U.S. Department of the Treasury v. Pension Benefit Guaranty Corp.
249 F. Supp. 3d 206
| D.D.C. | 2017Background
- Respondents (plaintiffs in related Michigan litigation) subpoenaed Treasury for documents about the government’s handling of auto-industry restructurings and the termination of the Delphi salaried pension plan; Treasury asserted multiple privileges and withheld/redacted documents.
- The Court previously rejected Treasury’s generalized deliberative process privilege assertions and ordered Treasury to produce those documents in isolation and to submit a revised privilege log and an in camera submission limited to presidential communications, attorney-client, and work product claims.
- Treasury submitted 85 documents for in camera review; this opinion addresses 63 documents withheld under the presidential communications privilege and remaining documents withheld under attorney-client privilege, work product, and relevance grounds.
- The contested materials include: draft presidential speeches and a handwritten presidential request; draft memoranda from Auto Task Force staff to Lawrence Summers (Presidential adviser); internal Auto Team emails; communications with outside counsel (Cadwalader); and draft DOJ and Cadwalader memoranda prepared in anticipation of litigation.
- The Court found the presidential communications privilege applies to the categories at issue but concluded Respondents showed sufficient need to overcome that privilege for the 63 presidential-communications documents; the Court upheld Treasury’s claims of attorney-client privilege (15 documents), work product (7 documents), and relevance (1 document) as properly withheld.
Issues
| Issue | Respondents' Argument | Treasury's Argument | Held |
|---|---|---|---|
| Presidential communications privilege (63 documents) | Need documents to show White House/Treasury pressure on PBGC to terminate Delphi Plan; materials are central and unavailable elsewhere | Privilege protects candid presidential-adviser communications and should prevent disclosure | Privilege applies to these documents but Respondents demonstrated need sufficient to overcome it; Treasury must produce the 63 documents |
| Attorney-client privilege (15 documents) | Communications with Matthew Feldman (Auto Team attorney) not privileged if non-legal advice predominated | Communications with outside counsel (Cadwalader) and in-house attorney Feldman were legal and privileged | Privilege sustained: 6 Cadwalader communications conceded; 9 Feldman communications reviewed in camera and found to be legal advice, so withheld upheld |
| Attorney work-product doctrine (7 documents) | Needed for discovery of potential undue pressure/context (generally asserted) | Documents prepared by counsel in anticipation of Chrysler/GM litigation; opinion work product protected | Privilege applies; Respondents failed to show substantial need for opinion work product, so withholding upheld |
| Relevance (1 document) | Did not challenge Treasury’s relevance withholding | Treasury withheld a weekly Treasury-to-White House report as irrelevant | Withholding sustained because Respondents did not contest relevance |
Key Cases Cited
- In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) (scope and qualified nature of presidential communications privilege)
- United States v. Nixon, 418 U.S. 683 (1974) (origins of presidential communications privilege and limits)
- Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004) (communications actually viewed by the President are privileged)
- Dellums v. Powell, 561 F.2d 242 (D.C. Cir. 1977) (standard for showing necessity to overcome privilege)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (attorney-client privilege protects legal communications, not underlying facts)
- In re Sealed Case, 146 F.3d 881 (D.C. Cir. 1998) (attorney work product doctrine and protection of materials prepared in anticipation of litigation)
- F.T.C. v. Boehringer Ingelheim Pharm., Inc., 778 F.3d 142 (D.C. Cir. 2015) (opinion work product protection)
- Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir. 1980) (narrow construction of attorney-client privilege and work-product foreseeability analysis)