacity,

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to prevent an adverse judgment against the agency to protect the agency, then you don't need to have the type of specific claim that you would require in a situation where the agency lawyer is acting as a prosecutor and enforcing the law.

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And that's because, I think that's because, when the agency is acting in a defensive capacity,

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The considerations are much more inherently adversarial.

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The agency is thinking, OK, what argument am I going to make to the court?

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What arguments should I not make to the court?

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What cases should I cite to the court?

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That looks much more like the type of material that is traditionally considered work product.

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That's like the manual at issue in the Schiller case.

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On the other hand, when the materials are produced, not to help protect the agency in a defensive way, but to guide prosecutors on how they should be carrying out their obligations, their constitutional obligations, their statutory obligations, or their ethical obligations.

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That's something very different.

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So do you think, is there any situation in which a document, let's say a document is produced in the context of a particular case,

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and the the the probably prosecutor on the case tells one of the line attorneys on the case and i don't know for purpose of this case exactly what i'm supposed to be doing in terms of discovery obligations can you write me a memo that tells me how i'm supposed to handle my discovery obligations in this case i'd like to obviously comply with

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the obligations that I have under the Constitution under department policy.

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At the same time, I don't want to will and nearly give up stuff that's going to cost us the case.

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So write me a memorandum that kind of intermediates this and that tells me here's what my obligations are and here's the best way to carry out that consistent with my responsibility to bring this prosecution in a manner that's going to bring about a favorable result for the government.

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Right, I think that would be work product because I think

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All the decisions say that when you are acting in the context of a specific litigation, a specific prosecution.

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The distinction is escaping me because what's the meaningful difference between in a situation in which you're already in a specific case and the document that's produced is a 340-page memorandum that tells the person, here's the discovery obligations and here's how you comply with them, and one in which before a specific case starts,

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A litigator says, I'm getting a bunch of cases in this area.

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In fact, all I do is litigate cases in this area.

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I'd like to know what my obligations are going to be in every single one of those cases.

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So write me an overarching memo that tells me what to do in every single one of those cases.

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Is it really a talismanic distinction between those two such that the document could look exactly the same?

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I think there is a distinction there, Your Honor.

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I think that what the cases are trying to get at is separating out the policy from the type of materials that you produce when you're in the litigation.

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And I think the general sort of, maybe it's more of a proxy than anything else, but when you are in the context of a litigation,

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even if the memo you produce is an objective neutral memo rather than a tactical memo, we understand that the lawyers, when they're acting in that context, are much more necessarily in the adversarial mode.

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They've already descended to the situation of specific case.

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But my hypothesis is one in which the macro memo that's in advance of any particular piece of litigation, but that's in the context of litigation that's always ongoing, because that's all this agency does,

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It's absolutely to a moral certainty going to be used in specific cases.

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That's its whole purpose.

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It's supposed to take it one step further, and in the 340 page memorandum, the attorney dutifully tells the prosecutor, here's the best arguments you could make on this issue, here's the best cases that the other side might cite in opposition to us, and here's the way that I would navigate those shoals.

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and puts that, now that seems like something, man, if I was on the other side, I'd love to have that, because it's already telling me the best cases that I could use at my disposal.

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But it sounds to me like what you're saying is if that's done in advance of a particular case, the fact that it's itemizing a bunch of cases, including the best ones for the other side, doesn't matter.

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It's not work product.

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I think that's right, Your Honor, and I think that's essentially like coastal states.

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I mean, those were memos that were produced in advance of any particular litigation, respecting how a statute or regulation would be applied by the law.

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But I think the distinction is that in a situation like coastal states, the reason you have the specific claim requirement come into issue is because you're trying to gauge

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How firmly is litigation on the minds of the people that are preparing the document?

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You don't have to engage that in a situation like this, because the only reason a document like this is produced is to be used in litigation.

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It's a litigation manual.

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So you don't need the specific claim part of it.

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sort of drops out of the equation because the proxy for which the specific claim requirement is being used is absent.

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This is all litigation.

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It's telling people how to do litigation.

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That's right.

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And that is what DOJ does.

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I think that's why this court has said we can't apply the work product doctrine that broadly

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Because that would mean basically everything DOJ produces.

[00:09:01] Speaker 06:
No, I don't think it would have to because that has to be right and I take that's a good point.

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I take your point on that.

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It can't be that everything DOJ does is work product because DOJ is in the business of litigation.

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There's all kinds of things.

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But when DOJ does, when DOJ produces a document that is, by your own assumption, a manual on how to litigate a case.

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But they just do it in advance of any particular case.

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They talk about how to litigate a bunch of cases.

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Right.

[00:09:24] Speaker 05:
Well, let me let me just try to distinguish two different things, because we can talk about litigation manuals in two different ways.

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I do want to distinguish a situation where manual or materials are directed towards how the lawyer should be.

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presenting their arguments to the court, how they should be defending.

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So the criminal defendant files a motion to compel.

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And this is a manual telling you, here are the good arguments to make in response to the motion to compel.

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I agree.

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That does start to look much more like Schiller, much more like traditional work product.

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That's not our understanding.

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Even if it's done in a manual that's produced in advance of any particular case?

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Correct.

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I mean, that's what Schiller was.

[00:10:02] Speaker 05:
Schiller wasn't.

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So then if that's true, then what we're talking about is what kind of stuff is in the document.

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Not that it's produced in advance.

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It's a guide to getting a bunch of cases as opposed to how to handle one case.

[00:10:12] Speaker 05:
I think it's absolutely both.

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I mean, we have to first establish that it was not produced for a specific litigation.

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I think we've certainly made that showing.

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then I think the court has to look at what is in there and what is its function.

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And I think the critical fact on that is this was, I mean, we haven't seen the book, so I can't tell you.

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But it was certainly presented as we understand there have been issues with compliance, and we want to have better training to ensure that the prosecutors understand their obligations and comply with their obligations.

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And so we are going to create this manual that will

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advance those goals.

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But here's what the affidavit says.

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And I know that you don't have the document, so you can't tell me that the document doesn't actually bear resemblance to this.

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But this is the description that we take, which is this is a JA 85 paragraph 21 of one of the declarations.

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I think it may be the first declaration.

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The document describes the types of claims defense counsel have raised and could raise regarding different discovery issues or the tactics they could employ, the arguments prosecutors can make to respond,

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they should take to counter defense counsel tactics and protect government investigations, the limitations of certain arguments, compilations of cases that prosecutors can use to support different arguments, cases illustrating potential pitfalls that they should avoid, and arguments prosecutors could make.

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That sounds like the type of thing we were just discussing that would be considered work product.

[00:11:37] Speaker 05:
It may be.

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It may be.

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I think it's a little bit ambiguous, because I think the same types of material can be presented in different ways.

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And it's not exactly clear from that description how it's presented.

[00:11:48] Speaker 02:
Shouldn't you have a similar description of a text book on the open market for how to prosecute a case?

[00:11:54] Speaker 05:
Exactly, Your Honor.

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Would that make it into attorney work product?

[00:11:58] Speaker 06:
I don't think it would, Your Honor.

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Because if somebody produced, if somebody did it in the context of a specific case and say, hey,

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I'm going to pay you $800 an hour, law firm X, to produce for me a guide on how to litigate this case.

[00:12:15] Speaker 06:
It's true that it could have been published as a textbook, but it was produced in the context of a particular case as a guide to how to litigate it.

[00:12:20] Speaker 06:
Would it not be a work product?

[00:12:21] Speaker 06:
Even if it could be, it could very well be Wright and Miller.

[00:12:23] Speaker 06:
It could be a treatise.

[00:12:25] Speaker 05:
Your Honor, I don't think it's that unusual in work product cases for the answer to depend on the form in which the material is created.

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So I think, yeah, we have a rule, specific case.

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You're focused on the specific case.

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We're going to assume that's within the adversarial system.

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Putting that aside and looking just at the general materials, the general manuals, then I think we need to have the further inquiry into, well, what exactly is it doing?

[00:12:50] Speaker 05:
Is it saying,

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prosecutors, you should disclose this type of material.

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Here's a bunch of cases that say that.

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You should not disclose this type of material.

[00:12:58] Speaker 05:
Here's a bunch of cases that say that.

[00:13:00] Speaker 05:
I don't think that would count as work product, because that's directed at how the prosecutors should be carrying out their duty to execute.

[00:13:07] Speaker 02:
And what you're asking here would not foreclose the possibility that the government could assert that some parts of the manual should be redacted?

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if there are things that do appear to be cocaine.

[00:13:19] Speaker 05:
Absolutely, Your Honor.

[00:13:20] Speaker 05:
It may be a segregability issue.

[00:13:22] Speaker 02:
That's another issue for another day, as to whether there could be a segregability.

[00:13:26] Speaker 05:
That would be an issue on remand.

[00:13:28] Speaker 05:
Yeah, if there are parts of the manual, and there may well be parts of the manual, that sort of veer from the instruction and the education on how prosecutors should be doing their job in making their disclosures towards, OK, let's say you mess up, and the other side files a sanctions motion.

[00:13:43] Speaker 05:
Here's some tips on how to defend yourself.

[00:13:46] Speaker 06:
That starts to look like schiller material.

[00:13:49] Speaker 06:
I have to say the distinction between those two categories is hardly black and white.

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How you should do your job versus whether you might suffer sanctions because you're not doing your job in the way you should do your job.

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They seem like almost flip sides at the same coin.

[00:14:01] Speaker 05:
I would agree it's not a bright line rule.

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But I think you need some line to distinguish the policy from the more tactical considerations.

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I think that's where the cases suggest the line should be drawn, because it respects the capacity in which the lawyer has been acting in producing the materials.

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Is it in its prosecutorial capacity, or is it more to protect the agency against some sort of interest?

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So if we were to, as Judge Santel suggested,

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to allow for segregability analysis, then presumably we'd have some description as to how you define what's within and what's without.

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And that's where the rubber hits the road is how do you do that description.

[00:14:44] Speaker 05:
Right, and I think that's what the district court needs from this court, because I think the district court's interpretation of work product was too broad, in the sense that the court mentioned this distinction between offensive and defensive, or prosecutorial and defensive, but then took the view that it's all defensive.

[00:15:03] Speaker 05:
Excuse me?

[00:15:03] Speaker 02:
The difference between offensive and defensive, is that the distinction?

[00:15:06] Speaker 05:
Well, that's part of the distinction.

[00:15:09] Speaker 02:
Education and training on the one hand, and preparation for litigation on the other hand.

[00:15:15] Speaker 05:
I think there are a lot of different ways to make kind of similar points.

[00:15:19] Speaker 05:
But I think the district court, missed all of that, said, no, this is all defensive, because if you comply with your obligations, then you won't be sanctioned.

[00:15:26] Speaker 05:
I mean, that's always true.

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That's true for any guidance material that an agency would put out.

[00:15:31] Speaker 05:
Yes, but that's not why they're creating it.

[00:15:35] Speaker 05:
Prosecutors have to comply with their disclosure obligations, whether or not that's ever going to be subject to judicial review, whether or not that's ever going to be litigated.

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That's just their ordinary course of their duties.

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And so if the book was created in order to further that interest, the interest in proper compliance and training, that's not the product.

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There are parts of it that are directed towards how to defend yourself in the situation of, OK, it's now for the court, and the court is deciding

[00:16:04] Speaker 05:
whether you violated your obligations, then I think there's room for second opinion.

[00:16:09] Speaker 06:
Can I ask this question, which is that one aspect of the work product doctrine, at least as described by the Supreme Court in Hickman, and especially if you look at Justice Jackson's opinion, which talks about

[00:16:21] Speaker 06:
premising your litigation on what's borrowed from your adversary, on your adversary, is the notion that one side shouldn't get the benefit of the fruits of the other side's legal research.

[00:16:33] Speaker 06:
And one thing that we see in the declaration, I know you haven't seen the book, but one thing that the declaration says, and this is at JA106, is that the blue book contains, quote, contains information to represent the government litigation, such as comprehensive

[00:16:45] Speaker 06:
A comprehensive set of strategic considerations and procedures, extensive compilations of cases to support different arguments and contrary authority, the limitations of some of these arguments, et cetera.

[00:16:56] Speaker 06:
So what the affidavit is asserting is that it contains extensive compilations of cases to support various arguments.

[00:17:03] Speaker 06:
And does that start to sound like work product to you, since that seems like if one party has compiled an extensive compilation of cases to support different arguments, and then the other side just gets to ask for that to be turned over to discovery, they're litigating on

[00:17:20] Speaker 05:
I don't think that's enough to push it over the line to work product.

[00:17:25] Speaker 05:
I do think this court has said in a number of cases, even if you have legal analysis, legal summary cases, case descriptions, that itself is not enough, at least if it's not in the context of a specific claim.

[00:17:38] Speaker 05:
And I'm not saying it would be useless to anyone.

[00:17:41] Speaker 05:
It may be the same way that all sorts of DOJ manuals that they do publish contain compilations of authority that people can look to.

[00:17:50] Speaker 05:
I don't think that alone is enough.

[00:17:51] Speaker 06:
And this just brings me back to where we were before, because if the very same, let's just suppose it's two paragraphs of cases, if you're falling back on a specific case line, and at least

[00:18:03] Speaker 06:
You know, we already went down the road of, is there a meaningful distinction when this document is produced in advance of a bunch of specific cases?

[00:18:10] Speaker 06:
So if the very same list of cases were produced for essentially the very same purpose, but it's produced in the context of a specific case, then the entire thing is off limits as a work product.

[00:18:20] Speaker 05:
Yeah, I mean, I think that's right, because I think you do need to have that line between policy on the one hand, that's what FOIA is about, versus case trial preparation on the other hand.

[00:18:28] Speaker 05:
And yeah, you could do the same thing in both contexts, right?

[00:18:32] Speaker 05:
Yeah.

[00:18:33] Speaker 05:
general agency policy that's being distributed to the whole department as here's our position, here's what you should do, I think that the doctrines do treat that differently.

[00:18:45] Speaker 03:
Thank you.

[00:18:53] Speaker 04:
Good morning, Your Honors.

[00:18:53] Speaker 04:
May it please the Court.

[00:18:55] Speaker 04:
There are three problems with NACDL's specific claim argument, but I'd like to begin... Let me ask you to start by looking at the words of Exemption 5.

[00:19:05] Speaker 02:
Do you get it in front of you?

[00:19:06] Speaker 04:
I do, sir.

[00:19:07] Speaker 02:
You have that reading.

[00:19:08] Speaker 02:
It's the first grammatical clause of it.

[00:19:11] Speaker 02:
I'm sorry, sir.

[00:19:11] Speaker 04:
I read just the first grammatical clause of it allowed if you were sure interagency or intraagency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.

[00:19:24] Speaker 02:
Now, would you say that that blue book, which I think there's a copy of over there is a memorandum or letter?

[00:19:32] Speaker 04:
I beg your pardon.

[00:19:33] Speaker 02:
Would you say that that blue book is a memorandum or letter?

[00:19:37] Speaker 04:
Yes, for statutory purposes, it would qualify as a memorandum.

[00:19:41] Speaker 04:
The fact that it is a 360-page, somewhat page book, that was put between two covers.

[00:19:47] Speaker 02:
Would you say that the language Congress used in memorandum or letter sounds like Congress had in mind training manuals?

[00:19:54] Speaker 02:
Or does it sound like Congress had in mind matters for specific litigation?

[00:19:59] Speaker 02:
Or something closer to matters for specific litigation?

[00:20:02] Speaker 02:
You may call that a memorandum.

[00:20:04] Speaker 02:
It doesn't seem to fit with what a lot of us have in mind when we say memorandum.

[00:20:09] Speaker 02:
Congress linked birds of a feather, or they presume they did, when they say memorandum or letter.

[00:20:18] Speaker 02:
sounds more like they were thinking about specific litigation than thinking about training manuals.

[00:20:22] Speaker 04:
So if I may, let me respond specifically to this specific litigation point.

[00:20:26] Speaker 04:
I'd like to preface this by reminding the court that this court has articulated a standard for determining whether a document is attorney work product.

[00:20:34] Speaker 04:
In Seale case, the court identified a functional test, and that test is whether a document

[00:20:40] Speaker 04:
in light of the nature of the document and the specific facts of a particular case can fairly be said to have been prepared or obtained because of the prospect of litigation.

[00:20:51] Speaker 02:
Now, the point... That really doesn't get us much further than the statute itself, though.

[00:20:56] Speaker 04:
I disagree, Your Honor, because this Court has interpreted... You have to disagree.

[00:21:00] Speaker 04:
Well, if I may, Your Honor, I'll explain why I disagree.

[00:21:03] Speaker 02:
Let me disagree.

[00:21:05] Speaker 04:
So, um,

[00:21:07] Speaker 04:
Whether or not there's a long memorandum or a short memorandum doesn't really make a difference.

[00:21:12] Speaker 04:
The question is whether or not the document has been prepared for purposes of litigation to assist a litigator in the course of that litigator's work before the court.

[00:21:24] Speaker 02:
Now, it is the case... May I counsel, before you contemplate, under this exemption, a comparison to civil procedure,

[00:21:33] Speaker 02:
Uh, things that are obtainable are not obtainable in discovery and litigation, right?

[00:21:38] Speaker 04:
Yes, it does, Your Honor.

[00:21:39] Speaker 02:
And I suppose you were in the Antitrust Division, and you were litigating with one of my old clients, and you demanded a whole bunch of documents, and we came by and said, we're not going to do that because they're under our retention manual, which we prepared in case we might be litigating some day.

[00:21:56] Speaker 02:
Would we get by with that?

[00:21:57] Speaker 04:
Your honor, the question is whether the purpose of the document is to assist the litigator.

[00:22:04] Speaker 02:
That's what our retention document was put together for.

[00:22:07] Speaker 02:
We put together the retention document because we might be litigating.

[00:22:11] Speaker 04:
Your retention document, if I'm understanding correctly, Your Honor, it's the retention document with the client?

[00:22:16] Speaker 02:
It would be the policy that we told the client to do.

[00:22:19] Speaker 02:
We do it for the client.

[00:22:20] Speaker 02:
The law firm grew it for the client and said,

[00:22:23] Speaker 02:
retain and destroy documents on this basis.

[00:22:26] Speaker 02:
Because we might be litigating this someday.

[00:22:28] Speaker 04:
Your Honor, I'd like to point to your court's precedent here.

[00:22:31] Speaker 04:
Schiller is a case which dealt with a memorandum which discussed litigation brought by the government in unfair labor practice claims.

[00:22:40] Speaker 04:
And that was a litigation document prepared for litigators as prosecutors, that is, as individuals bringing unfair labor practices claims.

[00:22:49] Speaker 04:
And the point of the specific claim requirement this court has said in Delaney was to distinguish documents in the particular cases where the court has referred to specific claims that were protectable under FOIA from those that weren't because they were, for example.

[00:23:07] Speaker 02:
Didn't Jordan at least suggest a difference between protectable memorandum, exemptable memorandum, and manuals?

[00:23:15] Speaker 04:
No, Your Honor, I think that's incorrect.

[00:23:18] Speaker 04:
The distinction in Jordan was between documents that were prepared not for purposes of litigation and documents that were prepared for litigation.

[00:23:28] Speaker 02:
And Jordan itself... Yeah, and Jordan seemed to leave open the possibility, at least, that manuals were not within the category of document... Don't shake your head unless you have something in your ear.

[00:23:41] Speaker 02:
Didn't Jordan at least leave open the possibility that manuals were different than memoranda prepared for litigation?

[00:23:47] Speaker 04:
I don't believe so, Your Honor.

[00:23:48] Speaker 04:
Jordan made the distinction, and I can point you to the page if you'd like, between documents that were prepared for litigation or the prospect of litigation.

[00:23:57] Speaker 04:
The court, in fact, the term used was the reason why the documents in Jordan were not subject to the exemption is because they were not even related to litigation in general.

[00:24:08] Speaker 04:
That's the term

[00:24:10] Speaker 04:
the court used to explain why those particular documents were not subject to the exemption.

[00:24:15] Speaker 04:
And I'd point out... What were the documents exactly?

[00:24:18] Speaker 04:
The documents were documents describing the policies concerning the exercise of prosecutorial discretion, that is, whether or not to bring a claim.

[00:24:26] Speaker 04:
It was not as my friend suggested.

[00:24:29] Speaker 06:
So it seems to me that the question about the status of a manual for work product purposes seems, at least in some measure, it would turn on what the manual is about.

[00:24:38] Speaker 06:
If it's a manual about how to comply with a law, there's not necessarily litigation on the horizon.

[00:24:45] Speaker 06:
Because if you comply with a law, there will never be a legal action.

[00:24:48] Speaker 06:
If it's a manual about how to do a lawsuit, the whole thing is it's a manual about litigation.

[00:24:54] Speaker 04:
I think that's right, Your Honor.

[00:24:55] Speaker 04:
And it would come within the attorney work product privilege.

[00:24:57] Speaker 04:
And that manual here, the uncontested declarations in this case, and the court obviously has the document before it and can evaluate it for itself, provides explanations of arguments that prosecutors would be well to consider in discovery disputes.

[00:25:14] Speaker 06:
That is, it gives.

[00:25:16] Speaker 06:
But that's because the manual is about how to do litigation and how the government lawyers are supposed to conduct litigation.

[00:25:22] Speaker 06:
So let me just be a little bit more precise.

[00:25:24] Speaker 06:
When I say the manual's about compliance with the law, I'm talking about not the law of litigation.

[00:25:28] Speaker 06:
I'm talking about the manual's how to comply with, say, OSHA.

[00:25:31] Speaker 06:
And so you'd have a manual that tells you how to comply with the statute.

[00:25:35] Speaker 06:
But that manual doesn't necessarily have anything to do with litigation.

[00:25:38] Speaker 06:
It could.

[00:25:38] Speaker 06:
It could be very relevant to litigation.

[00:25:40] Speaker 06:
But it doesn't necessarily have something to do with litigation.

[00:25:42] Speaker 06:
Because if you comply with OSHA, you're never going to be in litigation.

[00:25:46] Speaker 06:
But where the manual is itself about how to conduct litigation, then you never have to ask the specific case question.

[00:25:54] Speaker 06:
The whole thing is about.

[00:25:55] Speaker 06:
It's about how to litigate specific cases.

[00:25:57] Speaker 06:
That's all we're talking about.

[00:25:59] Speaker 04:
I think that's right, Your Honor.

[00:26:00] Speaker 04:
And I didn't mean to be disagreeing with my prior answer.

[00:26:03] Speaker 04:
I just meant to be saying that unlike a manual, the OSHA manual that you're describing, I think would be described as a manual that was either interpretive or... It would have been described in Jordan as an administrative manual.

[00:26:14] Speaker 04:
Yes, that was interpreting a policy or interpreting the law, and that would be disclosable under a two, a FOIA.

[00:26:20] Speaker 04:
By contrast, a manual that was prepared for litigators that gives them strategic counsel, not just this is what the law is.

[00:26:28] Speaker 02:
Why shouldn't there be at least a figurability determination and possible redaction, if nothing else here?

[00:26:34] Speaker 04:
Because this court has held that if a document is attorney work product.

[00:26:39] Speaker 02:
The court held nothing with respect to this book.

[00:26:43] Speaker 02:
The court has not had this question before.

[00:26:46] Speaker 02:
The question then becomes the one I asked you, why shouldn't there be insurability determination as to whether some parts of this come within the exemption and some don't?

[00:27:00] Speaker 04:
Because this court has categorically held that if a document is attorney work product,

[00:27:05] Speaker 04:
The segregability requirement is not applied.

[00:27:08] Speaker 06:
But I think what Jeff Santella is suggesting is that I think at the end of the day seems to beg the question because you're of course right that if a document in its entirety is considered a work product, we don't do segregation.

[00:27:18] Speaker 06:
The question is, is this document in its entirety considered a work product?

[00:27:22] Speaker 06:
Now you may think that the answer is yes, in which case we wouldn't do segregability, but I think the antecedent question is why?

[00:27:28] Speaker 04:
And that is a perfectly reasonable question.

[00:27:31] Speaker 04:
And I think for the same reason, the court obviously has the document and can do its own analysis.

[00:27:36] Speaker 04:
But for the same reason that a paragraph of a shorter memorandum, let's say a 20 page memorandum, the first page may set out the governing precedent.

[00:27:45] Speaker 04:
But it is an exercise of the attorney's analysis and skills to determine what precedent is relevant to the strategic arguments that are going to be made later in the document.

[00:27:56] Speaker 04:
Similarly here, the declarations in the record here and the document itself on its face, I believe, discloses that the portions of the document, the portions of the blue book that set out the governing law, do so specifically with cross-reference to the later strategic- Are you at liberty to say what the document says about its own purpose?

[00:28:18] Speaker 02:
Does the document say what it's for?

[00:28:20] Speaker 02:
Does it say this is for training or does it say this is for conduct litigation?

[00:28:24] Speaker 04:
It does say that it's for training.

[00:28:26] Speaker 04:
What I'd like to point out, Your Honor, is this is a document from the Office of Legal Education, which is an education component for litigation training.

[00:28:35] Speaker 04:
So this isn't training about just how to comply with the law.

[00:28:38] Speaker 04:
But it's training.

[00:28:39] Speaker 04:
On litigation, Your Honor, and how to litigate cases.

[00:28:43] Speaker 06:
Can I ask you this on the subject of secondability?

[00:28:47] Speaker 06:
So one of the declarations, this is at JA 103, paragraph 7.

[00:28:53] Speaker 06:
And this is trying to make the point that the Blue Book is not about policy.

[00:28:57] Speaker 06:
It's about, I guess, how to comply with policy, so tactical.

[00:29:02] Speaker 06:
Not necessarily even tactical.

[00:29:03] Speaker 06:
I think what I infer from this is that there's a distinction between disseminating policy and then giving advice on how to comply with policy, the latter of which you would say is a work product, the former of which you would say is not.

[00:29:14] Speaker 06:
But the paragraph says,

[00:29:16] Speaker 06:
The very first chapter of the Blue Book, entitled Department of Justice Policy Positions and Guidance, identifies the true primary sources of DOG criminal discovery policy as the U.S.

[00:29:25] Speaker 06:
Attorney's Manual and the Ogden Medal.

[00:29:28] Speaker 06:
So, from this we can tell what the first chapter is about and what it relies on, and that's just the announcement of policy.

[00:29:35] Speaker 06:
So, but your view is that that's inherently work product, even though the way you've itself

[00:29:42] Speaker 06:
described it is that it's just announcing the policy that's already set forth in the U.S.

[00:29:45] Speaker 06:
Attorney's Manual and the Agenda.

[00:29:47] Speaker 04:
Yes, Your Honor, I do claim that, and for the following reason.

[00:29:50] Speaker 04:
The first chapter doesn't just reprint the policy documents that are already publicly available.

[00:29:55] Speaker 04:
It was an exercise of editorial discretion, and it was set up to pick out pieces of the policy discussions that are relevant to the later chapters of the book which discuss strategic considerations.

[00:30:07] Speaker 04:
So just as a smaller litigation memorandum prepared by an associate for a partner would start out by saying, here's the precedent in this area,

[00:30:15] Speaker 04:
The Associates still have to cull the relevant precedent with an eye towards the strategic arguments that are going to be discussed later in the memorandum.

[00:30:23] Speaker 04:
The first chapter of the Blue Book has the same purpose here, and this is exactly at the heart of what the Supreme Court and this Court has in many places

[00:30:31] Speaker 04:
said is covered by the attorney work product.

[00:30:34] Speaker 04:
This is why, for example, factual information in something that is otherwise attorney work product is not segregable and disclosable.

[00:30:43] Speaker 04:
It's because it reveals part of the thinking of the attorney that helps shape the document as a whole for purposes of litigation.

[00:30:50] Speaker 04:
I think this would be a very different case if Chapter 1 was just a reprint of the Deputy Attorney General memoranda.

[00:30:58] Speaker 04:
which are policy documents or the U.S.

[00:31:01] Speaker 04:
attorney matter?

[00:31:01] Speaker 06:
Why, because even in that situation you're exercising editorial discretion, you're at least exercising discretion on which documents to put in.

[00:31:08] Speaker 04:
I think, Your Honor, in light of the functional analysis that this Court undertakes, namely,

[00:31:13] Speaker 04:
For one thing, the document would have already been public, I think.

[00:31:17] Speaker 04:
So just having it as a first chapter to another document, I think, would not protect it.

[00:31:20] Speaker 06:
But that's also true of the portions of the document.

[00:31:22] Speaker 06:
Those are also public.

[00:31:23] Speaker 04:
I beg your pardon?

[00:31:24] Speaker 06:
If you segregate out portions of the document and reprint those, those are also already public.

[00:31:28] Speaker 04:
But I think that might.

[00:31:29] Speaker 04:
If you segregate out portions of the Blue Book?

[00:31:33] Speaker 06:
Or if the Blue Book segregated out portions of the US Attorney's Manual.

[00:31:36] Speaker 06:
And I thought the point you were making earlier was that even if Chapter 1

[00:31:41] Speaker 06:
is a, is at least in part an exposition of policies that have already been disseminated in the U.S.

[00:31:47] Speaker 06:
Attorney's Manual or in the Ogden Memorandum.

[00:31:50] Speaker 06:
The process of segregating out which portions of that policy to feature is itself work product.

[00:31:58] Speaker 06:
That's right, because there was... I'm just making the point that

[00:32:01] Speaker 06:
It doesn't seem to me that there's a great deal of difference between regurgitating the entire U.S.

[00:32:05] Speaker 06:
Attorney's Manual section and regurgitating parts of the U.S.

[00:32:08] Speaker 06:
Attorney's Manual section because you're exercising editorial discretion regardless.

[00:32:11] Speaker 04:
So I take your point, Your Honor, and if you believe that, then I think that a more

[00:32:17] Speaker 04:
robust exercise of discretion where actually pieces were picked out in light of the strategic arguments that are going to be made later in the book should follow a force you or I. I actually think that there could be arguments that would distinguish between a whole document which was included not

[00:32:34] Speaker 04:
based on editorial judgments, but just as a reprint of the policy versus what we have here, which is a chapter that was written with an eye to the strategic advice that was to follow, that was to frame the advice.

[00:32:46] Speaker 04:
I mean, to be very clear, if I could sum it this way, this is a strategic document that explains to litigators how to exercise discretion.

[00:32:55] Speaker 04:
But discretion has to be exercised within certain bounds.

[00:32:58] Speaker 04:
And the only way to sensibly explain the bounds is to explain what the law requires of the prosecutor.

[00:33:04] Speaker 04:
And the purpose of the first chapter would be to explain what those boundaries are, again, with an eye to the specific litigation issues that come up later in the chapter and which provide guidance and advice, strategic advice, practical notes, take care, cautions, and the rest for litigators in actual litigation.

[00:33:24] Speaker 02:
I want to ask you just a couple of rather broad and basic questions that may or may not be proper or improper, and I'm going to do it anyway.

[00:33:32] Speaker 02:
Isn't it repeatedly the language of this Court and the Supreme Court that the purpose and foyer is to let the citizens know what the government is up to?

[00:33:42] Speaker 04:
There is no dispute as to that proposition.

[00:33:45] Speaker 02:
You agree with that?

[00:33:46] Speaker 02:
I do.

[00:33:46] Speaker 02:
Why isn't this quintessentially an attempt by the criminal defense lawyers and amnesty to determine what the government is up to insofar as its discovery obligations?

[00:33:58] Speaker 04:
Because, Your Honor, there is an equally strong explanation that documents that would be protected by common civil discovery rules, the Supreme Court held in Sears and the Supreme Court also held in Nobles applicable to the criminal context, protects attorney work product.

[00:34:15] Speaker 04:
And if this is properly work product, then it is an exemption which protects the product from disclosure and prevents the sharp practices

[00:34:25] Speaker 04:
that arise and for which the Supreme Court recognized the work product doctrine in the very first place.

[00:34:32] Speaker 04:
Just because FOIA has the laudable and completely understandable goal of broad disclosure doesn't mean that the exceptions, exemptions, when they apply should be construed not to apply in an appropriate context.

[00:34:48] Speaker 02:
Would you also agree that it has been stated by this Court and the Supreme Court that

[00:34:54] Speaker 02:
The interpretive guide in FOIA is to further the goal of disclosure rather than withholding.

[00:35:02] Speaker 04:
Yes, I will, Your Honor, but I would also point out that in judicial watch, this court, in the context of the attorney work product doctrine and exemption five, said when the attorney work product doctrine applies, it should be given full force.

[00:35:16] Speaker 04:
Judicial Watch said that, Your Honor, already.

[00:35:19] Speaker 04:
So I think that the laudable disclosure purposes of the statute should not be read to carve back an exemption properly applied.

[00:35:28] Speaker 06:
Can I ask this?

[00:35:28] Speaker 06:
So if you look at the DOJ website, one thing you'll find, which I'm sure that you've reviewed in the context of reviewing Bergen for this case, is the FOIA guide published by DOJ.

[00:35:39] Speaker 06:
And if you look at that FOIA guide,

[00:35:41] Speaker 06:
it could be a how-to manual, because it tells you, you know, here's exemption five, here's the law on a bunch of circuits on the scope of exemption five, here's a sub-issue, you know, here's some cases that point in this direction, here's some cases that point in another direction.

[00:35:56] Speaker 06:
It could very well be used as a how-to litigation manual for either side, frankly, on the law in these, in what's going to be litigation.

[00:36:06] Speaker 06:
If the government had decided not to publicize that,

[00:36:11] Speaker 06:
Would it be fair for the government to say that that's attorney work product because it tells us how we're going to litigate FOIA cases?

[00:36:17] Speaker 04:
I'm aware of the guide, Your Honor, but I certainly did not look at it before this argument, so I'm at a little bit of a loss to respond.

[00:36:23] Speaker 04:
I guess what I would say is the following.

[00:36:26] Speaker 04:
If it is truly a litigation guide about what arguments to make, what tactical decisions to make, what arguments your opponent might make, then it could well be that that would

[00:36:36] Speaker 04:
could have been protectable by attorney work product.

[00:36:40] Speaker 04:
But that privilege, of course, is one that can be waived.

[00:36:43] Speaker 04:
And it could very well be in this context that the government, the department in this case, decided that the better purpose, especially in light of the fact that the subject matter, Your Honor described as a FOIA manual, is disclosure in that context.

[00:36:58] Speaker 04:
The government, the department has made a very different assessment in this case and determined that the strategic guidance for litigators in prosecutions concerning discovery are not the sort of thing that should be publicly available, but that they should be protected to give prosecutors some room for consideration about how best to exercise their discretion in light of the governing law.

[00:37:19] Speaker 01:
If we read this as

[00:37:23] Speaker 01:
Does it matter whether the manual is simply taking a list of subjects and saying, you know, here's what the courts have tended to do, as opposed to saying, here's what the courts have tended to do, and it would be wise for you to think about X or Y?

[00:37:41] Speaker 01:
Do we need that additional point, or is it enough that it just

[00:37:45] Speaker 01:
take subjects and goes through them one after another after another and says, here's what the courts are doing.

[00:37:50] Speaker 01:
Is that really guiding discretion as opposed to just creating a treatise?

[00:37:55] Speaker 04:
I think that's a fair question, Your Honor.

[00:37:58] Speaker 04:
I want to respond directly, and I will, but if I may first say the Blue Book does actually say in numerous places, as the declarations point out,

[00:38:07] Speaker 04:
This is the governing precedent.

[00:38:08] Speaker 04:
There may be pages of explaining government – governing precedent, but then it says you should be careful that, you should take caution that, your adversaries may argue that.

[00:38:18] Speaker 01:
But now to respond more directly – All right, so those are potentially severable, but go ahead and respond.

[00:38:23] Speaker 04:
Well, with respect to your honor – Would you say that's the predominant?

[00:38:28] Speaker 04:
character of the book?

[00:38:30] Speaker 04:
I would say that's predominant character of the book, Your Honor.

[00:38:32] Speaker 01:
I mean, I think... Throughout, I will find after a discussion of the case law, you ought to do this or not do that or be careful about this, don't trip here.

[00:38:45] Speaker 01:
You would say that that predominates here?

[00:38:47] Speaker 04:
Or the discussion of the case law is structured in such a way to

[00:38:50] Speaker 04:
to suggest, for example, on potential arguments that could be made concerning a demand that the government disclose information about confidential informants.

[00:39:03] Speaker 04:
There could be a list of case law, a compilation of case law, with editorial descriptions of that case law, which by their terms are providing resources for government lawyers to structure arguments.

[00:39:17] Speaker 01:
Do you know what a treatise does?

[00:39:18] Speaker 01:
I mean, that's what treatises do.

[00:39:20] Speaker 01:
They listen, they take subjects, they give a description, they give parentheticals and explain, and any smart person looking at it can use it to her or his advantage depending on which side they are.

[00:39:34] Speaker 01:
Don't you need more than that?

[00:39:36] Speaker 04:
I think actually we don't, Your Honor.

[00:39:38] Speaker 04:
I do think that's a fact.

[00:39:39] Speaker 01:
If it's just a treatise, that can be a work product.

[00:39:43] Speaker 01:
That's really important for me to try and understand your argument.

[00:39:46] Speaker 04:
If it's a litigation treatise, Your Honor, if it's a treatise on, for example, Rule 16, the requirements of Rule 16, I believe that

[00:39:56] Speaker 04:
Again, a squib, a parenthetical, a grouping of cases are editorial decisions made by authors put together in such a way that are intended to enable prosecutors to best muster their arguments in the context of... If it's a treatise, they would best allow defense counsel as well to muster their arguments.

[00:40:16] Speaker 01:
So a pure treatise, in my view,

[00:40:19] Speaker 01:
How does that become word product?

[00:40:21] Speaker 01:
If that's what we're talking about, as opposed to, here's the case law, and here's where we prosecutors are liable to run into trouble, and you ought to think about this or that, or here's the approach that's appropriate if it's a pure treatise.

[00:40:38] Speaker 04:
So I'm accepting the hypothetical.

[00:40:40] Speaker 04:
If it is a pure treatise, I nevertheless think.

[00:40:43] Speaker 04:
I want to distinguish something first.

[00:40:45] Speaker 04:
There can be a public treatise, of course.

[00:40:47] Speaker 04:
But I think that if a law firm, a private law firm were to create the same sort of compilation in an area of work, False Claims Act cases, and were to compile a variety of cases and say these are the key cases and this is our description of the key cases and the uses that you can make of them, their editorial decision to put these cases together in the context of a particular type of argument

[00:41:11] Speaker 04:
These are the best defenses if the government makes this argument.

[00:41:14] Speaker 04:
These are the best defenses if the government makes... No, don't put that.

[00:41:18] Speaker 01:
I beg your pardon.

[00:41:18] Speaker 01:
I'm sorry.

[00:41:19] Speaker 01:
That's right.

[00:41:20] Speaker 04:
Here are cases that are relevant to this argument.

[00:41:22] Speaker 04:
Here are cases that are relevant to that argument.

[00:41:24] Speaker 04:
There's still an editorial decision that's made about which cases to collect and which would be most efficacious for the government's or for the reader's purposes.

[00:41:34] Speaker 06:
Now, I concede that... But under you, I think it doesn't even... The editorial part of it

[00:41:37] Speaker 06:
I don't even understand why you think that matters, and I'm not suggesting that you necessarily should, because the point is that somebody's gone to the trouble of doing the work to put together this compilation.

[00:41:46] Speaker 06:
It might read objectively like a treatise, but part of the impetus behind the work product doctrine is one side doesn't get to piggyback on the labors of the other side without doing the work itself.

[00:41:57] Speaker 06:
In fact, I would think that, is your view the following?

[00:42:02] Speaker 06:
Suppose there's a publicly available treatise like the Wright and Miller treatise.

[00:42:05] Speaker 06:
And in the context of litigation, an associated law firm produces a memorandum, the first section of which just block quotes of the germane section of the Wright and Miller Treatise, and then the second section of which analyzes how that bears on the particular litigation at hand.

[00:42:20] Speaker 06:
Would the first section be segregable as non-work product?

[00:42:23] Speaker 03:
No, Your Honor.

[00:42:24] Speaker 06:
You think the whole thing would be work product?

[00:42:25] Speaker 03:
I do think.

[00:42:26] Speaker 06:
Even though it's just regurgitating a publicly available tree?

[00:42:29] Speaker 04:
I do think that.

[00:42:31] Speaker 04:
Because?

[00:42:32] Speaker 06:
The piggyback argument?

[00:42:33] Speaker 04:
I beg your pardon?

[00:42:34] Speaker 04:
The piggyback argument?

[00:42:35] Speaker 04:
I think it would be non-segregable.

[00:42:37] Speaker 01:
Is there some case that lays out that piggyback argument?

[00:42:41] Speaker 04:
I think Your Honor's case in Judicial Watch is the closest to Martin's.

[00:42:47] Speaker 04:
It's another example involving that.

[00:42:50] Speaker 04:
It's a brilliant opinion.

[00:42:51] Speaker 04:
It is an opinion we quite like and quote from often.

[00:42:55] Speaker 06:
But I thought Justice Jackson and Hickman was talking about that when he described that you don't litigate on the fruits of others' labors, right?

[00:43:04] Speaker 04:
I think that's exactly right, Your Honor.

[00:43:06] Speaker 04:
And it was a subsidiary consideration that I was pointing to by referencing editorial.

[00:43:11] Speaker 04:
part of the fruits are the decisions to group particular cases.

[00:43:14] Speaker 04:
But I think the threshold consideration that you're pointing to is the efforts of compilation in the first instance.

[00:43:20] Speaker 04:
And if those efforts are geared towards litigation, that is sufficient to make a document protectable under the work product privilege and so protectable

[00:43:29] Speaker 06:
non-exempt under, excuse me, exempt from disclosure under... But your view, and just to be clear in response to Judge Edwards' question, is that that would be enough, even if that were all that were going on, but here there's more going on still, because after the parts that might be loosely described as a treatise, then there's the effort to interject strategic and tactical advice on how to use the law that has just been described.

[00:43:57] Speaker 04:
Exactly, Your Honor.

[00:43:57] Speaker 04:
That's exactly well said.

[00:44:11] Speaker 06:
We'll give you two minutes of rebuttal.

[00:44:13] Speaker 05:
Okay, thank you very much.

[00:44:15] Speaker 05:
Your Honor, I understand that the policy manual here relates to duties that arise in the course of prosecution.

[00:44:23] Speaker 05:
That's because that's what the OJ does.

[00:44:24] Speaker 05:
They prosecute.

[00:44:25] Speaker 05:
So their policy may be policies about duties that arise in the course of carrying out those obligations.

[00:44:31] Speaker 05:
I don't think that's enough to turn everything they do into a work product.

[00:44:35] Speaker 05:
I think the distinction is, you know, if it were, then the U.S.

[00:44:38] Speaker 05:
Attorney's Manual would be a work product, too.

[00:44:40] Speaker 05:
I mean, that's their manual on how they're going to conduct prosecutions.

[00:44:43] Speaker 02:
Perhaps they could decide they wanted it to be.

[00:44:46] Speaker 02:
The fact that they voluntarily disclosed it doesn't mean they didn't.

[00:44:49] Speaker 05:
It doesn't, Your Honor, but I thought their position was that that would not be a work product.

[00:44:53] Speaker 05:
That if it was really policy, it would not be a work product, even if it is policy about litigation.

[00:44:58] Speaker 05:
I think that's what Jordan says.

[00:45:00] Speaker 05:
I mean, Jordan was a manual.

[00:45:01] Speaker 05:
The court did not say that the manual was not prepared in anticipation of litigation.

[00:45:07] Speaker 05:
It said it was not prepared in anticipation of trials because it was about indictments.

[00:45:11] Speaker 05:
Indictments are part of the criminal justice system and prosecution system just as much as disclosure obligations.

[00:45:18] Speaker 05:
each could have strategic implications.

[00:45:21] Speaker 05:
Nonetheless, that was the department's policy, general, going forward for all cases.

[00:45:27] Speaker 05:
And that, therefore, was within the realm of FOIA, not within the realm of work product.

[00:45:31] Speaker 06:
But there is a little bit of a distinction between the decision whether to initiate litigation and how to conduct a litigation once initiated.

[00:45:38] Speaker 05:
Well, Your Honor, it wasn't limited to whether.

[00:45:40] Speaker 05:
It was whether and how, and the types of charges to bring and operate.

[00:45:45] Speaker 05:
So if the policy was, we're going to charge every case to the maximum,

[00:45:48] Speaker 05:
That's a policy that is going to have lots of implications for the litigation and the prosecution.

[00:45:52] Speaker 05:
Nonetheless, that's not work product, according to Jordan.

[00:45:55] Speaker 05:
So I would suggest the distinction is not between policy and then how to implement the policy.

[00:46:01] Speaker 05:
I think those are both not work product.

[00:46:03] Speaker 05:
I don't see a difference between the US attorney's manual and then fleshing out the US attorney's manual with more detail.

[00:46:09] Speaker 05:
I think that the relevant distinction is between policy and then how to defend the government's policy if challenged in court.

[00:46:16] Speaker 05:
I think that looks to the function of the document, to the capacity of the lawyer who created the document.

[00:46:22] Speaker 05:
And again, the department's position was, and certainly its testimony to Congress was, we're creating this not because we're going to try to avoid disclosure or defend the government when accused of violating its disclosure obligations, but because we want our employees to understand what their obligations are and to comply with them.

[00:46:40] Speaker 05:
And so I think that's sort of the determining line.

[00:46:42] Speaker 05:
And certainly, if there's material that crosses that line and is not about here's what you need to do, here are the factors you should consider where there's room for discretion, again, that's the same as Jordan.

[00:46:55] Speaker 05:
If it crosses the line and it becomes, and here are some tactics to fight back when criminal defendants are trying to go beyond what

[00:47:04] Speaker 05:
what the law requires, then I think there is room for sacred ability, but that's because they serve very fundamentally different functions, and so you can cut it up.

[00:47:12] Speaker 02:
Would it be fair to say that your position would be that the government can't turn FOIA material into exempt material

[00:47:24] Speaker 02:
by putting it into a long document, which includes a lot of other material.

[00:47:28] Speaker 05:
Absolutely, Your Honor.

[00:47:30] Speaker 05:
The OSHA manual that Judge Srinivasan had hypothesized, you have an OSHA manual, and you put in, oh, and here are some tips for litigating OSHA cases when we're in the defense of Grazia.

[00:47:40] Speaker 05:
I don't think that turns the whole thing into work.

[00:47:43] Speaker 05:
Thank you.

[00:47:44] Speaker 02:
Thank you, Your Honor.

[00:47:45] Speaker 02:
Thank you.

[00:47:46] Speaker 02:
Case is submitted.