National Ass'n of Criminal Defense Lawyers v. United States Department of Justice Executive Office ex rel. United States Attorneys
844 F.3d 246
D.C. Cir.2016Background
- NACDL filed a FOIA request for the DOJ’s internal "Federal Criminal Discovery Blue Book," a >500‑page manual advising federal prosecutors on discovery practice in criminal cases.
- DOJ withheld the Blue Book in full under FOIA Exemptions 5 (inter-/intra‑agency memoranda privileged in litigation) and 7(E); NACDL sued to compel disclosure.
- The district court reviewed the Blue Book in camera and held the entire manual is protected attorney work product and therefore exempt under Exemption 5; it did not address Exemption 7(E).
- DOJ’s declarations described the Blue Book as litigation‑focused: practical litigation strategies, how to respond to defense arguments, case compilations for supporting arguments, and guidance on Brady, Giglio, Rule 16, Jencks, protective orders, etc.
- NACDL argued the Blue Book is not work product because it was not prepared for a specific claim, serves non‑adversarial/training functions, and resembles a neutral treatise; DOJ countered it was prepared in anticipation of foreseeable criminal litigation and reveals prosecutorial strategy.
- The D.C. Circuit affirmed that the Blue Book is protected attorney work product but remanded for the district court to assess whether any non‑exempt, reasonably segregable statements of DOJ discovery policy (e.g., USAM excerpts) must be disclosed (and then, if needed, whether Exemption 7(E) applies).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Blue Book qualify as attorney work product under FOIA Exemption 5? | Blue Book is general training/policy material, not prepared for specific litigation, so not work product. | Blue Book was prepared "because of" foreseeable litigation (criminal prosecutions) and contains litigation strategies—therefore work product. | The Blue Book is attorney work product and exempt under Exemption 5. |
| Is a specific‑claim requirement necessary for government documents to be work product? | A specific‑claim nexus is required when documents arise from audits/investigations; without it, no work‑product protection. | No blanket specific‑claim requirement; documents prepared in anticipation of foreseeable litigation (even generally) can be work product. | No across‑the‑board specific‑claim rule; Blue Book prepared for foreseeable litigation qualifies. |
| Do non‑adversarial purposes (training, policy guidance) defeat work‑product protection? | Educational/training function makes the manual non‑adversarial and public‑policy‑like, so not protected. | A document may serve multiple purposes; where prepared because of litigation prospect and containing strategies, it remains work product. | Function alone does not defeat privilege; Blue Book’s adversarial/litigation use supports protection. |
| Must DOJ segregate and disclose non‑exempt portions of the Blue Book? | Agency must disclose any reasonably segregable non‑exempt material (FOIA segregability requirement). | DOJ had maintained the record is fully protected and did not perform segregability analysis; but it has publicly released some policy statements elsewhere. | Remanded: district court must assess whether non‑exempt, reasonably segregable DOJ discovery policy material exists and, if so, order disclosure or further invoke Exemption 7(E). |
Key Cases Cited
- Milner v. Dep’t of Navy, 562 U.S. 562 (2011) (FOIA exemptions are exclusive and construed narrowly)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (Exemption 5 covers materials normally privileged in civil discovery)
- Hickman v. Taylor, 329 U.S. 495 (1947) (foundation of attorney work‑product protection)
- Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) (distinguishing audit/policy materials from litigation‑anticipatory work product)
- In re Sealed Case, 146 F.3d 881 (D.C. Cir. 1998) (apply "because of" test; no categorical specific‑claim requirement)
- Deloitte LLP v. United States, 610 F.3d 129 (D.C. Cir. 2010) (use "because of" test for anticipation of litigation)
- Schiller v. NLRB, 964 F.2d 1205 (D.C. Cir. 1992) (work‑product protection for lawyer‑prepared tips/advice for litigating)
- Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977) (FOIA requires disclosure of reasonably segregable non‑exempt information)