[00:00:00] Speaker 00: Case number 23-5083. [00:00:03] Speaker 00: State of Georgia and Brad Raffensperger, Georgia Secretary of State in his official capacity versus United States Department of Justice at balance. [00:00:12] Speaker 00: Mr. Sandberg for the at-balance. [00:00:14] Speaker 00: Ms. [00:00:14] Speaker 00: Thatte, Amiki Kurayoi in support of the at-balance. [00:00:17] Speaker 00: Mr. Scherr for the appellees. [00:00:19] Speaker 04: Good morning, counsel. [00:00:20] Speaker 04: Good morning. [00:00:21] Speaker 04: Mr. Sandberg, please proceed when you're ready. [00:00:23] Speaker 05: Good morning, and may it please the court. [00:00:24] Speaker 05: Jeff Sandberg for the United States. [00:00:27] Speaker 05: This case is about whether FOIA Exemption 5 applies to attorney work product shared among DOJ and allied counsel pursuant to common interest agreement. [00:00:35] Speaker 05: Exemption 5, of course, requires both that the records be privileged and that they be intra-agency. [00:00:42] Speaker 05: This court has not yet addressed the intra-agency condition in a case like this one, where the agency function is litigation before another branch of government rather than an activity that culminates at the agency itself, such as regulation, [00:00:55] Speaker 05: or adjudication or some other policy process. [00:00:57] Speaker 05: This court has made clear, though, in other contexts that the term intra-agency, at least specifically as it is used in Exemption 5, is best interpreted pragmatically, so that the intra-agency concept turns not just on whether the author is an agency employee, but instead on a common sense judgment whether the records at issue are sufficiently connected to and aligned with the agency function such that they merit being deemed intra-agency. [00:01:23] Speaker 05: We think the considerations that led this court and other courts of appeals to adopt that functional reading of intra-agency in the consultant context apply with even greater force here. [00:01:33] Speaker 05: Here, uniquely, DOJ is functioning as a litigant that must play by the same rules as other parties and is subject to the court's supervision. [00:01:41] Speaker 05: As the government's lead litigator, we often find ourselves in multi-party litigation of all kinds, in which there end up being interveners or other parties on the same side as us, whether we would like them to be there or not. [00:01:52] Speaker 05: And the district court supervising multi-party litigation often encourage us, or as in the underlying litigation here, actually require us to litigate jointly, whether it be through jointly conducting discovery or, as here ultimately happened, making joint filings where DOJ and intervenors council or aligned co-parties council have to co-author and sign the same brief. [00:02:12] Speaker 05: Now that approach is- Can I ask you this? [00:02:14] Speaker 04: So there's obviously, understand your submission that [00:02:19] Speaker 04: It's not fair and it doesn't make sense to use FOIA as a way to get the other side's materials if you couldn't get the other side's materials in the litigation itself because of the work product privilege. [00:02:31] Speaker 04: And I'll assume for present purposes that everything here is covered by work product. [00:02:34] Speaker 04: And let's put a side waiver. [00:02:34] Speaker 04: Let's just assume it's actually covered by it. [00:02:36] Speaker 04: It would be covered by the work product privilege in the underlying litigation itself. [00:02:40] Speaker 04: And then your submission is, well, you can't use FOIA to get around that and allow the opposing side to get their hands on strategy materials. [00:02:48] Speaker 04: I understand that. [00:02:50] Speaker 04: The question is, in my mind, is what work is the intra and interagency part of the statutory provision doing in the way you're looking at it? [00:03:00] Speaker 04: Because the work product privilege definitely covers circumstances in which [00:03:05] Speaker 04: the attorneys for a side share documents with other attorneys that are roughly on the same side. [00:03:12] Speaker 04: There's no doubt the work product privilege covers some of that. [00:03:15] Speaker 04: then the question becomes, is your submission at the end of the day that everything that's protected by work product in that context also should be treated as intra-agency for purposes of FOIA, or are you seeing intra-agency to do some work that would limit the extent to which the work product privilege would work in the FOIA context? [00:03:37] Speaker 05: It does do some work here. [00:03:39] Speaker 05: I do want to take a step back, since this is a new context, to matter of first principles. [00:03:42] Speaker 05: The inter- or intra-agency functions across the breadth of what Exemption 5 has to do, right? [00:03:46] Speaker 05: So we know from Klamath and this court's recent decision in American Oversight that intra-agency has meaningfully chipped away at the government's ability to withhold as deliberative materials submitted by outside parties that have a stake in the agency process. [00:03:59] Speaker 05: In the context of common law litigating privileges that everyone can enjoy, not just governmental privileges, we think that intra-agency continues to function, but it's not going to have the same sweep because the concern that Congress was getting at and including intra-agency does not exist to the same extent. [00:04:14] Speaker 05: What is more work for work product? [00:04:16] Speaker 05: Okay, so the work product privilege, as this court has explained in AT&T, which is the case that everybody in this case, including the district court relied on, [00:04:23] Speaker 05: said that the attorney work product privilege is not readily waived. [00:04:28] Speaker 05: It's only waived when the work product is likely to reach an adversary or a conduit to an adversary. [00:04:33] Speaker 05: So that means that the government could share its work product with parties with whom it doesn't have a common litigating interest, and it wouldn't necessarily waive that privilege. [00:04:41] Speaker 05: But here, we think that intra-agency does impose discipline on us to say that the agency has to duly decide that it is necessary for the co-litigants to be [00:04:49] Speaker 05: essentially part of the agency's litigating team in order to successfully carry out this litigation. [00:04:54] Speaker 05: And that is, you know, at common law, the way you do that is through a common interest agreement. [00:04:58] Speaker 05: And so we think the best reading of interagency requires us, you know, the attorney general and his delegates to make a determination that they- So the work that's done is if you cabinet to common interest for purposes of FOIA, that's narrower than the sweep of the work product. [00:05:13] Speaker 04: That's right. [00:05:14] Speaker 04: Basically, the way you're looking at it. [00:05:15] Speaker 05: That's right. [00:05:16] Speaker 05: In the context of work product, I would know there's other privileges to attorney-client privilege where attorney-client privileges is waived unless there's a common interest in place. [00:05:25] Speaker 05: And so it might be coextensive. [00:05:26] Speaker 05: But I think that's just, it speaks to the fact. [00:05:28] Speaker 04: So there's still going to be situations then under, part of the force of your submission is, look, it's just not fair. [00:05:34] Speaker 04: And it doesn't make sense if FOIA can be a way for the other side to get their hands on our notes. [00:05:40] Speaker 04: That's right. [00:05:41] Speaker 04: And even under your view, that's going to happen sometimes because situations in which it's beyond common interest, but still protected by the work product privilege and therefore accessible under FOIA. [00:05:53] Speaker 05: That's right. [00:05:53] Speaker 05: And the Congress used the word intra-agency in there. [00:05:56] Speaker 05: It should be given independent vitality where possible. [00:05:59] Speaker 05: We recognize that. [00:06:00] Speaker 05: The government has to make a determination that it is necessary to its litigating function in order for it to come up. [00:06:05] Speaker 04: And how does that map on you? [00:06:06] Speaker 04: You mentioned the purpose of the words intra or inter-agency. [00:06:11] Speaker 04: What is that purpose and how does this line map on to that purpose? [00:06:14] Speaker 05: Well, the purpose is, you know, I think what Congress was getting at, it said intra-agency or intra-agency. [00:06:20] Speaker 05: So it was in some sense trying to cover the waterfront of documents that are legitimately within the government, right? [00:06:25] Speaker 05: And the agency, of course, is an entity. [00:06:27] Speaker 05: It has to act through the persons who it invites to participate in its functions, whether that be on a permanent basis as employees or on an ad hoc basis as a consultant or co-litigant. [00:06:37] Speaker 05: And we think that intra-agency is getting at the concept that it embraces [00:06:41] Speaker 05: materials that are essential to the agency's conduct of its mission. [00:06:44] Speaker 05: And it's ultimately a line drawing exercise that looks a little different depending on the context or [00:06:48] Speaker 05: privilege at issue again here we're talking about an agency that has made up its mind about what it thinks the right answer is but it doesn't have the last word on whether the election integrity act violates the voting rights act it has to litigate in court and in this case ultimately you know georgia objected to the private party's ability to file a separate summary judgment opposition from us we filed a joint summary judgment opposition because georgia insisted and the district court in georgia [00:07:11] Speaker 05: agreed that we should have to coordinate to make things easier for, among other parties, Georgia. [00:07:17] Speaker 02: And so I understand the argument that work product privilege should be treated different. [00:07:23] Speaker 02: But just to step back, am I understanding correctly that, essentially, if we thought we were supposed to apply the test that American oversight sets out, that at least your primary argument is that we shouldn't apply that test in the same way? [00:07:40] Speaker 02: Is that correct? [00:07:41] Speaker 05: That's right. [00:07:41] Speaker 05: We think that this is, as Georgia itself argued in district court, this is a meaningfully different context from the consultant context. [00:07:46] Speaker 05: And there are other applications of intra-agency that just don't fit within consultant, like documents exchanged with the president or with represented parties. [00:07:53] Speaker 02: So how do you distinguish Klamath? [00:07:56] Speaker 02: Because Klamath did involve work product privilege. [00:07:59] Speaker 02: And it did involve exactly the dynamic Judge Srinivasan is hinting at, where documents that would have been protected as a work product, including under common interest privilege, [00:08:10] Speaker 02: were required to be disclosed under FOIA. [00:08:13] Speaker 05: Klamath was predominantly, I remember the footnote that your honors must be recalling as well from Klamath. [00:08:19] Speaker 05: There were a couple of documents there that were work product, but the thrust of the court's analysis there was on the deliberate process privilege because it was documents submitted by- I don't think that's quite right. [00:08:27] Speaker 02: The background says they invoke deliberative process privilege and work product privilege. [00:08:32] Speaker 02: Right. [00:08:33] Speaker 02: And then they proceed to conduct a singular analysis of what it means to be intra-agency. [00:08:38] Speaker 05: I think Klamath's analysis, when you get to the legal reasoning, is focused on the documents submitted by the consultant to the government, which the government in that case withheld as deliberative process privilege. [00:08:48] Speaker 05: The work product privilege in that case, if I recall correctly, was something that the Department of Interior had sent to one of the tribes. [00:08:55] Speaker 05: The real thrust of that opinion, as it has been interpreted by this court since then, is about the materials submitted by the consultant to the government. [00:09:03] Speaker 05: When the government was still making up its mind, both in an internal adjudication, [00:09:07] Speaker 05: as well as potential participation in a state court lawsuit as to what position it was going to take. [00:09:11] Speaker 05: And here we're talking about the Department of Justice. [00:09:13] Speaker 02: Some of the documents that have been withheld here, documents that were prepared by non-governmental parties. [00:09:20] Speaker 02: Yes. [00:09:20] Speaker 02: That's what the amicus brief says, right? [00:09:22] Speaker 02: Yes. [00:09:22] Speaker 02: In climate. [00:09:24] Speaker 02: The brief especially makes very clear that some of these documents must be withheld based on work product privilege. [00:09:31] Speaker 02: It cites state common interest law and complains about the fact that this is going to put the tribe at a disadvantage. [00:09:39] Speaker 02: It just really echoes a lot of the arguments you're making today. [00:09:44] Speaker 02: And I just wonder what the distinction is. [00:09:46] Speaker 05: Well, we're also talking here about intra agency, of course, but you know what matters is what the Supreme Court said in its decision and not you know what the party said in its briefs and what the Supreme Court was focused on was a line of cases which at that point included only consultants. [00:10:00] Speaker 05: No one had thought possibly dreamed of seeking the Department of Justice's attorney work product by the time 2001 when Klamath was decided. [00:10:06] Speaker 05: And so what the Supreme Court said is, look, we're not going to definitively give a definition of interagency. [00:10:11] Speaker 05: We're not even going to decide whether the consultant application is definitively correct or not. [00:10:15] Speaker 05: We're just going to say that the views are sufficiently divergent from that of the agency. [00:10:21] Speaker 05: When you're lobbying the agency, that that doesn't fall within the consultant corollary. [00:10:25] Speaker 05: And the Supreme Court was just citing a line of consultant cases. [00:10:28] Speaker 05: It wasn't thinking about whether the president is an agency, whether represented judges or members of Congress would be an agency. [00:10:33] Speaker 05: It just did not attempt at all to address the situation here. [00:10:36] Speaker 05: And I think the Fourth Circuit got it right in saying Klamath just doesn't speak to these circumstances. [00:10:41] Speaker 05: It's important to look at this as a matter of first principles. [00:10:43] Speaker 02: And one of the arguments that I think the other side makes is that Klamath did involve the context of litigation and they weren't just sort of aligned parties like we have here, but the government was acting as trustee and had fiduciary obligations. [00:11:00] Speaker 02: And what the court says about that is that it's not that simple. [00:11:06] Speaker 02: What matters is that the Klamath tribe in communicating with the Bureau would be pressing its own view of its own interest. [00:11:15] Speaker 02: Even if [00:11:16] Speaker 02: They were completely aligned in that state court. [00:11:18] Speaker 02: Right. [00:11:19] Speaker 05: So the government's argument was that the deliberative materials submitted to the Department of Interior by the tribe saying, give me more water, even if it comes at the expense of others, that the government couldn't withhold that simply because it had a trust obligation to the people sending those letters. [00:11:34] Speaker 05: But again, that was in the context of deliberative submissions into an agency decision making process. [00:11:38] Speaker 05: Here, the Department of Justice made up its mind. [00:11:41] Speaker 05: It took a while. [00:11:41] Speaker 05: It was the last one to file a suit, but it decided [00:11:44] Speaker 05: that the Attorney General decided there was likely a violation of the Voting Rights Act here. [00:11:48] Speaker 05: And so then it's a question of how do you operationalize that? [00:11:50] Speaker 05: DOJ, unlike other agencies, doesn't get to just wave a wand and make it so. [00:11:55] Speaker 05: It has to litigate in court. [00:11:56] Speaker 05: And the reason why courts approach to multi-party litigation has been possible is because for as long as the work product privilege has existed, [00:12:03] Speaker 05: going back to Hickman, it has protected the ability of lawyers on the same side of the case to consult with one another in trial preparation. [00:12:09] Speaker 05: And we know the work product privilege is one of the privileges Congress specifically had in mind when it enacted Exemption 5. [00:12:16] Speaker 05: And interpretive principles tell us we ordinarily presume that Congress intends to go with, rather than fly in the face of, that common law backdrop. [00:12:23] Speaker 05: So I think the question is, did Congress displace the well-understood understanding of the common law privilege by using the word intra-agency? [00:12:31] Speaker 05: And even under your view, it did. [00:12:33] Speaker 05: some extent? [00:12:34] Speaker 05: Yes, to a very small extent. [00:12:35] Speaker 05: It needed to be, you know, in some sense, functionally essential to the agency's mission. [00:12:40] Speaker 05: But we do not think that Congress displaced this important application of the common law here and all of the available tools of statutory interpretation and available evidence cuts in the government's favor here. [00:12:50] Speaker 05: I mean, you'll look in vain in my opposing colleagues brief for anything other than an assertion that, you know, the term intra-agency [00:12:57] Speaker 05: in the ether should be read as limited to agency employees. [00:13:03] Speaker 05: There's no indication that Congress in 1966 intended to incorporate, to protect the working papers of the agency attorney only so long as they remained in the hands of agency employees. [00:13:12] Speaker 05: And certainly in 2016, when Congress set about to try to fix all the problems it perceived with FOIA, including problems with Exemption 5 specifically, particularly the deliberative process privilege, Congress at that point would have known from the case law and many circuits [00:13:26] Speaker 05: courts had given a functional interpretation to interagency, where it's not limited to employees, that the Supreme Court had, although not affirmatively blessed the consultant corollary in Klamath, had assumed its validity. [00:13:37] Speaker 05: And moreover, the Fourth Circuit had held in Huntington-Williams that the common interest rationale was valid here. [00:13:44] Speaker 05: And this court has said when Congress sets about to fix things that are wrong with the statute, and it's been interpreted in a particular way, that as a matter of textual interpretation, [00:13:54] Speaker 05: ratifies the interpretation has long been given Congress thought nothing was broken about the common interests notion just as a practical matter. [00:14:03] Speaker 04: I understand that the comment has practical salience in the attorney-client privilege context, which it's at least in my limited experience is where it often comes up because parties want to make sure that by sharing documents, that's not going to afford an avenue for piercing the attorney-client privilege. [00:14:22] Speaker 04: And there's cases that discuss it in the context of the work product privilege too, including our cases. [00:14:27] Speaker 04: But what practical work does it do? [00:14:30] Speaker 04: Let's just divorce it from the FOIA context. [00:14:33] Speaker 04: In litigation, what does common interest have to do with the work product privilege if the work product privilege actually extends beyond common interest? [00:14:42] Speaker 05: Right. [00:14:43] Speaker 05: The right answer, and if you look to the treatises, it'll tell you this, that there's cases on both sides of it. [00:14:48] Speaker 05: The right answer is that the common interest doctrine is a defense to waiver of the attorney-client privilege. [00:14:54] Speaker 05: It is not [00:14:55] Speaker 05: It essentially marks the line there. [00:14:57] Speaker 05: If you have a common interest agreement, that's sort of a slam dunk for the work product, but that is not the bounds of the work product. [00:15:02] Speaker 04: Right. [00:15:03] Speaker 04: So what is it doing in the world? [00:15:05] Speaker 04: I mean, it makes it clear that there hasn't been a waiver in the work product context, but it's not actually defining the meets and bounds of the work product. [00:15:13] Speaker 05: That's right. [00:15:13] Speaker 05: But we do think that it defines the meets and bounds of intra-agency in this context. [00:15:17] Speaker 05: And so that's why there's a meaningful, that's why we're giving meaningful independent work to intra-agency here. [00:15:24] Speaker 05: What gets confusing is that in talking about why there hasn't been a waiver of attorney work product privilege, courts often think about, well, the question is, is it likely to reach an adversary? [00:15:33] Speaker 05: And then that means, is the recipient likely to give it to the adversary? [00:15:37] Speaker 05: And if the recipient [00:15:38] Speaker 05: has common litigation interests with the disclosure disclosing party then it's fair to draw the inference that even absent an agreement even absent a meeting of the minds that the privilege has not been waived here so we're saying look the department needs to duly determine that it is necessary to the litigating functions of the united states to essentially to a significant extent bring these other folks onto the agency litigation team i mean that's just to fulfill our [00:16:01] Speaker 05: Statutory obligations under 516 and 517 of Title 28 USC, we need these people to be collaborating with us. [00:16:07] Speaker 05: And then the court ultimately ordered us to do it. [00:16:10] Speaker 05: Now, Georgia has been very careful to try not to request any documents from that post-consolidation period, but they have never denied that the logic of their statutory interpretation would clearly reach documents that were prepared because a court ordered us to join the group. [00:16:23] Speaker 04: Just to be clear, I know I keep harping on this, but I just want to make sure I have your position. [00:16:27] Speaker 04: You're accepting both sides of the common interest divide. [00:16:33] Speaker 04: The department's position is, if the documents are within the fold of a common interest arrangement, then they're off limits for FOIA. [00:16:43] Speaker 04: But if they're outside a common interest arrangement, then they're within FOIA's disclosure obligations, even if they would be protected by the work product group. [00:16:51] Speaker 05: That's right. [00:16:52] Speaker 05: That is the line that Judge Wilkinson drew in the Hunton and Williams opinion. [00:16:56] Speaker 05: And that is, we think, ultimately the right line. [00:16:58] Speaker 05: And there was a remand in that case to decide whether the initial conversations between research and motion, the makers of BlackBerry and the DOJ commercial litigation branch, had been pursuant to a common litigating interest or not. [00:17:10] Speaker 05: And there was no ultimate ruling in that case. [00:17:12] Speaker 05: We don't know how it played out. [00:17:13] Speaker 05: But the suggestion was, until there is an agreement and meeting in the minds to litigate together, not necessarily as co-parties, because in that case, the government hadn't even [00:17:21] Speaker 05: intervened yet. [00:17:22] Speaker 05: But until there's that agreement to involve the outside party as part of the agency litigation team, then it's hard to see how that's interagency. [00:17:31] Speaker 04: And when did that happen here? [00:17:33] Speaker 05: That happened here at least by July 28. [00:17:36] Speaker 05: And there was a phone call where all the parties talked to each other and agreed orally to a common interest arrangement that was then memorialized in an email shared with all parties that you can find. [00:17:47] Speaker 04: There's a couple of things that are withheld that are before that. [00:17:50] Speaker 04: I think there's a couple of emails that are before July 28. [00:17:53] Speaker 05: There's one email from earlier in the day on July 28, and there's one email from the prior day. [00:17:58] Speaker 05: They're on the same thread. [00:17:59] Speaker 05: The email from the prior day is headed Common Interest Communication, and it sets out an agenda for the following day's call, which is about forming a common interest agreement. [00:18:08] Speaker 05: The district court here said that it thought that the common interest agreement, although looming, was still in co-it and hadn't been formalized. [00:18:15] Speaker 05: We think that it's sufficiently bound up with the common interest agreement that was contemporaneously finalized that we can withhold it. [00:18:20] Speaker 05: But if this court disagrees, we're [00:18:22] Speaker 05: The more important principle we're trying to vindicate here is once that agreement has been made and no one can deny that has been made, we should withhold from that point forward. [00:18:29] Speaker 05: So if at the end of the day, those are two documents we had to let go, we could live with that. [00:18:33] Speaker 05: But we do think that they were legitimately withheld as common interest communications. [00:18:36] Speaker 05: Two days. [00:18:36] Speaker 04: The dividing line for you is when was the agreement consummated? [00:18:41] Speaker 05: Well, it's primarily when the department determined that it was necessary to litigate in common with the other parties. [00:18:46] Speaker 05: But yeah, then the other party is confirmed. [00:18:48] Speaker 05: They also understand themselves to be litigating with common and not, as in American oversight, divergent interests. [00:18:55] Speaker 05: I should note as well that two days before the email memorializing the common interest agreement, the government had filed a statement of interest in [00:19:03] Speaker 05: One of the other cases that had been filed much sooner and there was already a motion to dismiss pending and we popped in to say, look, we care about how the court construes the Voting Rights Act. [00:19:12] Speaker 05: In this case, we have a case of our own. [00:19:13] Speaker 05: So, you know, we know as of July 26 that the government already was saying we have our own case. [00:19:17] Speaker 05: We care about how these cases are resolved. [00:19:19] Speaker 05: The July 27th email setting up the common interest phone call was, you know, in the wake of that. [00:19:25] Speaker 05: Again, we think it was all properly withheld, but the most important thing is that the materials after July 28th are in dispute. [00:19:32] Speaker 04: But I just want to understand, what is the principle? [00:19:36] Speaker 04: Is it when an agreement has been reached? [00:19:38] Speaker 04: Because you could say, one thing you said was the government filed a statement of interest. [00:19:42] Speaker 04: So that's the government's indication that it cares. [00:19:44] Speaker 04: You could say the same thing about the government's filing the lawsuit in June. [00:19:48] Speaker 04: That's an indication that the government cares about the subject matter area. [00:19:51] Speaker 04: But that's just the government sentiment. [00:19:53] Speaker 04: It doesn't have necessarily something to do with the other parties. [00:19:58] Speaker 04: And so what is the rule that you'd be looking for when the common interest arrangement has congealed enough that it fits within the work product privilege to an extent that FOIA doesn't allow piercing it? [00:20:11] Speaker 05: I think that, at a minimum, once the other parties litigating on the same side of the United States have agreed with the United States, yes, we're all, to some extent, on the same team here. [00:20:23] Speaker 05: We have 60 depositions to use among us. [00:20:26] Speaker 05: How are we going to allocate them? [00:20:27] Speaker 05: What document requests are we going to produce? [00:20:29] Speaker 05: What evidence do we need to file a PI motion? [00:20:32] Speaker 05: Once both sides have agreed that they're on the same team, that that- Once both sides agree they're on the same team, that's the way you look at it. [00:20:37] Speaker 06: I think so, but- And so how does that have to be manifested? [00:20:43] Speaker 05: Well, no one in this case has argued it has to be in writing. [00:20:46] Speaker 05: And I think that's right. [00:20:46] Speaker 05: Hunnin-Williams said an agreement doesn't have to be written, but an agreement there must be. [00:20:51] Speaker 05: We happen to have a written memorialization of a common interest agreement here that happened on a phone call. [00:20:57] Speaker 05: And I don't understand my opposing colleague to be arguing otherwise. [00:21:00] Speaker 05: They have said that they think that the agreement is insufficient because they think, for whatever reason, that there's not a common litigating interest in litigating the same claim before the same court against the same state law on the same schedule. [00:21:12] Speaker 05: But the agreement existed as of July 28th, I think we can. [00:21:15] Speaker 06: So if you had a memorandum to the file which simply said, an attorney by name from the Department of Justice has spoken with the attorneys from these six other lawsuits and everybody agreed that there was a common interest here whereby they should file, I don't know how detailed it has to be, but file jointly. [00:21:40] Speaker 06: in their challenge to the statute. [00:21:44] Speaker 05: Yes, that would be sufficient. [00:21:45] Speaker 05: And of course, in a FOIA case, the government has to come forward with declarations that state, you know, the basis for why it's withholding the document and why it believes it to be both intra-agency and privileged. [00:21:55] Speaker 05: And so we'd get a declaration from someone who say, you know, I wrote this memorandum to file and I can also speak directly from my own experience and knowledge that I had this conversation with the council. [00:22:04] Speaker 06: In response to the chief judge, your point was, [00:22:08] Speaker 06: Clearly, when there's a written agreement, it's easier to determine that there's common interest, but there may be previous communications which are also sufficient. [00:22:23] Speaker 05: That's exactly right. [00:22:24] Speaker 05: I mean, this comes up in so many different contexts. [00:22:27] Speaker 05: You know, the False Claims Act, where there's a Relators Council and Government Council. [00:22:30] Speaker 05: And the best practice is to try to memorialize this as soon as possible in writing. [00:22:34] Speaker 05: But these conversations can happen when one person picks up the phone and calls the other. [00:22:38] Speaker 05: And they agree on the spot that they're litigating together. [00:22:41] Speaker 05: And so I think it would be impractical. [00:22:43] Speaker 05: And there's not really a strong basis for requiring any particular procedural formality to this. [00:22:49] Speaker 05: The point is that the agency has decided, OK, you [00:22:52] Speaker 05: you know, for purposes of this agency project, which happens to be litigating before the federal courts, you are part of the team here and we can share, but don't have to share privileged material with each other. [00:23:01] Speaker 05: And our adversaries, you know, and I think, you know, our co-parties in this case, you know, relied in good faith on the government's representation that the other side wasn't going to be able to litigate on wits borrowed from us, you know. [00:23:14] Speaker 06: I heard you say that, but then I thought in response to the chief judge's question, you backed off of that. [00:23:20] Speaker 06: that it's not enough that the government has decided that the public interest is such that these seven parties ought to work together. [00:23:35] Speaker 05: That yeah I the most salient point I mean the question here is whether this is intra agency right we're looking at things from the agency's perspective so the Department of Justice saying you need to be part of this litigating team is the most important thing happening here and then I recognize secondarily the fact that the other party said yeah okay that's what you know we are not. [00:23:51] Speaker 05: We do not have dire urgent interests. [00:23:52] Speaker 05: We are not, as in American oversight, negotiating or advocating with each other. [00:23:56] Speaker 05: We are figuring out how are we going to structure discovery? [00:23:59] Speaker 05: What witnesses do we want on our side? [00:24:01] Speaker 05: Who do we want to depose? [00:24:02] Speaker 05: What document requests? [00:24:04] Speaker 05: And then ultimately, you know, go right. [00:24:06] Speaker 02: So is that true? [00:24:07] Speaker 02: I mean, I would think in a large defense or plaintiff group, I would describe exactly what goes on as negotiating. [00:24:15] Speaker 02: You are trying to persuade each other to [00:24:20] Speaker 02: with the litigation in the way that each distinct lawyer who's representing a distinct client thinks is the right way to proceed with the litigation. [00:24:28] Speaker 02: It's not as if you're now all magically aligned and don't have distinct interests. [00:24:34] Speaker 02: You're trying to influence each other to get to the best result, yes, but it's still deliberative in a sense, isn't it? [00:24:41] Speaker 05: Your honor, once you're in a common interest agreement, it's moved from the point of having different interests to just talking about strategy. [00:24:47] Speaker 05: A common interest agreement would be pointless if the party's already agreed about everything to do. [00:24:52] Speaker 05: The whole point of this is to streamline, to get on the same page, to make one filing. [00:24:56] Speaker 02: The common interest agreement presupposes. [00:24:58] Speaker 02: The thing that I go back to is, so the American oversight opinion gives this example of a health insurance company. [00:25:05] Speaker 02: that says, we are completely and totally aligned with the administration's health care reform goals. [00:25:11] Speaker 02: We want to see exactly at some level of generality the same kind of bill go through. [00:25:17] Speaker 02: But that opinion says that that company is never going to be regarded as intra-agency because it has a distinct stake in what the agency does. [00:25:28] Speaker 02: And I'm not sure why you wouldn't say the exact same thing here. [00:25:32] Speaker 02: The other parties have a distinct stake in what [00:25:35] Speaker 02: what DOJ decides to do and in the outcome of the litigation. [00:25:38] Speaker 05: So if I may, your honor, let me elaborate on the hypothetical with two alternatives. [00:25:41] Speaker 05: Alternative one is the United States is litigating in federal court, the, you know, constitutionality of that law and the hospital or health care center, sorry, I forget what it is, has intervened and we're on the same side and we're litigating together. [00:25:54] Speaker 05: And in that context, we think it would be any work product exchange would be intra-agency. [00:25:58] Speaker 05: Now let's just say that we agree and we have good ideas, you know, we have similar ideas and we want to be in dialogue with, you know, the regulated industry about what's going on here. [00:26:06] Speaker 05: Well, the only privilege that I think could conceivably apply there, if any, would be the delivery process privilege. [00:26:12] Speaker 05: The privilege there itself would be dubious, but, you know, I think certainly the interagency would do some work there because you have [00:26:18] Speaker 05: This is outside any recognized common law context where cooperation is legitimate. [00:26:23] Speaker 05: We're talking about the government as policymaker and as regulator. [00:26:28] Speaker 05: I just think that this is so meaningfully different. [00:26:30] Speaker 05: We are talking about litigation before a federal court, and we just know so clearly that Congress intended to sweep in the common law work product privilege that just as a matter of statutory interpretation, the term intra-agency has to be given a pragmatic reading that will achieve [00:26:44] Speaker 05: Congress's purpose of ensuring that Exemption 5 does not function as a ready circumvention mechanism. [00:26:50] Speaker 05: I mean, it's been a while since the Supreme Court has had occasion to repeat this, but it said in the Weber Aircraft case that it's consistently rejected any reading of Exemption 5, under which FOIA would become a ready pathway to backdoor discovery. [00:27:04] Speaker 05: And no court before this court, and the district court in this case, in the few cases that this has ever come up, [00:27:12] Speaker 05: thought that these documents would not be protected. [00:27:15] Speaker 05: So I've already pointed, Your Honor, to the Hunt and Williams opinion. [00:27:18] Speaker 05: Even the dissenting judge in that case, I think, would have found the interagency condition satisfied here, where we're talking about co-parties. [00:27:28] Speaker 05: But there are a variety of other district court decisions that we laid out in two pages of our brief in a very long string site in which courts have recognized this. [00:27:34] Speaker 05: And so I don't think [00:27:35] Speaker 05: You know, to the extent there's any novelty about this case or discomfort about how it feels different than climate or American oversight. [00:27:41] Speaker 05: I think that's just simply a product of the fact that no one had ever thought you could get. [00:27:45] Speaker 05: I mean, very few people ever thought you could get the Department of Justice's work product shared with allied parties through the mechanism of FOIA. [00:27:52] Speaker 05: So that certainly the burden of any kind of novelty here does not fall on the government. [00:27:57] Speaker 04: Let me make sure my colleagues don't have additional questions at this time. [00:27:59] Speaker 04: We'll give you a little time for rebuttal. [00:28:01] Speaker 04: Thank you. [00:28:02] Speaker 04: Thank you. [00:28:14] Speaker 04: Miss Thate. [00:28:15] Speaker 01: Good morning, Your Honors. [00:28:16] Speaker 01: Anuja Thate on behalf of Amiki. [00:28:19] Speaker 01: As you all know, Amiki are legal organizations co-litigating with DOJ in the underlying FOIA action, and whose privilege litigation strategy communications are what is at issue in this FOIA appeal. [00:28:30] Speaker 01: We do appreciate the opportunity to address the court today, and I, of course, welcome any questions you all may have. [00:28:36] Speaker 01: I would propose to use my time to focus from our perspective on, I think, two key issues. [00:28:42] Speaker 01: Number one, I would like to speak to the convergence of interest issue and our reliance here on longstanding common law privileges. [00:28:49] Speaker 01: And then number two, I would like to take a moment to underscore what we feel are really untenable implications for judicial economy and the conduct of multiparty litigation more generally. [00:28:59] Speaker 01: Should FOIA somehow be allowed here in this [00:29:02] Speaker 01: new context to be used as a backdoor for the kind of privileged litigation strategy communications we're talking about. [00:29:09] Speaker 01: Turning first then to our convergence of interests and reliance on common law, to reiterate what my colleague recently said, the purpose of Exemption 5 is, as the Supreme Court has held, very clearly to protect those communications normally privileged in civil discovery. [00:29:25] Speaker 01: And I think there's no dispute. [00:29:26] Speaker 01: That's what we're talking about. [00:29:28] Speaker 01: And what we're talking about solely are communications with DOJ after DOJ filed suit. [00:29:34] Speaker 01: So these are not, again, communications that Georgia could have obtained in discovery. [00:29:38] Speaker 01: I'm trial counsel in the Georgia litigation. [00:29:40] Speaker 01: They have not tried to obtain these communications through discovery, I think, rightfully and understandably so. [00:29:46] Speaker 01: And so to get at some of the discussion earlier, this case is not about lobbying an agency to take action. [00:29:54] Speaker 01: filed its lawsuit and that's what that's what's basically the distinction factor between all of the cases on which George is relying on which almost all of the cases have really been adjudicated to this point. [00:30:07] Speaker 01: So again, this is again about the straightforward context of post litigation communications. [00:30:11] Speaker 04: Can I ask you about that? [00:30:13] Speaker 04: So you're representing one organization, but there's an umbrella of organizations that are involved here. [00:30:19] Speaker 04: And you cited an interesting case in your brief, the lawyers committee versus DOJ case. [00:30:23] Speaker 04: And in that case, one of the organizations here [00:30:27] Speaker 04: tried to get at documents that DOJ had. [00:30:29] Speaker 04: And that had both deliver process and work product in it. [00:30:33] Speaker 04: For present purposes, let's just assume away deliver to process. [00:30:35] Speaker 04: And let's just talk about work product. [00:30:37] Speaker 04: Under your view, was a lawyer's committee's efforts to get those documents just wrong under the work product privilege? [00:30:44] Speaker 04: Because it seems to me a lot of the same arguments would apply here. [00:30:47] Speaker 04: It was getting at strategy documents. [00:30:49] Speaker 04: It was after the government had decided that they were going to align themselves with the, I think it was a state there. [00:30:54] Speaker 04: I can't remember exactly who it was. [00:30:56] Speaker 04: But, and then there were documents shared back and forth about strategy. [00:31:01] Speaker 04: before the tribunal. [00:31:02] Speaker 04: It's the Supreme Court. [00:31:04] Speaker 04: But the Lawyers Committee tried to get at those documents. [00:31:08] Speaker 04: And I take it that your submission now, though, would preclude that. [00:31:12] Speaker 01: Thanks for that question. [00:31:13] Speaker 01: I think it's a very good question. [00:31:14] Speaker 01: Of course, Lawyers Committee is one of the amici organizations here on whose behalf I'm speaking. [00:31:19] Speaker 01: And so that case, I think a couple of things. [00:31:22] Speaker 01: One, I obviously can't speak specifically to the strategy there in that case. [00:31:25] Speaker 01: But it is distinguishing in some circumstances because it's not [00:31:29] Speaker 01: It wasn't a co-party situation. [00:31:30] Speaker 01: It's a little different. [00:31:31] Speaker 01: It was the Solicitor General submitting an amicus on behalf of a state in the state's pending action. [00:31:37] Speaker 01: So I think factually, there's obviously a distinctive scenario there. [00:31:41] Speaker 04: But I think- Would you actually draw that distinction so you think that when the United States government decides that they're going to file on the same side of the state and then has collaborative discussions with the state about how they're going to present oral argument, that that's still something that FOIA allows the other side to get their hands on? [00:31:55] Speaker 01: So I think more to your point, Your Honor. [00:31:58] Speaker 04: They're not co-parties. [00:31:58] Speaker 04: They're actually a lot. [00:31:59] Speaker 04: They've decided that they're going to argue on the same side, and they're going to present argument together. [00:32:04] Speaker 01: Your Honor, I think, very frankly, looking at it now, I think we disagree with the approach taken in that case. [00:32:10] Speaker 01: I think the one thing I do want to say is that here, I don't think we have a close call because we are talking really about co-parties. [00:32:17] Speaker 01: I think the question about convergence, about common interests, is probably a different question when you consider a case like that. [00:32:23] Speaker 01: But I do think here under the principles we're articulating here, it should probably rightfully preclude discovery under FOIA of those communications as well. [00:32:33] Speaker 01: But again, like I was speaking to here, there is no real distance in the way that that case might have presented what we're talking about are essentially co-litigants. [00:32:44] Speaker 01: And I think it's obvious here why we as co-litigants relied on common law privileges that were almost universally well recognized here. [00:32:51] Speaker 01: And I think it's also, again, why the district court ordered consolidation, why we've proceeded jointly at discovery, in briefings, at hearings, including because the other side has objected to us filing separate briefs on occasion. [00:33:06] Speaker 01: And so again, we fully expected in this circumstance that basic privileges should apply. [00:33:11] Speaker 01: And I really do think that that is the only tenable answer, both under the text of the statute and under the practical implications you all have been speaking to today. [00:33:21] Speaker 01: And I did want to speak briefly to the point about disinterestedness in the American Oversight decision, because of course, that ruling came down after we had filed our supplemental brief. [00:33:32] Speaker 01: And in essence, I think we agree [00:33:34] Speaker 01: with the explanation that the Department of Justice has given and drawing this distinction between deliberative process cases and cases, whereas here the Department of Justice, the litigating function, its function is to litigate. [00:33:47] Speaker 01: It has made its decision to sue and therefore after that has brought in third parties in order to carry out that litigated function. [00:33:54] Speaker 01: And so we again think that it's pretty much a square peg in a round hole to impose [00:34:00] Speaker 01: disinterested requirement in this context. [00:34:03] Speaker 04: Which is the words that were used by the dissent in American oversight. [00:34:07] Speaker 01: Yes, your honor. [00:34:08] Speaker 01: I don't know if that's where I got it or not, but I think it's the right explanation. [00:34:14] Speaker 01: And to be clear, we obviously represent our own clients. [00:34:18] Speaker 01: We are not suggesting that we are consultants. [00:34:21] Speaker 01: We are co-litigants. [00:34:22] Speaker 01: And in any common interest scenario, that's the whole point of the common interest agreement is to [00:34:28] Speaker 01: be able to exchange ideas, be a sounding board in the context of representing different parties. [00:34:33] Speaker 01: And that's the perspective that we're entitled to share with co-parties. [00:34:38] Speaker 01: And so again, as with any statute, Congress should and must be presumed to legislate in respect of basic common law principles. [00:34:46] Speaker 01: And we think that applies especially so here when the whole purpose of Exemption 5, as I think there's no dispute, is to protect basic discovery privileges. [00:34:57] Speaker 02: The deliberative process privilege is a basic common law discovery privilege, right? [00:35:01] Speaker 01: Certainly, Your Honor. [00:35:02] Speaker 01: And I frankly think the American Oversight Line of Cases is appropriate when it comes to talking about the deliberative process privilege, because the question there, the question, of course, motivating the enactment of FOIA, is when you're in the lead up to a governmental decision, the public should be entitled to know about lobbying efforts. [00:35:22] Speaker 01: I think that's a distinctive scenario than when you're talking about the set of privileges. [00:35:27] Speaker 01: We're talking about litigation privileges, where once the government has made its decision for the DOJ, the decision that the DOJ makes is to sue, or if their defendants, when they get sued, what to do about it. [00:35:41] Speaker 01: And so I do think that it is a very different calculus. [00:35:46] Speaker 01: And to shoehorn the intra-agency analysis [00:35:50] Speaker 01: in the same way and in both sets of circumstances just doesn't work for, I think, the reasons that other courts have recognized. [00:36:00] Speaker 04: Make sure my colleagues don't have any additional questions for you. [00:36:02] Speaker 01: If I may, Your Honor, just very briefly speak to the practical impact that we hope to get to. [00:36:06] Speaker 04: If you can keep it very brief. [00:36:07] Speaker 01: Sure, very brief. [00:36:09] Speaker 01: So again, the outcome that Georgia seeks, I think, would not only unfairly disadvantage DOJ and allied parties like us, but also severely harm judicial economy in this case and elsewhere, of course, especially multiparty litigations. [00:36:21] Speaker 01: Courts want and should want parties to be able to streamline their proceedings, their papers, their discovery. [00:36:27] Speaker 01: And indeed, opposing counsel prefers that as well. [00:36:31] Speaker 01: the implication that this type of material would be discoverable under foil would severely upend if not preclude that entirely. [00:36:39] Speaker 04: Thank you, Council. [00:36:40] Speaker 01: Thank you, Your Honors. [00:36:47] Speaker 03: Chair. [00:36:47] Speaker 03: Good morning, Your Honors. [00:36:49] Speaker 03: Dean Sher representing the state of Georgia and numerous public officials in Georgia. [00:36:56] Speaker 03: We've heard a lot today about the work product doctrine and waiver and those sorts of things. [00:37:00] Speaker 03: And as I'll explain in a moment, the court doesn't need to reach those questions because DOJ's attempt to invoke exemption five fails at the threshold, internality requirement as made clear, not just by the statutory text, which I think it's important to focus on and by Klamath and by the recent American oversight decision, [00:37:23] Speaker 03: But DOJ's argument fails for all of those reasons, as Judge Garcia indicated in his comments a little bit earlier. [00:37:32] Speaker 03: But before I get to that, I'd like to step back for just a moment and talk about why this case is important to Georgia and its public officials and its citizens. [00:37:44] Speaker 03: And that is because, as the Supreme Court said in Klamath and in the context of interpreting Exemption 5, and as this court implicitly reiterated just a few months ago in American Oversight, FOIA's dominant objective is disclosure and not secrecy. [00:38:01] Speaker 03: And here it's especially important to Georgia and its citizens and public officials [00:38:06] Speaker 03: that DOJ not be allowed to keep secret whatever communications with outside groups may elucidate its decision not only to sue Georgia and its public officials, but to defame the state's elected officials by falsely accusing them of acting in a racially discriminatory way, for enacting a voting integrity law that by all fair accounts [00:38:32] Speaker 03: has not, in fact, suppressed minority voting, as DOJ claimed it would, but has led instead to increased participation in voting among all demographic groups. [00:38:44] Speaker 04: So I understand why you've started there. [00:38:46] Speaker 04: But I take it the way the federal government would respond is to say what this case is really about is not about that. [00:38:52] Speaker 04: It's about whether you can get your hands on our strategy. [00:38:55] Speaker 04: And so just focusing on that for a second, under your argument, [00:39:01] Speaker 04: If the district court in litigation like this says, I need everybody on that side to come together on one brief, and that brief's, the motion, let's just say it's a motion, is gonna have to be 50 pages combined. [00:39:15] Speaker 04: You all work it out, figure out how you're gonna do it, but that's all you're gonna be able to do. [00:39:18] Speaker 04: And then the parties get together, and I think something like this happened in this case. [00:39:21] Speaker 04: The parties get together, they have notes back and forth, here's what we wanna prioritize, argument A really works for me, argument B, I think, [00:39:28] Speaker 04: We can suppress. [00:39:29] Speaker 04: We got to come together. [00:39:30] Speaker 04: They share all kinds of back and forth about the interstices of the strategy that they have. [00:39:36] Speaker 04: Your view is that the other side gets to come into court under FOIA and get their hands on all of that while the litigation is ongoing. [00:39:42] Speaker 03: If they create records that are subject to FOIA, then yes, but there's no requirement that they create records as part of that process. [00:39:53] Speaker 03: They can go through that process in a Zoom call. [00:39:55] Speaker 03: They can put up PowerPoint. [00:39:56] Speaker 03: So they have to do everything orally. [00:39:58] Speaker 04: I'm sorry? [00:39:58] Speaker 04: They have to do everything orally. [00:39:59] Speaker 04: They can't exchange emails about strategy. [00:40:03] Speaker 03: Well, if they exchange email about strategy and they don't satisfy the internality requirement, then they're going to have to disclose them. [00:40:13] Speaker 03: That's correct. [00:40:14] Speaker 03: Right. [00:40:16] Speaker 04: So that's quite breathtaking. [00:40:19] Speaker 04: I mean, email, you know this better than anybody. [00:40:21] Speaker 04: Email is the point of the realm for lawyers engaging in business all the time. [00:40:25] Speaker 04: And they attach documents. [00:40:27] Speaker 04: And they're going to exchange drafts. [00:40:29] Speaker 04: And they're going to exchange comments about how we're going to strategize for oral argument. [00:40:32] Speaker 04: And all of that, the other side gets their hands on in the course of the litigation that's going to amazingly benefit them at the expense of the side they're litigating against, because OIA uses the term intra-agency. [00:40:45] Speaker 03: Well, and that is the term that FOIA uses, right? [00:40:50] Speaker 03: And I think that's a good place to start. [00:40:53] Speaker 03: Yes, it may be that in light of the American Oversight ruling and Klamath, if they were taking Klamath seriously, they may need to do things a little differently than they're doing. [00:41:03] Speaker 04: The only way they can do things differently, just so I understand, your point is that they have to do all of this orally. [00:41:11] Speaker 04: or on oral prevent the other side from getting their hand well or or by or by zoom calls or by or by shared documents I mean don't mean by zoom is so what if you share documents on zoom I wonder about that because the documents are actually there so I'll say if they don't get downloaded to the agency servers they're they're not an agency records right it's a 50 page brief and what they need to do is they need to have a conference call [00:41:35] Speaker 04: Or a zoom call, I'm just I'm including zoom within calls because I get the oral part of it. [00:41:40] Speaker 04: I'm not too worried about the video interface, but the point is that they can't actually exchange comments on the documents by marking up the documents. [00:41:48] Speaker 04: They can only say in a call. [00:41:51] Speaker 04: So rather than saying, I'm going to send you my markup. [00:41:54] Speaker 04: they have to say, I can't send you the markup because that's going to be foiable. [00:41:59] Speaker 04: So let me go through and describe to you orally the 50 pages of stuff that I have for you on your document. [00:42:06] Speaker 03: They certainly can do that. [00:42:09] Speaker 03: And it's not unusual for government litigators to litigate with an eye towards FOIA. [00:42:14] Speaker 03: And it's not unusual for people working with the government to litigate with the recognition that what they provide to the government may become a government record that is then FOIA-able. [00:42:25] Speaker 03: But my point is, [00:42:27] Speaker 03: Georgia's purpose in seeking these documents is not so much the litigation. [00:42:33] Speaker 03: The litigation is going very well for Georgia. [00:42:37] Speaker 03: Their witnesses on the issue of racial discrimination completely fell apart at the preliminary injunction hearing. [00:42:48] Speaker 03: but Georgia and its citizens are entitled to know, did the Justice Department know at the time that it brought its lawsuit and in the process defamed Georgia and its public officials that they knew that case was going to fall apart? [00:43:05] Speaker 03: And that's the reason that we want these documents. [00:43:08] Speaker 04: I think the question in the case is, to the extent that there are documents that speak to that issue that aren't work product, [00:43:15] Speaker 04: then FOIA allows you to get them. [00:43:16] Speaker 04: The question is, if there are documents that may or may not speak to that issue, but are work product, does FOIA allow you to get those documents for that purpose, even though there's a work product doctrine that says, as a general matter, the other side doesn't get to see your legal strategy? [00:43:31] Speaker 03: Well, let's start with the text of the statute, right? [00:43:35] Speaker 03: As applied here, the statute says that in order to invoke Exemption 5, the record at issue has to be intra-agency. [00:43:45] Speaker 03: What does that word intra mean? [00:43:47] Speaker 03: It means, according to the dictionary, it means within the agency, okay? [00:43:53] Speaker 03: On the plain text of the statute, there's no way that the LDF and other parties working with the Justice Department are within the Department of Justice. [00:44:04] Speaker 03: So under the text, they fail. [00:44:07] Speaker 03: Would you say the same thing about American Oversight? [00:44:10] Speaker 03: No, I think American Oversight reached exactly the right result. [00:44:15] Speaker 03: Under the text? [00:44:16] Speaker 03: Under the text, yeah. [00:44:18] Speaker 03: And that's because? [00:44:20] Speaker 04: Well, and and and that's because everything you just said isn't true about that arrangement also. [00:44:26] Speaker 03: No, American Oversight held that congressional staffers were not within the agency that they were consulting with, and therefore rejected the application of Exemption 5 in that circumstance. [00:44:41] Speaker 04: That's fair. [00:44:42] Speaker 04: I'm talking about the circumstances in which the consultant corollary still applies, even though it's dealing with people who are not formally within the agency. [00:44:50] Speaker 03: And let's talk about the genesis of the consultant corollary doctrine, right? [00:44:55] Speaker 03: It goes back to Justice Scalia, who suggested in his dissent in the Julian case that, well, maybe we don't have to take this term intra-agency to be quite as literal as one might initially think. [00:45:14] Speaker 03: And he said, if a [00:45:17] Speaker 03: if someone like a consultant has what he called a government conferred capacity, then that person might be considered as being within the agency in the way that a, say a paid consultant might be considered to be within the agency, or even an unpaid consultant might be considered to be within the agency, right? [00:45:45] Speaker 03: And then Justice Souter in Klamath sort of picks that dissent up and says, we're not going to decide whether the consultant corollary is valid, because it is still in tension with the text. [00:45:59] Speaker 03: But assuming the consultant corollary is valid, we will allow government agencies to, if they can establish that someone has a government conferred capacity [00:46:14] Speaker 03: And, Ann Klamath made clear that there was another condition that was essential too, and that is that the person who is claimed to be a consultant also has to have no independent interest in the matter at issue. [00:46:31] Speaker 03: Um, and American oversight was was very clear about that. [00:46:35] Speaker 03: And so this this case is really a much easier case that American than American oversight. [00:46:42] Speaker 03: Yeah, independent interest idea. [00:46:43] Speaker 04: So, um, [00:46:45] Speaker 04: I'm thinking of a situation in which, and we talked a little bit about this with Amicus Council, a situation in which the federal government is presenting a case in the Supreme Court alongside a state. [00:46:57] Speaker 04: And I can remember situations in which your client, the state of Georgia, was on the same side, and the Solicitor General's office [00:47:05] Speaker 04: already decides that they're going to file a brief. [00:47:07] Speaker 04: And they've been granted argument time to argue alongside Georgia. [00:47:11] Speaker 04: And Georgia and the US exchange records. [00:47:15] Speaker 04: They don't do it orally. [00:47:16] Speaker 04: They exchange records and emails about oral argument strategy. [00:47:20] Speaker 04: When the other side says this, here's how we're going to respond. [00:47:23] Speaker 04: I think their main point is going to be x. Here's how we respond to y. Your view is that the other side gets to file under FOIA and get their hands on all that. [00:47:31] Speaker 04: And if they were fast enough, they could get their hands on all that before argument. [00:47:34] Speaker 03: And if you're concerned about disclosure, the better course would be to do it orally or on a Zoom call or with a shared document or something like that. [00:47:44] Speaker 04: You'd be fine with that. [00:47:45] Speaker 04: I know you understand the logical implications of this. [00:47:48] Speaker 04: Sure. [00:47:48] Speaker 04: And that would be true of Georgia. [00:47:49] Speaker 04: So Georgia's communications with the United States in preparation for a Supreme Court argument are discoverable, so to speak, under FOIA by the other side in preparation for that oral argument. [00:48:02] Speaker 03: Anytime you're dealing with the federal government as an outside lawyer, you know to be careful about anything you send to them, right? [00:48:09] Speaker 03: Because you realize it may well be foible. [00:48:13] Speaker 03: And so I don't think that's a big deal for lawyers working with the federal government. [00:48:19] Speaker 03: You just kind of expect that. [00:48:23] Speaker 03: it doesn't seriously reduce the efficiency of the collaboration or anything like you can still, you can still collaborate a lot and very effectively. [00:48:31] Speaker 03: And, you know, and with zoom and shared documents and other technology, it's even easier to do it now than it was 20 years ago and not create government records that will be for you. [00:48:42] Speaker 02: Um, so council, there would obviously be, as the chief judge is exploring a lot of, uh, [00:48:48] Speaker 02: serious practical consequences to this rule in this context. [00:48:52] Speaker 02: In their brief, the government also suggested that ruling for you here would call into doubt whether communications could be deemed intraagency in other situations, including where [00:49:06] Speaker 02: DOJ represents non-agency personnel in litigation. [00:49:11] Speaker 02: So if DOJ is representing a member of Congress under your sort of strict textual approach, those wouldn't be deemed intra-agency either. [00:49:21] Speaker 02: Did you have a distinction of those hypotheticals? [00:49:26] Speaker 03: Yeah, in that circumstance, it would not be deemed intra-agency. [00:49:33] Speaker 03: But the [00:49:36] Speaker 02: So there would essentially just be no attorney-client privilege at all where DOJ is representing non-agency personnel. [00:49:43] Speaker 03: Well, there may well be some other way of protecting those communications. [00:49:51] Speaker 03: And of course, as Your Honor mentioned in the American Oversight case, [00:49:55] Speaker 03: You know, to the extent that this is an issue, it's something that can be taken up with Congress. [00:50:01] Speaker 03: And they can amend FOIA. [00:50:03] Speaker 03: But there's no escaping the language of Exemption 5. [00:50:10] Speaker 03: It says intra-agency, which means within the agency. [00:50:14] Speaker 03: And of course, the Supreme Court has so far at least [00:50:19] Speaker 02: But that one specific argument on this is essentially that once a formal decision is made to litigate the case, that that's effectively bringing these outside groups onto the government's team. [00:50:31] Speaker 02: And so at least you can tell a story about how you would regard that as within the agency. [00:50:37] Speaker 02: Yeah, that's their argument. [00:50:38] Speaker 03: And it's a very creative response to American oversight. [00:50:42] Speaker 03: But there's no textual basis for it. [00:50:46] Speaker 03: I mean, we heard the LDF just say, we are not part of the Justice Department, right? [00:50:54] Speaker 03: And it may well be that the enemy of my enemy is my friend, but it's a step much, it's a much longer step to say the enemy of my enemy is actually part of me. [00:51:08] Speaker 03: And that's essentially the argument that the Justice Department is making here. [00:51:13] Speaker 03: And that just can't be right and is not right under the statutory language. [00:51:19] Speaker 03: And it's not right under Klamath. [00:51:22] Speaker 03: Again, Klamath imposes those two necessary requirements that there must be a government-conferred capacity. [00:51:30] Speaker 03: Now, if DOJ had said to all these lawyers, we're going to point you as special [00:51:38] Speaker 03: assistant United States attorneys and, you know, get your clients to agree to this arrangement and you can represent both your clients and you can work with us. [00:51:48] Speaker 03: That would be a government conferred capacity that they conceivably could do, but they haven't done anything like that here. [00:51:58] Speaker 04: Can I ask why did Georgia not ask for the documents that post date the consolidation? [00:52:05] Speaker 03: Well, as I mentioned earlier, our main concern is finding out why the Justice Department brought this lawsuit paired with such defamatory comments about the state and its elected officials. [00:52:23] Speaker 03: And we think those are likely to have occurred in the early stages of the litigation. [00:52:28] Speaker 03: If they are in their files, we obviously don't know yet exactly what's in these emails. [00:52:33] Speaker 03: But we suspect, again, [00:52:35] Speaker 03: you know, at the at the trial on the preliminary injunction hearing, their star witness, who's a who's a black Democratic senator, you know, who, who really disliked this law and opposed it consistently. [00:52:49] Speaker 03: And he offered all kinds of policy reasons why the law was why the law was wrong headed. [00:52:54] Speaker 03: But when asked point blank, do you think your do you think the Republican legislators who adopted this law were acting based on racism, or [00:53:04] Speaker 03: any discriminatory intent at all, he said, no, I'm not accusing anybody of racism. [00:53:11] Speaker 04: And from your perspective, the litigation is going perfectly well without getting your access to the documents. [00:53:16] Speaker 03: The litigation is going just fine. [00:53:18] Speaker 03: That's right. [00:53:18] Speaker 03: But, you know, but the defamation remains. [00:53:23] Speaker 03: And that's what we'd like to be able to respond to. [00:53:27] Speaker 03: And so I [00:53:30] Speaker 03: I'm happy to answer any other questions the court has. [00:53:33] Speaker 03: We haven't talked about Judge McFadden's alternative holding, which is that DOJ had not established a common interest at all. [00:53:44] Speaker 03: And so if that's [00:53:46] Speaker 03: If that's the new test for determining whether an arrangement satisfies the intra-agency requirement, the threshold requirement of Exemption 5, there's an alternative holding from Judge McFadden that says they hadn't established that through sufficient evidence, and we think he was absolutely right on that, and that's an alternative ground for a Herming. [00:54:09] Speaker 04: How would you define it? [00:54:11] Speaker 04: If there were this common interest, I know you resist the proposition, but just for purposes of argument, if there were a common interest notion that were imported into this area to delimit the bounds of what's foiable, notwithstanding the work product privilege, how would you define that line? [00:54:25] Speaker 03: Well, the case law typically defines common interest as an identity or near identity of legal interests. [00:54:33] Speaker 03: And that's not present here. [00:54:34] Speaker 03: for a couple of reasons. [00:54:36] Speaker 03: First of all, this law, SB 202, that they're challenging, it doesn't just have a couple of provisions. [00:54:43] Speaker 03: It has 53 different sections of which DOJ has challenged, as I recall, two sections, and the other plaintiffs have challenged maybe seven or eight, but there's generally not overlap among the sections of this law that are being challenged. [00:55:03] Speaker 03: And to the extent there is overlap, the legal theories are different. [00:55:09] Speaker 03: For example, the two provisions that the Justice Department has challenged as violations of the Voting Rights Act are also being challenged by another entity called Vote America, but on different grounds. [00:55:22] Speaker 03: They're challenging those provisions on First Amendment grounds rather than on voting rights grounds. [00:55:27] Speaker 03: And it was for reasons like that that Judge McFadden concluded that [00:55:32] Speaker 03: that even to the extent the common interest inquiry is relevant, DOJ had not established it here. [00:55:41] Speaker 03: And so that's an additional basis for affirming if the court wants to go that way. [00:55:48] Speaker 03: And so in sum, DOJ has failed to establish that the withheld records are internal to the agency or that the common interest doctrine applies. [00:56:00] Speaker 03: And although the court only needs [00:56:02] Speaker 03: needs to reach the internality point. [00:56:05] Speaker 03: Failure on either of those elements is, of course, fatal to DOJ's Exemption 5 withholding argument. [00:56:11] Speaker 03: And the district court was correct that the DOJ didn't establish either of those elements. [00:56:17] Speaker 03: And for all those reasons, the court should be affirmed. [00:56:20] Speaker 03: Thank you. [00:56:20] Speaker 03: Thank you, Mr. Chair. [00:56:25] Speaker 04: Mr. Sandberg will give you two minutes for a rebuttal. [00:56:28] Speaker 05: Thank you. [00:56:29] Speaker 05: I do have a few quick points I'd like to make. [00:56:31] Speaker 05: First, my opposing colleagues repeated suggestion of ways that the government could avoid FOIA by speaking on the phone, I think, tells you a lot about this case. [00:56:42] Speaker 05: FOIA is supposed to be about promoting transparency into the government, not getting the government to buy more Zoom accounts or not put things in writing. [00:56:51] Speaker 05: It's been clear from the start that even to the extent courts used to interpret FOIA exemptions narrowly, which the Supreme Court tells us not to do, [00:56:57] Speaker 05: The Congress said it's as narrowly as consistent with efficient government operations and having to go through, you know, red line or 50 page document on zoom is hardly consistent with with with government operations. [00:57:09] Speaker 05: I think if if you know If Congress really intended these documents to be produced along the lines my opposing colleague is saying he wouldn't be inviting us to find ways to avoid putting things in writing. [00:57:20] Speaker 05: Second, the the [00:57:22] Speaker 05: about the commonality of interest. [00:57:23] Speaker 05: The question here is about FOIA and the records at issue. [00:57:26] Speaker 05: The question is not whether the United States and NAACP, LDF are platonically aligned in all senses. [00:57:34] Speaker 05: We have our own lawsuits. [00:57:35] Speaker 05: They have their own lawsuits. [00:57:36] Speaker 05: We have our claims in this case. [00:57:37] Speaker 05: They have their claims in the case. [00:57:38] Speaker 05: The records at issue are about the 100% overlap, the claims that we are litigating in common. [00:57:43] Speaker 05: FOIA focuses on the records at issue, not whether in some greater sense the entities are best friends. [00:57:51] Speaker 05: I don't really understand my opposing colleague's suggestion that it's important to, you know, matter of public interest to get access to these documents here to find out why DOJ filed suit. [00:58:00] Speaker 05: If we had records about that, we produced it to them. [00:58:02] Speaker 05: We are only withhold, the records at issue here that are being withheld are from the common interest agreement forward. [00:58:08] Speaker 05: If there were documents, if there were conversations with NAACP before the US filed suit, they would have them right now because we produced everything from that time period. [00:58:16] Speaker 05: I completely agree with my opposing colleague. [00:58:18] Speaker 05: There's no escaping the language here, right? [00:58:20] Speaker 05: But the choice is about how to interpret that language. [00:58:23] Speaker 05: We have reckoned with that language. [00:58:24] Speaker 05: This court has reckoned with that language many times in the consulting context and has said it has a practical interpretation that is sensitive to the agency function at issue. [00:58:33] Speaker 05: So if agency consultants, you know, including just people who [00:58:38] Speaker 05: who the government files off an ad hoc email to doesn't retain as an expert or anything, just files off an ad hoc email, as in the National Institute of Military Justice case. [00:58:46] Speaker 05: If those people count as interagency, then certainly the department's formal determination that it's necessary to partner in litigation with co-parties comfortably fits with an interagency. [00:58:57] Speaker 05: And the last point I want to make is just about the ordering of these two things. [00:59:01] Speaker 05: Look, they're both merits inquiries. [00:59:03] Speaker 05: This court can do the internality first if it wants to. [00:59:06] Speaker 05: want to impress upon the court that if you if you take internally first, you need to sort of assume arguing the strongest possible case for the government to be able to do this. [00:59:15] Speaker 05: And I think this case is basically the strongest possible case for the government to be able to do this. [00:59:18] Speaker 05: We were ultimately ordered by a court to prepare joint filings here. [00:59:22] Speaker 05: So, you know, I think these documents are clearly privileged. [00:59:25] Speaker 05: It's easy to get past that issue. [00:59:27] Speaker 05: We ultimately don't care what order the court resolves them in. [00:59:29] Speaker 05: But I think [00:59:30] Speaker 05: The fact that my opposing colleague is so insistent on asking this court to do the interagency question first is because it wants you to be blind to the fact that Congress would not have intended clearly privileged work product communications, whether ordered by a court or extremely sensible for the government to be doing, would not intend those to be released under FOIA and was not encouraging the government to take steps to evade putting that in writing. [00:59:55] Speaker 05: If there are no further questions, we ask that the judgment be reversed. [00:59:58] Speaker 04: Thank you, counsel. [00:59:59] Speaker 04: Thank you to all counsel. [01:00:00] Speaker 05: We'll take this case under submission.