829 F.3d 741
D.C. Cir.2016Background
- NACDL submitted a FOIA request to DOJ for the "Federal Criminal Discovery Blue Book," an internal DOJ manual advising prosecutors on discovery practices in criminal cases.
- DOJ withheld the Blue Book in full under FOIA Exemptions 5 (deliberative/privilege) and 7(E); the district court reviewed the book in camera and granted DOJ summary judgment under Exemption 5 (work-product privilege).
- The Blue Book is a multi-chapter, internal manual drafted by DOJ prosecutors containing legal analysis, practical "how-to" litigation advice, strategic considerations, and compilations of cases related to discovery obligations (Brady, Giglio, Rule 16, Jencks Act, etc.).
- DOJ contended disclosure would reveal prosecutorial strategies and thought processes, undermining the adversarial process and chilling candid internal memoranda.
- NACDL argued the Blue Book was not protected because it was not prepared for a specific claim, it served non-adversarial (training/policy) functions, and parts are neutral legal compilations analogous to a treatise.
- The D.C. Circuit affirmed, holding the Blue Book is attorney work product prepared in anticipation of litigation and not reasonably segregable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Blue Book is protected by the attorney work-product privilege under FOIA Exemption 5 | NACDL: Not protected because it wasn’t prepared for a specific claim; serves training/policy functions; contains neutral legal compilations | DOJ: It was prepared "because of" foreseeable litigation (criminal prosecutions), contains litigation strategies and internal analysis, and would reveal prosecutors’ mental processes | Held: Blue Book is work product; exemption applies (affirmed) |
| Whether a specific-claim requirement must be met for government materials to be work product | NACDL: Circuit requires anticipation of a specific claim for government documents | DOJ: No specific-claim requirement when document is prepared in anticipation of foreseeable litigation; Schiller and Sealed Case allow broader scope | Held: No blanket specific-claim requirement; Blue Book prepared for foreseeable litigation so privilege applies |
| Whether materials serving training or policy functions lose work-product protection | NACDL: Training/education and policy manuals are non-adversarial and unprotected | DOJ: Blue Book has an adversarial function—practical tactics and responses to defense arguments—even if also used for training | Held: Multiple purposes do not defeat privilege; adversarial function here supports protection |
| Whether non-exempt material in the 500+-page Blue Book is reasonably segregable | NACDL: Even if parts are privileged, non-exempt portions must be disclosed | DOJ: Book is fully protected and its strategic advice is integrated | Held: In camera review showed strategic work product is integrated throughout; not reasonably segregable; full withholding affirmed |
Key Cases Cited
- Milner v. Dep’t of Navy, 562 U.S. 562 (FOIA exemptions are exclusive and construed narrowly)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (Exemption 5 covers materials normally privileged in civil discovery)
- Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) (distinguishing neutral audit materials from documents prepared with litigation in mind)
- Hickman v. Taylor, 329 U.S. 495 (work-product doctrine protects attorney materials prepared in anticipation of litigation)
- In re Sealed Case, 146 F.3d 881 (D.C. Cir. 1998) (applies the "because of" test and discusses anticipation-of-litigation standard)
- Schiller v. NLRB, 964 F.2d 1205 (D.C. Cir. 1992) (work-product protection for lawyer-prepared litigation tips and advice)
- United States v. Deloitte LLP, 610 F.3d 129 (D.C. Cir. 2010) (articulating the "because of" test for anticipation of litigation)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (documents prepared during investigations may be work product when litigation is foreseeable)
- Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977) (FOIA focuses on information; agencies must disclose reasonably segregable non-exempt portions)