Landis v. Tailwind Sports Corporation ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES ex rel. LANDIS,
Plaintiffs,
v. Case No. 1:10-cv-00976 (CRC)
TAILWIND SPORTS CORP., et al.,
Defendants.
OPINION AND ORDER
Before the Court is Defendant Lance Armstrong’s Motion to Compel Production of
Documents in response to his First Set of Requests for Production of Documents to Plaintiff
United States [ECF No. 190]. On September 30, 2014, the Court issued an Opinion and Order
directing the Government to submit a supplemental filing regarding its assertions of privilege
over withheld witness interview memoranda prepared by law enforcement agents. 1 The Court
also provided the parties with general guidance regarding the boundaries of privilege in this case
based on its review of the parties’ briefing and the applicable case law. The Government has
now submitted all of the relevant memoranda for in camera review, along with its justifications
for withholding the documents, and Armstrong has provided a response. Upon consideration of
the memoranda, the motion, the oppositions and reply, and the supplemental briefs and
responses, the Court will grant the motion to compel in part and deny it in part.
I. Background
This qui tam action was brought by relator Floyd Landis in June 2010. The Government
intervened in the action in April 2013. The Government is represented by lawyers in the Civil
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The Opinion and Order also addressed ten other categories of documents sought by Armstrong.
Divisions of the U.S. Department of Justice (“DOJ”) and the U.S. Attorney’s Office for the
District of Columbia. The case is now in discovery.
Defendant Armstrong seeks production of witness interview memoranda prepared by
government agents over which the Government asserts work-product privilege. Armstrong’s
First Supplemental Br. at 3. Most of the memoranda were created during a prior criminal
investigation in the Central District of California into the alleged use of performance enhancing
drugs in professional cycling. That investigation lasted from 2009 until early 2012, when the
Government announced it would not be seeking an indictment against Armstrong. Id. at 4–5.
Specifically, Armstrong seeks 45 memoranda prepared by law enforcement agents summarizing
witness interviews conducted in the criminal investigation. Supplemental Br. In Supp. of United
States’ Claims of Privilege Over Interview Memoranda Ex. G. Many of these interviews were
conducted by the agents themselves. Armstrong also seeks seven memoranda summarizing
interviews conducted jointly by the civil and criminal teams after the relator filed this suit,
including five over which the Government also claims attorney-client privilege. Id. Ex. F.
Finally, Armstrong seeks 24 memoranda prepared by an agent of the United States Postal
Service (“USPS”) Office of Inspector General (“OIG”) that summarize interviews conducted
exclusively by the civil attorneys and investigators in this case. Id. Ex. E. The agent himself
conducted three of the 24 interviews over the phone without government attorneys present; the
rest were led by the civil lawyers.
II. Legal Standard
A witness interview memorandum prepared in anticipation of litigation can constitute
attorney work product. See Federal Rule of Civil Procedure 26(b)(3); Upjohn Co. v. United
States, 449 U.S. 383, 401 (1981). As the Court explained in its prior opinion, courts generally
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draw a distinction between pure “opinion” work product, which reflects an attorney’s mental
processes and is virtually never discoverable, and “fact” work product, which reflects only
relevant, non-privileged facts and is discoverable upon a showing of substantial need and
unavailability by other means. Op. and Order Sept. 30, 2014 at 8 (citing In re Sealed Case, 124
F.3d 230, 236 (D.C. Cir. 1997)). While distinguishing opinion from fact work product is
“inherently and necessarily fact specific,” United States v. Clemens, 793 F. Supp. 2d 236, 252
(D.D.C. 2011), the D.C. Circuit has instructed that notes and memoranda reflecting the
“opinions, judgments and thought processes of counsel” fall into the former category, whereas
those whose content has not been “sharply focused or weeded” by counsel fall into the latter, In
re Sealed Case, 124 F.3d at 236. Accordingly, courts in this district have held substantially
verbatim witness statements contained in interview memoranda that have not been “sharply
focused or weeded” by an attorney to be fact rather than opinion work product. See Clemens,
793 F. Supp. 2d at 252 (finding lawyers’ notes of an FBI witness interview to be fact work
product where the lawyers did not shape the interview and the memoranda “accurately depict[ed]
the witnesses’ own words”); In re HealthSouth Corp Sec. Litig., 250 F.R.D. 8, 12–13 (D.D.C.
2008) (attorney memoranda that were “nearly verbatim transcripts” of an FBI interview held to
be fact work product). Memoranda prepared by an agent of the attorney that meet the above
criteria may also be entitled to attorney work-product protection. United States v. Nobles, 422
U.S. 225, 238–39 (1975).
The Court previously ruled that Armstrong has demonstrated a substantial need for any
law enforcement memoranda created during the now-closed criminal investigation that contain
relevant fact work product only. Op. and Order Sept. 30, 2014 at 9–10 (citing Miller v.
Holzmann, Case No. 95-01231, 2007 U.S. Dist. LEXIS 16117, *4–5 (D.D.C. Mar. 8, 2007)
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(finding that qui tam defendant had substantial need for summaries of FBI witness interviews
that were created during a since-closed criminal investigation and shared with civil Government
lawyers)). The Court explained that because the civil lawyers litigating this qui tam action have
received a substantial advantage from having access to the fruits of the prior criminal
investigation, fairness dictates that both sides have equal access to relevant witness statements
developed by law enforcement in the prior criminal investigation. Id.III. Analysis
The Court will address each category of withheld memoranda in turn.
A. Memoranda Summarizing Investigatory Interviews During the Civil Investigation
(Exhibits E and F)
The Government asserts that the memoranda contained in Exhibits E and F of its
supplemental brief—mainly summaries of interviews conducted by the civil lawyers in this case
and drafted by an investigator on the civil litigation team—consist of opinion work product and
thus are not discoverable. Armstrong responds at the outset that the Government has waived any
claim of opinion work product by stating at the hearing that it was “not taking the position that
[the memoranda are] opinion work product.” Hr’g Tr. 18: 6–11, Sept. 15, 2014. But, the
memoranda before the Court at the time of the hearing consisted largely of law enforcement
memoranda created during the criminal investigation as opposed to those created by the civil
litigation team. The hearing also preceded the Court’s guidance regarding the application of the
work-product privilege to this matter and its in camera review of the specific memoranda at
issue. As a result, the Court will not treat Government counsel’s comment at the hearing as a
waiver and instead will address the merits of the Government’s arguments.
The memoranda contained in Exhibit E were authored by Special Agent M.J. Pugliese of
the USPS OIG, who was assigned to support DOJ’s civil investigation in July 2010, several
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months prior to any of the interviews. Supplemental Br. In Supp. of United States’ Claims of
Privilege Over Interview Memoranda Ex. B, Decl. of Michael Pugliese (“Pugliese Decl.”) Oct.
21, 2014 ¶ 3. Pugliese affirms that the civil attorneys “selected witnesses to be interviewed,
selected the topics to be addressed with each witness, selected the documents to be shown to
witnesses, led the interviews, and asked the questions.” Id. ¶ 6. He further states that he
participated in attorney strategy discussions and received interview outlines from attorneys prior
to interviews, and discussed the relevance of each interview with attorneys afterwards but before
drafting the memoranda. Id. ¶¶ 7–10. In some cases, after Pugliese circulated a draft
memorandum to the civil attorneys, “an attorney would call me to discuss [it] in order to ensure
that it reflected all information from the interview that was relevant to the legal theories of the
case under consideration.” Id. ¶ 10.
Special Agent Amy Fong of the USPS OIG drafted the memoranda in Exhibit F under
similar circumstances. Supplemental Br. In Supp. of United States’ Claims of Privilege Over
Interview Memoranda Ex. A, Decl. of Robert Chandler (“Chandler Decl.”) Oct. 21, 2014 ¶ 13.
The civil team shared its investigative work and discussed its “thinking about the defendants’
potential liability under the [False Claims Act] and the direction of [its] investigation” with the
criminal team—including Fong—prior to these interviews, “asked questions as necessary to
develop their legal theories” during the interviews, and reviewed the memoranda before they
were finalized after the interviews. Id. ¶¶ 13–15. Despite Armstrong’s arguments to the
contrary, these affidavits make clear that the civil attorneys “shape[d] the topics that were
covered” and “frame[d] the questions that were asked” in the interviews reflected in both
Exhibits E and F as part of their efforts to determine whether to intervene in this litigation. In re
HealthSouth, 250 F.R.D. at 12. The Court therefore finds that these materials “contain[] facts
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elicited in the course of a ‘litigation-related investigation’” that “‘necessarily reflect[ ] a focus
chosen by the lawyer,’” and thus constitute opinion work product entitled to privilege. Clemens,
793 F. Supp. 2d 236 at 252 (quoting In re Sealed Case, 124 F.3d 230 at 236). 2
B. Memoranda Summarizing Witness Interviews During the Prior Criminal Investigation
(Exhibit G)
The memoranda in Exhibit G of the Government’s supplemental brief—law enforcement
interview summaries from the criminal investigation—are a different kettle of fish. Unlike the
memoranda in Exhibits E and F, the Government has not established that an attorney “‘sharply
focused or weeded’” the content of the summaries. In re HealthSouth, 250 F.R.D. at 11 (quoting
In re Sealed Case, 124 F.3d at 236). Nearly half of the interviews took place without a
government lawyer present and the Court’s in camera review reveals that all of the memoranda
appear to be substantially verbatim agent summaries of open-ended discussions of issues relevant
to the criminal investigation. While a prosecutor involved in the investigation attests that he and
other members of the U.S. Attorney’s Office for the Central District of California set the general
direction of the investigation and the interviews, Supplemental Br. In Supp. of United States’
Claims of Privilege Over Interview Memoranda Ex. H, Decl. of Mark Williams (“Williams
Decl.”) Oct. 21, 2014 ¶ 5, it does not appear that these attorneys focused the content of the
memoranda themselves or participated in drafting them, as the civil lawyers did with respect to
the summaries drafted in furtherance of their investigation. Indeed, the Government itself
acknowledges that the memoranda in Exhibit G “are fact work product” that must be disclosed
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The Government has also asserted attorney-client privilege over five memoranda in Exhibit F
that summarize interviews of USPS employees. Supplemental Br. In Supp. of United States’
Claims of Privilege Over Interview Memoranda Ex. D. Armstrong previously indicated that he
does not seek production of three of the five memoranda due to the Government’s invocation of
attorney-client privilege. Armstrong’s First Supplemental Br. at 8, n.6. Because the remaining
two are substantially similar to the three uncontested memoranda, the Court finds that they are
likewise privileged.
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upon a showing of substantial need by Armstrong. Supplement to the United States’ Surreply at
2. And as the Court has previously determined, Armstrong has made the necessary showing.
Op. and Order Sept. 30, 2014 at 9 (“The Court agrees that Armstrong has demonstrated a
substantial need for any law enforcement memoranda containing only relevant ‘fact’ work
product[.]”). Accordingly, the Court finds that the Government must produce to Armstrong the
memoranda contained in Exhibit G. The Government may redact any portions of the
memoranda that reflect opinion work product, such as attorney notes or highlighting.
IV. Conclusion
For the foregoing reasons, it is hereby ORDERED that Defendant Armstrong’s Motion
to Compel [ECF. No. 190] is GRANTED in part and DENIED in part. The motion is denied as
it relates to the memoranda set forth in Exhibits D, E, and F and granted as it relates to the
memoranda set forth in Exhibit G. It is further
ORDERED that the Government shall produce to Armstrong the memoranda set forth in
Exhibit G after redacting and logging any portions that include opinion work product, such as
attorney notes or highlighting.
SO ORDERED.
CHRISTOPHER R. COOPER
United States District Judge
Date: January 12, 2014
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