Williams & Connolly v. Securities & Exchange Commission
398 U.S. App. D.C. 284
| D.C. Cir. | 2011Background
- SEC withheld 114 sets of notes under FOIA exemption 5 (work product/deliberative).
- DOJ disclosed 11 note sets during Forbes’s criminal trial; 103 notes remained undisclosed.
- District court denied in camera review and granted summary judgment for SEC.
- Dispute centers on whether the 11 released notes waive work-product protection for the remaining 103 notes and the impact of the release on FOIA exemptions.
- Court holds the 11 released notes moot; 103 notes remain protected by exemption 5; disclosure in criminal trial did not waive work-product protection; FOIA analysis differs from criminal discovery; district court’s judgment affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of work-product protection by partial disclosure | Williams & Connolly argues the DOJ disclosure of 11 notes waives protection for the rest. | SEC/DOJ contends separate documents remain protected; disclosure does not create blanket waiver. | Waiver not established; remaining 103 notes stay protected. |
| Effect of criminal-trial disclosure on FOIA exemptions | Disclosure in criminal trial should affect FOIA protection for other notes. | FOIA exemptions depend on civil-discovery norms, not criminal-disclosure; partial disclosure does not force broader waiver. | Criminal-disclosure does not alter FOIA exemption 5 applicability to the other notes. |
| Mootness of released notes under FOIA | If notes were released, the dispute should be moot for those documents. | Mootness applies only to those particular documents; does not extinguish protection for the rest. | The released 11 notes are moot; remaining 103 notes retain protection. |
Key Cases Cited
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (FOIA exemption 5 and privileges apply to government records.)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (Work product/privilege considerations in corporate context.)
- FTC v. Grolier Inc., 462 U.S. 19 (1983) (Work product privilege and FOIA interplay.)
- In re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989) (Rule of completeness and related waiver considerations.)
- In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982) (Waiver concepts for trial-preparation materials.)
- Mehl v. EPA, 797 F. Supp. 43 (D.D.C. 1992) (Work product and disclosure considerations in FOIA context.)
- Cottone v. Reno, 193 F.3d 550 (D.C. Cir. 1999) (Evidentiary privileges may yield under certain trial circumstances.)
- Swan v. SEC, 96 F.3d 498 (D.C. Cir. 1996) (FOIA exemptions judged without regard to requester identity.)