DOBYNS v. United States, 1:08-cv-00700

Background

After final judgment, ATF agent Trainor left a voicemail to the judge alleging he had been threatened by another ATF agent (Higman) and that a DOJ lawyer threatened Trainor’s career to deter disclosure; the judge referred the matter to DOJ OPR and voided the judgment.
OPR and OIG conducted investigations and the special master ordered production of documents related to the alleged threats; the government produced most materials but withheld 90 documents as privileged (deliberative process, law enforcement, attorney-client, work product).
The special master reviewed the disputed documents in camera, considered declarations from OPR and OIG, and evaluated privilege claims against relevance and plaintiff’s need to litigate alleged misconduct and possible obstruction.
Court concluded the deliberative process, attorney-client, and work product privileges do not shield the OPR/OIG investigative materials; the law enforcement privilege can apply but is qualified and must be balanced against plaintiff’s need.
The special master ordered production of nearly all withheld documents (except specific listed Bates ranges found innocuous/public and therefore protected by law enforcement privilege) by a set deadline; preserved work product protection for current Rule 60 litigation team documents.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Applicability of deliberative process privilege to OPR/OIG investigation materials	Materials are needed to prove nondisclosure/threats and privilege should yield	Materials are predecisional/deliberative and should be protected to preserve candid internal discussion	Privilege does not apply to these investigation documents; even if it did, it would yield to plaintiff’s strong need and allegation of misconduct
Applicability and scope of law enforcement privilege	Plaintiff needs investigative facts and there is no alternative source	Government invokes qualified law enforcement privilege to protect investigatory files and sources	Law enforcement privilege applies generally but is qualified; many documents must be produced after balancing factors; some innocuous/public items may be withheld
Attorney-client privilege for communications about the threat (including Trainor’s statements)	Plaintiff seeks disclosure of factual communications reflecting who knew what and when	Government asserts communications with DOJ/agency counsel are privileged	Privilege rejected: Trainor did not communicate in confidence to create a protected attorney-client exchange; DOJ attorneys were not Trainor’s counsel; claims overruled
Work product protection for OPR materials and for Rule 60 (current counsel) documents	Plaintiff seeks factual investigative materials; work product should not shield factual core	Government claims work product for documents prepared in anticipation of litigation	Work product rejected for OPR/OIG investigative materials (not counsel preparing for litigation); work product preserved for documents created by current Rule 60 litigation team

Key Cases Cited

Zenith Radio Corp. v. United States, 764 F.2d 1577 (Fed. Cir.) (recognizing deliberative process/executive privilege)
N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132 (U.S. 1975) (deliberative process privilege protects frank internal discussion)
Texaco Puerto Rico, Inc. v. Dep’t of Consumer Affairs, 60 F.3d 867 (1st Cir.) (deliberative process: predecisional and deliberative elements)
In re Sealed Case, 121 F.3d 729 (D.C. Cir.) (deliberative privilege yields where documents may shed light on government misconduct)
Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (attorney-client privilege principles for corporate/government contexts)
Hickman v. Taylor, 329 U.S. 495 (U.S. 1947) (work product doctrine protecting counsel’s mental impressions)
Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473 (2d Cir.) (predecisional requirement for deliberative process privilege)