Louise Trauma Center LLC v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LOUISE TRAUMA CENTER LLC, :
:
Plaintiff, : Civil Action No.: 20-3517 (RC)
:
v. : Re Document No.: 28
:
U.S. DEPARTMENT OF JUSTICE, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Louis Trauma Center LLC challenges the United States Department of Justice’s
withholding—in response to Plaintiff’s request pursuant to the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552—of multiple documents related to DOJ’s Office of Immigration
Litigation (“OIL”). DOJ contends that it is entitled to withhold some of the documents requested
by Plaintiff under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), asserting that the documents are
protected from disclosure by the attorney-client privilege, attorney work product privilege, and
deliberative process privilege. Plaintiff disagrees. Unable to reach a consensus, the parties filed
cross-motions for summary judgment. See Def.’s Renewed Mot. for Summ. J., ECF No. 28
(“Mot. for Summ. J.”); Pl.’s Cross-Mot. for Summ. J., ECF No. 31. 1
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DOJ has also redacted some documents pursuant to FOIA Exemption 6, 5 U.S.C. § 552(b)(6),
but Plaintiff does not contest that private personnel information is exempt from disclosure under
that exemption. See Louise Trauma Ctr., LLC v. Dep't of Just., No. 20-3517, 2022 WL 278771,
at *10 (D.D.C. Jan. 30, 2022) (“Louis Trauma I”).
In an earlier Opinion, Louise Trauma Ctr. LLC v. U.S. Dep't of Just., No. CV 20-3517,
2023 WL 2663007, at *1 (D.D.C. Mar. 28, 2023) (“Louis Trauma II”), this Court granted in part
and denied in part DOJ’s motion for summary judgment and denied Plaintiff’s cross-motion for
summary judgment. With respect to the documents for which the Court denied DOJ summary
judgment, the Court further ordered DOJ to either submit the documents for in camera review or
release the documents to Plaintiff. Id. at *6, 8–9. DOJ released some of the documents and
submitted the remainder to the Court for in camera review. After reviewing the remaining
withheld documents in camera, the Court grants Defendant summary judgment with respect to
some of the withheld documents but not others.
II. FACTUAL BACKGROUND
The Court presumes familiarity with the factual and procedural background described in
Louise Trauma I, 2022 WL 278771, at *1 and Louise Trauma II, 2023 WL 2663007, at *1–2.
As explained above, after the Court’s Opinion in Louis Trauma II, DOJ released additional
documents to Plaintiff. The following records, however, remain either withheld in full (“WIF”)
or redacted in part (“RIP”):
• Page concerning “Certification in OIL Cases.”
• Presentation titled “Crimmigration.”
• Presentation titled “Professional Responsibility in Immigration Litigation.”
• Presentation titled “Professional Responsibility Issues – OIL Litigation Part II.”
• Presentation titled “Professional Responsibility Advisory Office Training
PowerPoint.”
Accordingly, the Court reviews the above records in camera to determine whether they
are exempt from FOIA disclosure.
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III. LEGAL STANDARDS
FOIA requires the disclosure of requested government records other than “portions [of
the record] which are exempt” from disclosure by one of nine statutory exemptions. 5 U.S.C.
§ 552(b). This means that all “non-exempt portions of a document must be disclosed unless they
are inextricably intertwined with exempt portions.” Mead Data Cent., Inc. v. U.S. Dep't of the
Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defs. Of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citation omitted).
Under Federal Rule of Civil Procedure 56, the Court “grant[s] summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” “A fact is material if it is one that might affect the outcome of the
suit under the governing law.” Jeffries v. Barr, 965 F.3d 843, 859 (D.C. Cir. 2020) (cleaned up).
A dispute over a material fact is “genuine” if a reasonable jury could return a verdict for the
nonmoving party. Id.“To prevail on a motion for summary judgment in a FOIA case, ‘the defending agency
must prove that each document that falls within the class requested either has been produced, is
unidentifiable or is wholly exempt from the Act’s inspection requirements.’” Woodward v. U.S.
Marshals Serv., No. CV 18-1249, 2022 WL 296171, at *2 (D.D.C. Feb. 1, 2022) (quoting
Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980)).
Here, DOJ relies primarily on Exemption 5, which authorizes the Government to
withhold “inter-agency or intra-agency memorandums or letters that would not be available by
law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5); Mot. for
Summ . J. at 3. DOJ contends that the materials it has either redacted or withheld in full “would
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not be available by law to a party other than an agency in litigation with the agency” because it is
protected by (1) the attorney-client privilege, (2) the attorney work product privilege, or (3) the
deliberative process privilege. Mot. for Summ. J. at 3–7.
“The attorney-client privilege protects confidential communications from clients to their
attorneys made for the purpose of securing legal advice or services.” Tax Analyst v. IRS, 117
F.3d 607, 618 (D.C. Cir. 1997). While the privilege, “at its core, protects communications from
a client to an attorney,” Zander v. Dep’t of Just., 885 F. Supp. 2d 1, 16 (D.D.C. 2012) (citing
Fisher v. United States, 425 U.S. 391, 403 (1976)), it also protects communications from an
attorney to a client “if the communications ‘rest on confidential information obtained from the
client,’” Tax Analyst, 117 F.3d at 618 (citation omitted); see also Schlefer v. United States, 702
F.2d 233, 245 (D.C. Cir. 1983) (“The attorney-client privilege in federal courts protects
communications from attorney to client to avoid the risk of inadvertent, indirect disclosure of the
client’s confidences.”). “In the governmental context, the ‘client’ may be the agency and the
attorney may be an agency lawyer.” Tax Analyst, 117 F.3d at 618. Furthermore, “[a] court may
infer confidentiality when the communications suggest that ‘the Government is dealing with its
attorneys as would any private party seeking advice to protect personal interests.’” Heartland
All. for Hum. Needs & Hum. Rts. v. U.S. Immigr. & Customs Enf’t, 406 F. Supp. 3d 90, 122–23
(D.D.C. 2019) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 863 (D.C.
Cir. 1980)).
The attorney work product privilege “shields materials ‘prepared in anticipation of
litigation or for trial by or for [a] party or by or for that . . . party’s representative,’” Tax Analyst,
117 F.3d at 620 (quoting Fed. R. Civ. P. 26(b)(3)), and enables “lawyer[s] to develop [their]
mental impressions and legal theories without fear of having [their] adversaries rummage
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through them at leisure,” Delaney, Migdail & Young, Chartered v. IRS, 826 F.2d 124, 126 (D.C.
Cir. 1987). Work product is protected if “disclosure . . . risks revealing DOJ’s litigation
strategies and legal theories regardless of whether it was prepared with a specific claim in mind.”
Nat’l Ass’n of Crim. Def. Laws. v. Dep’t of Just. Exec. Off. for U.S. Att’ys, 844 F.3d 246, 254
(D.C. Cir. 2016). In the FOIA context, the attorney work product privilege is “interpreted
broadly and held largely inviolate.” Jud. Watch, Inc. v. Dep’t of Just., 432 F.3d 366, 369 (D.C.
Cir. 2005).
The deliberative process privilege protects documents that reflect an agency’s decision-
making process. Louise Trauma II, 2023 WL 2663007, at *8. To be protected, however, the
document must contain information that is both predecisional and deliberative. Id. “Documents
are ‘predecisional’ if they were generated before the agency’s final decision on the matter, and
they are ‘deliberative’ if they were prepared to help the agency formulate its position.” United
States Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 786 (2021) (citation omitted).
More specifically, a document is considered deliberative if it “reflects the give-and-take of the
consultative process.” Coastal States, 617 F.2d at 866.
IV. ANALYSIS
The Court addresses in turn whether each of the documents DOJ has continued to redact
or withhold is exempt from disclosure. In considering each of the documents, the Court refers to
the justification for FOIA exemption provided in DOJ’s revised Vaughn index and the
declarations included with its in camera submission. 2 “[I]n camera inspection of an agency
affidavit is warranted when it is necessary to evaluate an agency's exemption claims and a
2
The page references to DOJ’s in camera submission refer to the pages within each tab of the
binder of documents provided by DOJ.
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detailed description of the withheld documents would risk disclosing information the agency
seeks to protect.” Reps. Comm. for Freedom of the Press v. Fed. Bureau of Investigation, 548 F.
Supp. 3d 185, 198 (D.D.C. 2021). Here, DOJ’s declarations are reviewed in camera as they
contain information that would risk disclosure of protected information.
A. Certification in OIL Cases
The Court begins with a “redacted page concerning ‘Certification in OIL Cases’ in a
PowerPoint combining presentations titled, ‘Hot Topics in Criminal Immigration Litigation’ and
‘Serious Nonpolitical Crime Bar and Interpol Red Notices.’” Louis Trauma II, 2023 WL
2663007 at *5. 3 The Government’s revised Vaughn index contends that the redacted information
is protected by the attorney work product privilege and that releasing the redacted information
would provide opposing parties a strategic advantage in immigration litigation. Vaughn Index
at 4.
With the benefit of in camera review of the redacted page, RIP Page 61, the Court
concludes that the second of two redacted bullet points is protected by the work product privilege
because it reveals the “mental impressions and legal theories” of an attorney, prepared in
anticipation of litigation. Delaney, Migdail & Young, Chartered, 826 F.2d at 126. Therefore,
the second bullet point on RIP Page 61 is exempt from FOIA disclosure under Exemption 5.
The first bullet point, however, is tantamount to a “neutral account[] of government
policy,” and, therefore, not protected as attorney work product. Nat'l Ass'n of Crim. Def. Laws.,
844 F.3d at 255–56 (internal quotations omitted). Although neutral content can still reveal an
attorney’s mental impressions when viewed in context, that is not the case for the first bullet
point. Even considered in context, the first bullet would not “tend to reveal the lawyer's
3
This document is located in Tab A of DOJ’s in camera submission.
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thoughts” about litigation strategy. Id. at 256. Because the first bullet point in RIP Page 61 is
not protected by the attorney work product privilege, it is not exempt from disclosure under
Exemption 5.
Accordingly, the Court grants the Government summary judgment with respect to the
second redacted bullet point on RIP Page 61 but denies summary judgment with respect to the
first redacted bullet point on RIP Page 61.
B. Crimmigration Presentation
The Court next turns to two pages redacted in part and two pages withheld in full from a
presentation titled, “Crimmigration.” Louise Trauma II, 2023 WL 2663007, at *6. 4 With
respect to these pages, the Court previously observed that “[i]t is tempting to infer that DOJ
unintentionally asserted the attorney-client privilege as to these entries when in fact it meant to
assert the work product privilege,” but the Court could not make that determination because
“DOJ failed to correct this possible error.” Id. at *7. In its revised Vaughn Index, however, DOJ
now clarifies that the redacted and withheld pages contain attorney work product and justifies its
exemption on that basis. Vaughn Index at 1–3. The “[f]ailure to raise specific exemption
claims” in an earlier Vaughn index is not a waiver if “the District Court grants leave to amend
the Vaughn index.” Jud. Watch, 1995 WL 450520, at *1. Because the Court invited the
Government to submit a “revised Vaughn index” “with supplemental explanation of the privilege
asserted,” Louise Trauma II, 2023 WL 2663007, at *9, the new justification in the Government’s
revised Vaughn index is not waived. Accordingly, the Court assesses whether the redacted and
withheld pages are protected by the attorney work product privilege.
4
These documents are located in Tab B of DOJ’s in camera submission.
7
With the benefit of in camera review, the Court holds that the redacted portion of RIP
Page 8 is protected by the attorney work product privilege. Although minimal information can
be gleaned from the redacted bullet point, in the context of the presentation, the redacted bullet
does convey the “mental processes of the attorney” and is therefore protected by the work
product privilege. See Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8
(2001). The redacted bullet points on RIP Page 9 and WIF Page 32 are also protected by the
attorney work product privilege because they likewise convey the mental impressions and legal
strategy of an attorney in anticipation of litigation. Id. Therefore, the material in RIP Pages 8
and 9 and WIF Page 32 is exempt from disclosure under Exemption 5. Accordingly, the Court
grants summary judgment to DOJ with respect to RIP Pages 8, and 9 and WIF Page 32.
By contrast, the Court holds that WIF Page 33 does not represent the mental processes or
impressions of an attorney prepared in anticipation of litigation. This is so because the material
on WIF Page 33 neutrally restates black letter law. In other words, the material on WIF Page 33
constitutes “neutral legal analysis that is disconnected from litigation strategy.” Louise Trauma
II, 2023 WL 2663007, at *4 (internal quotation marks and citation omitted). Although a
lawyer’s selection of neutral law may reveal her focus, “opinion work product protection is
warranted only if the selection or request reflects the attorney's focus in a meaningful way.”
FTC v. Boehringer Ingelheim Pharms., Inc., 778 F.3d 142, 151 (D.C. Cir. 2015). The
information presented on WIF Page 33 does not reveal the attorney’s focus because it merely
restates requirements set forth in Shepard v. United States, 544 U.S. 13 (2005), without any
additional comment or strategy. Therefore, the Court denies DOJ summary judgment with
respect to WIF Page 33.
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C. Professional Responsibility in Immigration Litigation Presentation
DOJ has also claimed that Exemption 5 applies to several redactions “in a presentation
titled ‘Professional Responsibility in Immigration Litigation.’” Louise Trauma II, 2023 WL
2663007, at *7 (citation omitted). 5 Although DOJ initially asserted the attorney-client privilege
as the basis for exempting these materials from disclosure, in its revised Vaughn Index, DOJ now
includes the attorney work product privilege as a basis for this exemption as well. Vaughn Index
at 3–4. Accordingly, the Court assesses whether the redacted materials are protected by either
the attorney-client privilege or the attorney work product privilege.
After reviewing the redacted materials in camera, the Court holds that the majority of the
redacted materials are protected by the attorney work product privilege because disclosure would
“risk[] revealing DOJ's litigation strategies and legal theories.” Nat’l Ass’n of Crim. Def. Laws.,,
844 F.3d at 254. Although the redacted and withheld slides often describe how to avoid
violating ethical obligations, the information still falls within the ambit of the attorney work
product privilege because it conveys DOJ’s strategy on how to litigate within ethical boundaries.
For instance, RIP Pages 9, 17, 24 29, 41, 46, and 51 provide DOJ attorneys advice as to the
appropriate course of conduct in various litigation situations. Additionally, RIP Pages 20, 27,
35, 38, 42, and 55 share an attorney’s interpretation and theories with respect to various rules of
professional conduct commonly implicated in immigration litigation. RIP Pages 30 and 32—
when viewed in the context of the presentation—also reveal the mental processes of the attorney
presenter. Specifically, RIP Pages 30 and 32 present the viewer with questions about specific
legal scenarios and—with that information—the viewer can infer the attorney’s mental process
from the surrounding slides, thereby revealing the attorney’s impressions and legal theories.
5
These documents are located in Tab C of DOJ’s in camera submission.
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Because these redacted materials all provide an attorney’s impressions and analyses on
the appropriate way to approach or resolve specific legal situations that can arise in the course of
immigration litigation, they are attorney work product and are exempt from disclosure under
FOIA Exemption 5. Accordingly, the Court grants summary judgment to DOJ with respect to
these materials.
Additionally, the Court holds that the remaining redacted document—RIP Page 5—as
well as the documents listed above are protected by the attorney-client privilege. The redacted
documents “suggest that ‘the Government is dealing with its attorneys as would any private party
seeking advice to protect personal interests.’” Heartland All. for Hum. Needs & Hum. Rts., 406
F. Supp. 3d at 122–23 (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d at 863).
This is so because the redacted documents primarily comprise questions and answers to those
questions that implicate professional responsibility issues that DOJ attorneys face. See Mead
Data Cent., 566 F.2d at 253 (holding that attorney’s advice on legal ramification of Government
actions was protected by attorney-client privilege). For instance, RIP Page 5 relates to advice on
how to avoid violating ethics rules. In crafting these questions and answers, the presentation’s
creator—an attorney—considered information learned from confidential communications she
had with DOJ attorneys who had sought her advice on professional responsibility issues. See
Decl. of Papu Sandhu, ¶¶ 4–5; see also Decl. of Stacy M. Ludwig, ¶¶ 3. Because the information
contained in the redacted slides rests on confidential information obtained from a client, it is
protected by the attorney-client privilege and exempt from disclosure under Exemption 5. See
Tax Analyst, 117 F.3d at 618.
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D. Professional Responsibility Issues – OIL Litigation Part II
DOJ contends that the materials it has redacted from the presentation titled “Professional
Responsibility Issues – OIL Litigation Part II” are also protected by the attorney work product
privilege and attorney-client privilege and therefore exempt from disclosure. 6
After in camera review of the redacted material, the Court holds that the redacted
portions in this presentation are exempt from disclosure under Exemption 5; some are protected
by the attorney work product privilege, while others are protected by attorney-client privilege.
The Court begins by noting the redactions that are covered by the attorney work product
privilege. RIP Pages 11, 18, 28, 31, 32, 36, 42, 45, and 49 all provide an attorney’s advice on
what DOJ line attorneys should do in various situations implicating ethical conduct rules in
immigration litigation. As such, the documents fall within the “‘zone of privacy’” that the
attorney work product privilege provides attorneys to “think, plan, weigh facts and evidence,
candidly evaluate a client's case, and prepare legal theories.” Nat'l Ass'n of Crim. Def. Laws.,
844 F.3d at 251 (citation omitted). RIP Page 53 is also protected as it presents an attorney’s
litigation strategy advice related to handling ex parte communication.
The remaining redacted pages—RIP Pages 5 and 26—are protected by the attorney-client
privilege rather than the attorney work product privilege. Each of these redactions provides an
attorney’s advice on how to handle a legal situation that DOJ attorneys may face. And DOJ has
represented to the Court that the advice provided is based on confidential conversations between
DOJ attorneys from the Professional Responsibility Advisory Office—as well as OIL’s
Professional Responsibility Officer—and DOJ attorneys who have sought confidential advice on
complying with ethics obligations. See Decl. of Papu Sandhu, ¶¶ 4–5; see also Decl. of Stacy M.
6
These documents are located in Tab D of DOJ’s in camera submission.
11
Ludwig, ¶ 3. Thus, the Court can infer that “‘the Government is dealing with its attorneys as
would any private party seeking advice to protect personal interests” when it provided the
information redacted on RIP Pages 5 and 26. Heartland All. for Hum. Needs & Hum. Rts., 406
F. Supp. 3d at 122–23 (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d at 863).
Accordingly, the redacted information is protected by the attorney-client privilege and exempt
from disclosure under Exemption 5.
Finally, the redaction of an attorney’s phone number on the last page of the presentation
is exempt from disclosure under Exemption 6, which covers “personnel . . . and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”
5 U.S.C. § 552(b)(6).
E. Professional Responsibility Advisory Office Training PowerPoint
Lastly, the Court turns to material redacted and withheld in full from a presentation titled,
“Professional Responsibility Advisory Office Training PowerPoint.” Louise Trauma II, 2023
WL 2663007, at *8. 7
Of the redacted and withheld documents, two documents—RIP Pages 1 and 58—were
redacted in part only. Each of these redactions removes the name of a DOJ Legal Advisor—
which would seemingly fall under Exemption 6. As explained above, Exemption 6 to FOIA
applies to “personnel . . . and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Despite that, the revised
Vaughn Index does not cite Exemption 6 as the justification for these redactions. See Vaughn
Index, at 6–7. Nevertheless, because DOJ has previously relied on Exemption 6 to redact
personnel information—and because releasing that information would harm the privacy interests
7
These documents are located in Tab E of DOJ’s in camera submission.
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of an individual DOJ attorney—the Court will infer that these names have been redacted
pursuant to that Exemption. 8 C.f. Delaney, Migdail & Young, Chartered, 826 F.2d at 128(holding government may provide materials in any form so long as Court can assess claim of
privilege). Accordingly, summary judgment is granted to DOJ with respect to these two
redactions.
Of the remaining pages in this presentation, DOJ released seventeen to Plaintiff,
withholding in full 108. After in camera review, the Court holds that the following WIF Pages
are not protected by the attorney-client privilege, the attorney work product privilege, or the
deliberative process privilege: 4, 5, 22, 26–28, 32–37, 40, 43–46, 48, 53–54, 60, 62–63, 65, 70,
78–81, 87, 106, 110–13, 117, and 121–25.
The withheld pages are not attorney work product. As explained above, “neutral
accounts of government policy that merely pertain to the subject of litigation in the abstract may
not be privileged” unless in context the information “would tend to reveal the lawyer's thoughts
about which authorities are important and for which purposes.” Louise Trauma II, 2023 WL
2663007, at *3–4 (cleaned up). The materials that the Court holds not exempt here do not “tend
to reveal the lawyer’s thoughts” about which authorities are important in litigation. Id. at *4.
Rather, many of the withheld slides are segregable as they merely quote verbatim or restate rules
of ethics without indicating how the attorney is thinking about those rules or how those rules are
8
The Court chides DOJ for failing to justify these redactions based on Exemption 6, 5 U.S.C.
§ 552(b)(6). In Louis Trauma I, the Court indicated that DOJ may “continue to rely on
Exemption 6 to withhold the described information if necessary but should indicate with
specificity where and how it has done so on its next Vaughn Index.” 2022 WL 278771, at *10
(emphasis added). The Court also observed that “it is impossible to tell which documents are
being withheld pursuant to Exemption 6 and which pursuant to Exemption 5, and it expects DOJ
to rectify that shortcoming in its next submission.” Id. at *3, n. 1 (emphasis added). It is
concerning that DOJ has failed to appropriately justify its exemptions yet again.
13
relevant to contemplated immigration litigation. Other slides are also segregable because they
contain purely factual information that does not reveal an attorney’s mental process in
contemplation of litigation.
Nor are the withheld pages protected by the attorney-client privilege. The attorney-client
privilege applies when the information shared by an attorney rests on confidential information
provided by the client. Id. at *6. The Court cannot “infer confidentiality” here because the
information shared is purely neutral information or a restatement of ethical rules without any
basis to believe that the information shared is based on confidential communications from the
client. Id. In other words, disclosure of this material does not risk “inadvertent, indirect
disclosure of the client's confidences.” Id. (citation omitted).
The deliberative process privilege does not apply either. The deliberative process
privilege protects documents that are both predecisional and deliberative. Louise Trauma II,
2023 WL 2663007, at *8. The documents listed above—i.e., WIF Pages 4, 5, 22, 27–28, 32–37,
40, 43–45, 48, 53–54, 60, 62–63, 65, 70, 78–79, 110–13, 117, and 121–25—are not deliberative.
For instance, many of these documents merely restate or quote the model rules of professional
conduct. Rules of professional conduct are binding on attorneys and there is no deliberative
aspect involved in these slides. See e.g., District of Columbia Rule of Professional Conduct 8.5
(stating that attorneys “admitted to practice in this jurisdiction [are] subject to the disciplinary
authority of this jurisdiction”).
Accordingly, WIF documents 4, 5, 22, 27–28, 32–37, 40, 43–45, 48, 53–54, 60, 62–63,
65, 70, 78–79, 110–13, 117, and 121–25, are not exempt from disclosure under Exemption 5 and
the Court denies summary judgment with respect to these withheld documents.
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The remaining withheld documents in Tab E are protected by the attorney-client privilege
and the work product privilege. Although the Court will not address each document
individually, each document either advises DOJ attorneys on how to perform in litigation—
thereby constituting attorney work product—or else is based on confidential communications
between DOJ line attorneys and DOJ attorneys who advise on professional responsibility issues.
See Decl. of Papu Sandhu, ¶¶ 4–5; see also Decl. of Stacy M. Ludwig, ¶ 3. Accordingly, the
remaining documents are exempt from disclosure under Exemption 5 and the Court grants the
DOJ summary judgment with respect to those withheld in full documents.
V. CONCLUSION
For the foregoing reasons, the Government’s Motion for Summary Judgment is
GRANTED in part and DENIED in part. It is FURTHER ORDERED that DOJ shall produce
to Plaintiff the records with respect to which the Court denies DOJ’s motion for summary. 9 An
order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: October 12, 2023 RUDOLPH CONTRERAS
United States District Judge
9
The Court observes that DOJ has been afforded three opportunities on summary judgment to
demonstrate that the contested records are exempt from disclosure.
15