89 F. Supp. 3d 1074
D. Nev.2015Background
- Plaintiff Mane Shah, facing criminal charges in Clark County, submitted to an FBI-conducted polygraph on January 10, 2013; local reports and a detective affidavit stated he "failed" the polygraph.
- Judge Jerome Tao ordered the FBI to produce "all of the raw data, charts, and graphs" from the polygraph; Plaintiff then requested those materials from the FBI.
- FBI Security Division Assistant Director Alex J. Turner advised that disclosure would reveal polygraph question structure and enable countermeasures, risking future investigative effectiveness.
- U.S. Attorney Daniel Bogden denied the request under DOJ regulations invoking the law enforcement privilege (28 C.F.R. § 16.26(b)(5)), concluding disclosure would reveal investigative techniques.
- Plaintiff sued under the Administrative Procedure Act to set aside the DOJ’s denial and alternatively asserted a Brady violation; cross-motions for summary judgment were filed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of review: May court consider evidence beyond the administrative record? | Court should consider extra-record statements (email from DA indicating FBI willingness to disclose). | Review is generally limited to the administrative record; no showing of bad faith or necessary supplementation. | Court limited review to administrative record; Plaintiff failed to show bad faith or other grounds for supplementation. |
| Law enforcement privilege invocation — was DOJ arbitrary/capricious under APA? | Shah: privilege doesn't apply because his need outweighs government interest; prior FBI willingness and lack of future polygraphs minimize harm. | DOJ: Turner’s declaration shows substantial confidentiality interest—disclosure would reveal question patterns and enable countermeasures, jeopardizing future investigations. | DOJ’s invocation was not arbitrary/capricious; government interest in preserving polygraph technique confidentiality outweighed Shah’s interest. |
| Relevance of DOJ regulations (28 C.F.R. § 16.22/.26) — do they create an independent privilege? | Implicit: regulations govern disclosure to non-party courts; Plaintiff relied on judge’s order. | Regulations require U.S. Attorney review but do not themselves create privilege; substantive privilege analysis still required. | Regulations do not create an independent privilege; court nonetheless found DOJ’s substantive privilege invocation valid. |
| Brady obligation to disclose polygraph materials? | Shah: materials are exculpatory or impeaching and thus must be disclosed under Brady. | DOJ: Polygraph materials are inadmissible in Nevada and federal courts; Brady does not require disclosure of inadmissible evidence. | Court held Brady inapplicable because Plaintiff conceded materials were inadmissible; no Brady disclosure required. |
Key Cases Cited
- Kern County Farm Bureau v. Allen, 450 F.3d 1072 (9th Cir. 2006) (arbitrary-and-capricious standard described)
- In re Sealed Case, 856 F.2d 268 (D.C. Cir. 1988) (procedural requirements to invoke law enforcement privilege)
- Commonwealth of Puerto Rico v. United States, 490 F.3d 50 (1st Cir. 2007) (law enforcement privilege may protect techniques to preserve future investigative effectiveness)
- Animal Defense Council v. Hodel, 840 F.2d 1432 (9th Cir. 1988) (limitations on judicial review of agency actions and circumstances for record supplementation)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecutor’s duty to disclose exculpatory/impeaching evidence)
- Wood v. Bartholomew, 516 U.S. 1 (1995) (failure to disclose polygraph results not Brady violation when results are inadmissible)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment standards)
- Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (standard for genuine dispute at summary judgment)