Hunton & Williams v. United States Department of Justice

by government agencies must carefully MICHAEL, Before WILKINSON and scrutinized. For the doctrine to an apply, KEELEY, Judges, and M. Circuit IRENE agreed must show that it had to Judge United States District for the party prevail legal another on help its sitting of Virginia, Northern District West claims at time of the the communications by designation. in doing at issue because so was the interest. It not enough the in part, Affirmed vacated and remanded simply considering was whether to become part by published opinion. Judge involved. majority opinion, WILKINSON wrote the Judge joined. Judge KEELEY which I. dissenting a opinion. MICHAEL wrote A. OPINION This out grows FOIA action of an earlier WILKINSON, Judge: Circuit patent brought by suit Technology New Inc., Products, (“NTP”), This appeal centers on a communications client of Hun- ton’s, Motion, Ltd., the Department against between of Justice Research (“DOJ”) (“RIM”), compa- and a BlackBerry telecommunications of manufacturer ny, company allegedly 2003, in which In August lobbied communications devices. litigation DOJ take side in following jury finding its with an earlier RFM Williams, of client law firm infringed Hunton and had patents various held (“Hunton”). NTP, up- LLC BlackBerry district court the district court in the deny DOJ’s litigation held decision to Hunton’s re- enjoining entered order RIM’s quest under of of patented technology. the Freedom Information use Enforce Act, (2006), (“FOIA”) § 5 U.S.C. stayed, ment was howev er, records of those communications. Hunton RIM’s pending appeal, ultimately which records, contends that it is partial entitled resulted in affirmation and a re regardless they NTP, of whether mand to satisfied the the district court. Inc. v. Motion, Ltd., requirements so-called common in- Research In 418 F.3d (Fed.Cir.2005). doctrine, terest parties pro which enables with District court legal pursue ceedings shared interest not joint did resume until October legal strategy. argues only DOJ Shortly jury after the reached its verdict, common proceedings interest communications ex- to reexamine NTP’s FOIA, empt from but patents that we should defer were initiated before the United agency’s invocation the common States Patent and Trademark Office (PTO). demanding doctrine without inquiry validity serious into the of its com- appeal in BlackBerry While RFM’s mon interest claims. pending, began contact- Both sides a point, though ing officials from various executive branch partial one. argues persuasively DOJ departments express its concern about strip injunction. FOIA does On March several discovery civil privileges attorneys, or its valuable John Di- including Fargo, DOJ right partner with parties other in liti- Property rector the Intellectual Staff gation anticipation or in of the same. At Litigation Commercial Branch of filing. On November Division, fore the actual with RIM attor- met Civil DOJ’s days of In- two after Statement meeting, At their Fenster. ney Herbert filed, Fargo signed and Fenster terest was opinion that RIM his expressed Fenster common interest on a written had a mutual the federal RTM, which in- of DOJ and stated BlackBerry behalf opposing relationship had in- their common interest injunction would junction because February 2005. On being come into on the federal terfere 1, 2006, filed a motion to February gov- The United States BlackBerry use. proceedings, court intervene the district user of largest single is the ernment litigation settled granted. which was The devices, matter of and as a BlackBerry month. injunctive relief the next law, subject to it cannot be technology. 28 patented against the use interven- point prior to DOJ’s At some 1498(a) (2006); Inc. v. Trojan, § U.S.C. tion, concerned about com- NTP became Shat-R-Shield, Inc., F.2d 856-57 and PTO in munications between (Fed.Cir.1989). to furnish Fenster offered patent reexamination connection with of affida- and drafts with information DOJ January counsel proceedings, and of ob- process in the RTM was then vits request with the for NTP filed a FOIA efforts to overturn taining part of its agency, Depart- parent and its PTO that, imme- contends injunction. DOJ Commerce, any to obtain such ment of meeting, Fenster and diately after See Rein v. U.S. Patent communications. exchange docu- orally agreed to Fargo Office, 553 F.3d & Trademark interest” “common ments on a confidential (4th Cir.2009). In the wake of that re- basis. in- Hunton learned of the common quest, DOJ and RIM. terest between discuss the Black- continued to

Fenster BlackBerry litigation set- Shortly after the in the months Fargo Berry litigation information, tled, request, a FOIA Hunton filed second followed, docu- supplying DOJ, seeking records of this time with ments, for DOJ’s use. declarations DOJ, RIM and between inter- communications phrase “common first time The communications between as well as related communica- written appeared est” agencies other such as the PTO. DOJ and and DOJ was October between RTM tion roughly half of the docu- DOJ withheld Fargo the disclaimer added when requested, and Hunton ments Hunton by joint and common interest “protected withholding of those docu- challenged the reply email he sent to privilege” to an protected claimed were ments Fenster. by Exemption of FOIA. from disclosure 8, 2005, two weeks after November On 552(b)(5). Following § an in 5 U.S.C. liti- BlackBerry patent proceedings portion inspection camera substantial court, DOJ filed resumed district gation withheld, the dis- of the documents DOJ requested of Interest Statement in Hunton’s DOJ FOIA suit trict court days. It ar- stayed for 90 the matter be summary judg- motion for granted DOJ’s injunction contemplated gued that the three of the documents ment for all but operate as de court could the district issue. against facto that the BlackBerry use and B. issue. to consider the more time needed a dis question of whether The decision to file the According Fargo, properly granted shortly trict court made until be- was not Statement summary in a action judgment question ment FOIA The we address is whether law, finding is one of which review de novo. we the district court erred that the E.P.A., Ethyl Corp. v. sought by F.3d qualify materials Hunton as “in- (4th Cir.1994). Whether a document ter-agency or intra-agency memorandums ex- prescribed fits within one of FOIA’s or letters.” law, is also a emptions matter unless find-

legal upon conclusion is based factual II. ings, we Id. which review for clear error. years, more than 40 For the Freedom of provides agencies

FOIA federal provided way Act has Information which rea “upon request shall for records people keep the American a watchful make records ... sonably describes such government. their eye pur- on basic “The any per promptly the records available to of FOIA pose ensure an informed 552(a)(3)(A). Act § son.” 5 U.S.C. citizenry, vital to the of a functioning dem- specifies exemptions regime nine from its society, against ocratic needed to check 552(b). disclosure, § however. 5 U.S.C. corruption and hold governors ac- general, exemptions these are to be countable governed.” to the N.L.R.B. v. narrowly Dept. construed. Bowers v. U.S. Co., 214, Robbins Tire Rubber & 437 U.S. (4th Cir.1991). Justice, 930 F.2d 354 (1978). of 98 S.Ct. 57 L.Ed.2d 159 demonstrating The burden of that a re The Act discourages agencies keep- quested exemp document falls under an ing in the might dark actions that not tion on government. rests the 5 U.S.C. light day. of withstand For that rea- 552(a)(4)(B); Beach, § City Virginia of son, “disclosure, secrecy, not domi- Commerce, Dep’t Va. v. U.S. 995 F.2d of purpose nant of the Act.” 532 (4th Cir.1993). 1247, 1252 8,121 U.S. S.Ct. 1060.

Exemption provides 5 that FOIA was the first in a of FOIA series laws apply disclosure rules do to “inter- adopted between 1966 and that 1976 were intra-agency or memorandums or designed bring of activities federal by letters which would not be law available agencies out of official the shadows of se- to a party other than an agency litiga in crecy. FOIA and its sister statutes —the tion agency.” 5 U.S.C. Act, Advisory Federal Committee Pub.L. 552(b)(5). § “To qualify, document must (1972) (codified 92-463, No. 770 86 Stat. as satisfy thus two conditions: its source (2006)), app. amended at 5 at 455 U.S.C. agency, must be a Government and it must Act, and the Government 5 Sunshine fall within the a privilege against ambit of (2006), § 552b U.S.C. concern —reflected discovery judicial under that standards private about effects of self-interested govern litigation against would on parties the administration of federal it,” attorney-client, such holds 89-1497, law. See No. H.R.Rep. at 26 process, work attorney deliberative or (1966), Cong. U.S.Code & Admin.News product privileges. the Interior v. Dep’t of (federal 1966, pp. 2426 agency’s re- Ass’n, Klamath Water Users Protective fusal disclose bids on a multimillion 1, 8, 149 L.Ed.2d project dollar concealed the fact that the (2001). lowest bidder had not been chosen and FOIA).

The finding district court’s doc- Cozy demonstrated the need for uments now at public-private issue are of a character relationships, selective dis- qualifying them for privileges parties, parte asserted ex closures favored is not challenged lobbying of appeal. agencies special interests III. that FOIA among practices were scrutiny. See subject public sought to the tension in FOIA between the Given Andrus, 581 rel. v. Dakota ex Olson N. transparency, on public’s interest Cir.1978) (“Preferential (8th 177, 182 F.2d hand, public one effective adminis- groups or interest persons of treatment tration, other, on the it is ironic both sides the distrust precisely fosters dispute adopted in this have rather abso- to obvi- was intended that the FOIA ment scope Exemption lute views ate.”). agencies will be danger pro- Hunton contends that public lar- by the beneficiaries captured protection no to communications be- vides subjects regulation of federal gesse or the DOJ, time, regardless of their and FOIA’s tween RTM and not diminished with has play a vi- mandate continues congruent disclosure interests the course of actual agen- supervision in the federal part tal argues that its common litigation. DOJ the Amer- principals, their ultimate cies all should shield of its people. ican RJM, communications with without consideration of the and du- scope serious poli- a broad Although FOIA establishes agreement. position to that transparency, its commitment ration Neither cy of Act acknowl- not unlimited. The policy is fully reflects the balance struck FOIA always “public disclosure is edges interpreted and the cases it. v. Baldrige Shapi- interest.” ro, 345, 352, 102 S.Ct. A. (1982). specified nine L.Ed.2d 199 FOIA’s array of con- reflect a wide exemptions argues Hunton that communica cerns, Exemption recogni- in 5’s this case unpro tions between RIM and DOJ are ability discharge any agency’s tion by Exemption tected 5 as a matter of law agen- on the effectively depends its duties a private party, part because RIM is not a having operate “in a fishbowl.” cy’s not DOJ, and those communications there (citation Beach, 995 F.2d at 1252 Virginia “intra-agen “inter-” nor fore neither omitted). where the In situations rejected court this con cy.” The district attorney, Exemption with an ment consults clusion, reasoning that communications pub- that the expresses Congress’s view party a and a government between by stripping gov- lic interest is not served unitary litigation common and possessing privileges other- agencies ernment understood as “intra interests should be litigation. in FOIA wise available to them Exemption for 5. The agency” purposes accountability, political meant to foster permits parties doctrine common interest a States into to force United interests coincide to share legal whose disadvantaged litigation posture. uniquely in privileged materials with one another Indeed, Supreme Court has noted that effectively prosecute or order to more de through the party allow a to “obtain Jury fend their claims. re Grand Sub normally privileged that is FOIA material 89-1, 89-129, and John Doe poenas, 89-3 anomaly in that the would create an FOIA (4th Cir.1990). 902 F.2d 248-49 Un supplement be used to civil discov- could however, reading, der Hunton’s the deci consistently rejected such ery. We government, here the party, sion of States construction of the FOIA.” United in the of liti partner with others conduct 792, 801, Corp., 465 U.S. v. Weber Aircraft (1984) (cita- subject party gation would somehow 1488, 79 L.Ed.2d 814 104 S.Ct. omitted). discovery its most civil to the loss of basic tions attorney-client thereby public and inter- privileges namely, promote broader — attorney product privileges. work ests the observance of law and adminis- and (citation justice.” tration of Id. at 291 view, sweeping impact and its This is omitted). What is sometimes termed the government’s ability to conduct on the doctrine common interest this sense litigation would complex and multi-faceted simply a matter of evenhandedness. staggering. We have made clear that government Congress’s purpose drafting was entitled not to favored whole FOIA, simply Exemption treatment under but 5 was thus not to have playing government only to a level field. “The which is of course directed at the right legal government, place has the same to undisclosed an at a serious anticipation litigation any disadvantage private advice in vis-a-vis parties who private party. nothing And there is are free of FOIA constraints. To prevents government private litigants FOIA that from allow adverse to use FOIA drawing pri advantage confidential counsel from the to claim this sort of tactical Allowing against vate sector. disclosure here would run counter impair agency’s ability prepare to the Exemption’s goal. would For its clear effectively private par for simply thrust is to ensure that FOIA does thereby ability deprive ties to dis and thwart its of the work- charge product attorney-client its functions interest.” protections Agency Hanson v. States Int’l litigation. United otherwise available to it Devt, (4th Cir.2004). Sears, 372 F.3d Nat’l Labor Bd. v. Relations Roe Co., Although 132, 149, Hunton argues Hanson is buck & 95 S.Ct. (1975) inapplicable attorney because the in that (Exemption L.Ed.2d 29 employed by private party case was exempt should be read “to those docu contract, ments, working documents, under a normally those Hanson’s, context.”); upon pres result was based privileged discovery civil interests, ence of H.R.Rep. 89-1497, shared and substantial see also No. at 31 (1966), upon government not some that a Cong. notion U.S.Code & Admin.News attorney 1966, 2418, government contractor’s is a at pp. (Exemption 2428 5 was torney. at 292. Id. intended to allow an to withhold “routinely materials that would not be dis in Nothing “inter-agency or intra- private closed to a party through the dis agency” language Exemption in 5 de- covery process in litigation agen with the government, mands that the among alone cy....”). all litigants, stripped discovery of civil privileges nothing when it has done Supreme more What the Court has termed than litigating 5, communicate with other “Delphic” wording Exemption of parties Julian, with whom it a singular shares and Department Justice v. 486 U.S. of unitary litigation 1, 11, It (1988), interest. is that con- 100 108 S.Ct. L.Ed.2d 1 vergence of gov- interests that entitles the is clear in respect thus side in —one ernment to litigation play by communicate within the terms cannot one set of rules Exemption of the and to do so in a play by privileged manner and another side a more case, it strip does not of those deliberative set rules. If of this were the attor- privileges litigants enjoy neys that other freely and on one side of could communicate, widely recognized necessary that are as knowledge safe encourage “to full frank product communica- their work and pro- deliberative attorneys tion between their privileged, clients cesses would be while the other

279 sought pri- turn commu- ernment to advance the tribes’ obliged to over would be side fiduciary vate interests because it had a very same nature to its of the nications so, Further, to do it obligation thought in the absence of because adversary. in the coordination, any par- doing public so was interest. government —or align Id. at. Klamath addressed case of interests ty whose attempting to parties per- strafed in- self-interested might position find its ment’s— adopt “friendly government particu- These are suade the advertently by fire.” policy, longer created when lar but those concerns are no problems of the just few actually in play accorded once the is privileges is denied litigant one require persuaded policy that the is FOIA does not to all others. interest, distinctly as the case in Hanson. litigate on such terms. disadvantageous meaning It would eviscerate the of Ex 5 if we were to read it to exclude entirely emption is consistent with This view teaching Department agencies communications between federal Supreme Court’s litigation partners and their where those Interior v. Klamath Water Users of Ass’n, 1, 121 communications advance an interest that S.Ct. Protective (2001). and, both L.Ed.2d 87 There the common view, critical to the in apply public’s 5 did not considered held Court Klamath, Supreme Indian tribes terest. Court to communications between recognized general Interior view that is “tex Department of the and the tually possible and ... in accord with the proceedings to deter- connection with two purpose provision” regard rights, of water one mine the allocation “intra-agency” prepared by materials out and one within the Interior state court parties side with whom a federal itself. The Court held Department 9-10, not be consid- consults. 532 U.S. at communications could those (citation omitted). “inter-agency intra-agency,” or since S.Ct. 1060 Numerous ered Appeals just have done that. communicating were with the Courts the tribes Interior, Dept. in order to secure wa- See Stewart v. U.S. federal (10th Cir.2009); Tigue 121 F.3d v. rights ter for themselves. Id. Justice, Dep’t 312 F.3d 78 & n. holding impact 1060. That did (2d Cir.2002); namely, Dep’t Hoover v. U.S. very different situation here— (5th Interior, parties unitary the two share a 611 F.2d Cir. one where 1980); achieving litigative Brockway Department outcome v. the Air (8th Force, 1184, Cir.1975); 518 F.2d 1191 and result. David, v. 448 F.2d 1078 n. 44 Soucie Indeed, opinion in Klamath the Court’s (D.C.Cir.1971); see also Gov’t Land Bank the common interest doc- never discussed (1st Cir.1982). G.S.A., v. 671 F.2d 665 Further, the common interest doc- trine. Klamath, in after the Dis- applied trine could not have Klamath Both before and applied trict because the had not decided of Columbia Circuit has corollary” unpaid “consultant doctrine to what its interests even were or embarked paid of action. It was as well as consultants. Klamath ex- upon a definite course communicating pressly the to make its declined to overrule two of the tribes Klamath, of in which it did so. 532 own assessment of their interests and cases (citing 12 n. 1060 compared with the in- U.S. at S.Ct. how those interests Citizen, 5, 14, v. Department at 121 Public Inc. Jus- public. terests of the Id. of (D.C.Cir.1997); tice, Ryan in 111 F.3d 168 v. Finally, gov- 1060. the S.Ct. Justice, Department 617 F.2d 781 when it advancing public’s comes to the of (D.C.Cir.1980)). all, After there nois rea interest because the outsider stands to why son the of a advice consultant with no gain personally only public’s if the conflict of protected interest should be is vindicated. if the paid disclosure consultant is Hunton concedes that the Exemption 5 unprotected the advice but if it is offered was not meant destroy the common recently for free. As the D.C. Circuit doctrine, argues but that the doc- explained in a case which treated as “intra applies only trine to the issue of whether a agency” opinions legal of outside ex record privileged. is Since it is difficult to perts provided who free concerning advice imagine a in situation which the common tribunals, military the establishment of interest doctrine would do any work once a consultants’ contributions were “no less qualified document as “inter-” or “intra- valuable or confidential for the lack of however, agency,” it seems clear that the compensation or formal contract.” Natl doctrine is question relevant to the of Military Inst. Justice v. United States whether qualifies the document as “inter-” Dep’t Defense, 512 F.3d or “intra-agency,” not to question (D.C.Cir.2008), denied, - U.S. -, cert. it privileged. whether is The common in- (2008). L.Ed.2d 754 doctrine, terest adding, bears is not a good These cases make sense. Such privilege its own right. In re Grand can communications be considered “intra- Jury Subpoenas, 902 Merely F.2d 249. agency” simple for the reason that satisfying requirements of the common attorney outside or consultant is collabo- interest doctrine without also satisfying rating agency with an agency’s pur- requirements a discovery privilege suit of the interest. This ra- same does not protect documents from disclo- readily tionale reaches cases which the sure more than merely satisfying does government partners party with another “inter-agency or intra-agency” require- litigation. Because the common interest ment. requires doctrine agency to determine interpreting Courts the various terms

that the public interest and the used in Exemption 5 have recognized the partner’s converged, interest have commu- need to take a approach functional to as nications agency between the part- and its certaining Thus, their meanings. although ner can be understood as “intra-agency” prefixes “inter-” and “intra-” may sug for purposes of Exemption By cooperat- gest document be transmitted from ing with pursuit agen- person another, one “common sense” cy’s aims, own litigation the litigation part- dictates that Exemption 5 reaches hand ner a limited sense becomes a part of kept written notes in a file. Conoco Inc. v. enterprise carrying Justice, Dept. United States out. 687 F.2d Ryan, See 617 F.2d at 789. The (3rd Cir.1982). Likewise, al underlying idea is essentially the same principle though Exemption that allows 5 addresses itself us to refer to certain memorandums,” to litigants as “letters and “private attorneys general.” privi the point leges The is Congress sought preserve not that the to attorney outsider would general gain gutted stands to be if assisting from the FOIA could be used to reach equally paid pleadings, litigation true of items like draft exhib —that consultants, its, agency employees, and government computers. and for data on matter, that S.E.C., of agencies themselves. The See Chilivis v. 673 F.2d point (11th Cir.1982) (“In is that there is no conflict of interest n. 15 adopting exemp- 5, Congress clearly intended to ex- further evidence that it had tion committed to taking with the RIM’s side. empt any document connected process, just agency’s deliberative The Statement of Interest confirms the letters.”). adopt and To Hun- memoranda veracity of government’s the entirety would send us in ton’s view its BlackBerry litigation the explains and doctrinaire direction. We opposite, an in greater detail. In its State- never, to hold that un- required would be ment, injunction DOJ asserted that the circumstances, any der could United originally entered the district court discovery States claim the most basic civil injunction “would amount to a de facto partnering when with another privileges against government’s use of Blackber- litigation. say To in- party view “literally prohibit ries” because it would vites havoc is to understate matter. providing REVI from the services that We think the more sensible course is to would be essential for the govern- federal singular pub- ask whether a common and ment, as well as state and local lic-private present, interest is not to invali- ments, to continue their use of the Black- proper discovery date the assertion of civil Berry devices.” if government’s Even privileges wholesale. directly enjoined, use were not there awas serious risk that the internal

B. communications, as well as its communica- tions with those whom it needed to bé able BlackBerry, contact via would be dis- foregoing The discussion demon rupted by an against RIM. applicability strates the of 5 to of its of Interest Nor could filing problem DOJ’s Statement be fixed merely and signing pointing protect govern- with the district court out the need to agreement BlackBerry formal common interest mental use. The Statement RJM, in early explained both of which occurred that “there does not appear to agreement November 2005. The written manner” simple segre- which to in lim explains parties’ gate government BlackBerry shared interest users from iting scope any injunction pages, other users. Over several DOJ set BlackBerry clearly complexities manifests forth the technical that fash- agreement together ioning injunctive to work toward appropriate against relief agreement thing, that end. The stated that the RIM would involve. For one single simply United States is the possible distinguish would not be largest BlackBerry technology, separate user of communications on an email-by- ability employ continued email basis. The hoped “[t]he best could be BlackBerry systems those and devices is for approved create list of Black- Berry of sufficient importance given considered users who would be an across- necessary pursuit injunction, as to make exemption the-board subject through regardless a common interest of whether their communica- agreement.” agreement being defined the tions were made their official then, scope parties’ capacities. common interests Even clearly, providing, example, required carry a means to would be out “a time- inventory if the parties consuming every agency terminate with- came to government” believe their interests had the federal and to create diverged. BlackBerry DOJ’s decision to intervene in and maintain a database of in February provides information that would become “more prone and to error” when due nized common interest” between RIM complicated and allowance was made for outside users— DOJ. governments, gov- local such as state and Further, Fargo testified that a number contractors, nongovernmental ernment and agencies had contacted DOJ in order to organizations like the American Red injunction find out what the effect of an ability to Cross—whose communicate with use, BlackBerry would be on their and he government

the federal was essential to discussed his communications repre- government’s BlackBerry the federal use. Departments Defense, sentatives of the Ensuring that “the government’s federal Energy, Services, Health and Human communications, which include a raft of State, Security, Homeland and the Execu- communications, official time-sensitive tive Office of the President and the De- disrupted by any injunction” would be partment of Bureau Commerce’s of Indus- difficult at best. The task would be Her- try Security. culean, short, government and if also impossible. that, perceived abundantly might gen- makes it that it have a Statement clear “broad RIM, in partnering with DOJ was assert- eral in avoiding any disruption interest ing a in genuine public seeking responders, first govern- state and local that “the government’s ensure federal ments, care, health and the economy gen- right BlackBerry to continue its use of erally might accompany injunc- nullity.” devices is not rendered a tion.” Moreover, sug- the record this case Thus, as of November there can be gests that BlackBerry concern about a in- no doubt that the had deter- junction against impact RIM and its public mined that it was in the interest for government operations turn on was wide- RIM to succeed its efforts to constrain spread. Fargo As noted his sworn injunctive the scope of relief entered statement, “ability to BlackBerry litigation. gov- The federal to, messages send messages and receive BlackBerry’s customer, ernment biggest from[,] public private recipients in had an obvious in avoiding emergency or crisis situations” was a disruption the serious operations Every source of serious concern. member overly that an BlackBerry injunction broad Congress had been a BlackBerry, issued would entail. And the between instance, BlackBerry because technolo- RIM and inDOJ November 2005 makes it gy permitted emergency communications clear that RIM and had committed to

when other systems communications were working together to achieve that goal. As inoperative. The Department of Home- result, Exemption 5 properly applies to Security land had numerous contacts with communications made pursuant to that Fargo, including originally alerting Fargo agreement. It does not matter that RIM of Fenster’s making concerns and the re- was motivated the commercial benefit quest that prompted DOJ to file the State- if would accrue to it it succeeded in ment of Interest. Federal officials also opposing BlackBerry while received information specifically pertaining was motivated concern BlackBerry use the Defense Depart- ment, for the interest. What matters is response and in an interrogatory Hunton, a unity pre- from there was of interest disclosed personnel serving non-disruptive Departments pattern use, Defense Security may BlackBerry and Homeland mental and RIM and DOJ been informed of the “recog- rely advice, existence of a could on one another’s secure injunction. communi- be needed to in an Fi- knowledge privileged phase just nally, would remain that. successfully argued cations DOJ it

should be allowed to intervene 2. BlackBerry litigation although because if argues injunction Hunton next that even a NTP had conceded that an govern- of RFM and the infringe shared interest should not narrowing scope of a Black- BlackBerry rights, “only ment NTP had offered Berry injunction existed once the written the court unsupported statements assert- executed, was common interest ing the a in- ease with which” workable principles ap- should not crafted, common junction specify- could be without BlackBerry ply to their efforts to limit a ing how this could be done.

injunction because and DOJ did foregoing serves to confirm what Hun- party face an adverse on that issue. should be obvious: became DOJ involved no interest in ton contends that NTP had BlackBerry litigation because was injunction than an that was broader what might concerned its interests be in- consistently attempted and the law allowed an fringed by injunctive award in NTP’s protect to work with DOJ to favor. NTP stood to benefit from a broad BlackBerry ment’s use. injunction, likely while DOJ would language Citing used the Third Cir- every harmed one. There is reason to Inc., Liggett Group, cuit in Haines v. 975 suppose that their interests were con- (3d Cir.1992), F.2d Hunton asserts flict, and the district court’s decision on party prerequisite that an adverse is a for point cannot be said to be clear error.1 invoking the common interest doctrine. here, need not address the issue how- We IV. case, ample ever. In this there was evi- support dence to the district court’s con- A. was, fact, that NTP clusion adverse to Although applicability of common in- scope DOJ and RIM when it came to the principles terest to communications be- injunctive BlackBerry relief in the liti- tween RIM and DOJ from November 2005 gation. opposed NTP in fact DOJ’s re- established, firmly onward has been evidentiary DOJ’s quest hearing regarding for an decision to generated withhold materials feasibility BlackBerry injunction of a pres- between March and November 2005 at the time DOJ filed its Statement of Interest, instance, ents much question. urges for closer Fargo testified DOJ approach that he broad and deferential deposition regard his “did to deter- [NTP] mining NTP party.” as adverse sent series whether those communications are DOJ, for requests by Exemption six information to shielded 5. The Supreme Fargo requests which viewed as informal Court’s decision in Department the Inte- discovery, NTP disagreed rior v. Klamath Water Users Protective Ass’n, length of time that DOJ about would argues they did not Hunton also share ties to debate the means which will preventing entry defeating RIM’s interest in of a secure their common end. Since BlackBerry injunction altogether, opposed BlackBerry injunction outright was one ensuring BlackBerry way may realistically to an interest in that a been —and properly way protect governmental BlackBerry A narrowed. fair —to use, interpretation agree- topic of a common interest discussion of this fell within the ment, however, par- scope must leave room for of RIM’s and DOJ’s common interests. (2001), clear, however, expense

L.Ed.2d 87 makes benefit at the of other applicants.” Klamath, at any attempt to invoke the common S.Ct. 1060. interest doctrine order to avoid disclo- however, argues, DOJ that Klamath carefully sure under must be more FOIA “should be confined to its facts and hold- Klamath, In scrutinized. the Court took ing.” Appellee’s depart- Br. at 27. The pains emphasize that the words “inter- that, ment asserts unlike this agency intra-agency” or cannot be case does not entail competition gov- ... independent vitality.” “drain[ed] expense ernment benefits at the of others. 12,121 at government, Id. S.Ct. 1060. The This assertion is too It sweeping. is unde- Hunton, bears burden of demon- niable that support from DOJ in strating the common interest doctrine very is a valuable upon benefit to confer withheld, applies to materials it has and litigant, equally and it is self-evident that the elements of the common interest doc- such a benefit entails a corresponding det- analyzed pre- trine must therefore be litigant’s opponent. riment to the cision. Hanson, only question In all, whether a common interest existed at Klamath reaffirmed that contacts be- not, case, inas whether it extended as parties tween self-interested and federal far as the contended. Han- agencies casually exempted are not to be son, 372 F.3d. at 292. In this regard, the from FOIA’s scheme of disclosure. FOIA government argues we should not overturn gives public right know about the district court’s conclusions concerning communications with an the scope of the common interest doctrine entity “pressing that is its own view of its unless the district court committed clear government. own interest” on the Id. at error. But appropriateness 14, 121 “dispositive point” S.Ct. 1060. The standard used the district court “apparent object Klamath was that the make its question determinations is a of the Tribe’s communications is a decision law, which we review Ethyl de novo. of the Government to sup- Corp., 25 at legal F.3d 1246. The standard port a claim the Tribe is necessari- applied here was not the searching one ly adverse to the of competitors.” interests requires. that Klamath sure, Id. To be Klamath did not foreclose below, proceedings the district all confidential communications between court ruled the common interest doc- federal agencies private parties, even applied trine to exempt from FOIA com- self-interested ones. exemptions Other munications between REVI and Indeed, may remain available. in this that, March 2005 onward. It explained case, Hunton challenged has not DOJ’s of March the record contained “indi- invocation of Exemption protects which joint cia of strategy” between RIM and exchange of confidential trade secret DOJ, insofar as DOJ and “agreed REVI 552(b)(4). § information. See 5 U.S.C. declarations, exchange proposed other requires But Klamath pleadings, and their views on issues relat- show that party communications with a ing any injunction to the effect of on the something involve than other self-interest- and the interest.” lobbying ed before the can with- hold them under Act. put As the Court analysis respects. This was flawed in two it, excludes, intra-agency First, “the condition although a common agree- least, communications to or from an ment can be inferred parties where two party interested seeking clearly a Government collaborating in of liti- advance at the joint strategy “indicia” of as basis conclusion of their March gation, mere point meeting. questions in time are insufficient Hunton particular of a whether reached, any agreement was pointing that a common interest to demonstrate Second, it in Fargo’s has been formed. the absence of record agreement contemporaneous particular that the “indicia” iden- notes. The district not clear an court pointed appears the district court to to determined tified agreement, op- parties actually interest as whether formed an actual common date, confidentiality agreement. agreement noting only as of that that posed to mere parties joint strategy” ex- there were “indicia of from Hunton contends declarations, point changed proposed pleadings, onward. part process per- of the and views agreement While need not assume a to become involved in the suading DOJ form, particular agreement an there must That BlackBerry litigation. contention is be. If RIM simply approaching entirely plausible, particularly to the ex- prospect might over the that there one day

tent the communications were initi- effort, joint litigation be a such contacts primarily or flowed ated RIM and discussions seem preliminary too gave The court RIM to DOJ. district no remove from disclosure under anything that there was indication 5. The record raises a questions number of themselves that showed them documents as to whether a common agree- interest effort, joint part litigation to be of a rather ment early existed as as March 2005. attempt by push than an REVI First, Fargo’s description there is government. on the arguments interest DOJ shared with RIM. In his exchanged deposition, Fargo before a common Documents stated that DOJ and is established are not RIM agreement shared communicating protected possible injunc- from disclosure. In re Grand about effects that an Seal, Jury Subpoena: against Under 415 F.3d tion entered RIM would have. Ac- (4th Cir.2005). Thus, proper cording to Fargo, agreed assess- RIM and DOJ applicability ment of the the common that exchange “we would views. Certain- views, requires ly, they provide interest doctrine this case po- would us with information, point determination of the in time when tential potentially sources DOJ decided that it was in the some draft declarations.” This character- ization, however, prevail interest for RIM to in its agree- comes close to an agreed partner exchange with NTP and with RIM ment to information order to assessment, in doing danger so. The in this area is make an rather agree- than an efforts, again lobbying joint once that mere as ment to legal strategy. undertake a opposed joint litigation strategy, will be Second, Fargo deposition stated in his removed from FOIA’s reach. testimony that DOJ did not decide to file shortly Statement of Interest until before

B. the Statement was filed on November thus turn to record We and 2005. As late as October it ap- exchanged pears consider those materials be that Fenster was communicating Fargo regarding “preparation tween and DOJ between March 2005 with affidavit, and November 2005. In Far addressing [a] his declaration” DOJ, go, representing public’s Thus, stated that he ment’s interest. agreed exchange documents with Fen DOJ did not decide to become involved in ster, RIM, representing BlackBerry litigation on a confidential until some time 10, 2005, March meeting,

after the and be on-the-record and others pro- were there is reason to believe that outright. Fenster was hibited record this case pressing still take reveals that DOJ plead- forwarded draft step ings supplied by as late as October 2005. RIM to the PTO. DOJ maintains that it had an interest in finding Third, parties failed to create a writ- out the status of the reexamination pro- ten common interest until No- ceedings, but it immediately is not clear vember 2005. This was the time DOJ filed why inquiry such an require would toDOJ Interest, suggest- its Statement of further pass litigation along materials from RIM ing may not have court, to the Athough PTO. the district up preceding period, made its mind in the after examining the DOJ-PTO communica- least, early or at not as as March 2005. tions, found that the PTO had not dis- Fargo attorney an experienced was who closed patent details of the reexaminations agreement knew how to create such an if it RIM, relay DOJ to that finding does public served the interest to do so. As speak suggestion to Hunton’s that notes, itself Fargo “routinely” DOJ creates RIM seeking to influence the PTO. agreements common interest and reviews precisely Hunton’s claim raises the sorts of those created his staff. Yet neither concerns about advocacy self-interested party made kind of “common interest” that were so central in particu- Klamath — notation on their written communications larly since there was a similar in risk addition, until October 2005. In while that agency Klamath one representing pri- Fargo supervisor told his that he was en- vate in litigation interests would communi- tering a common agreement interest in cate with a sister that was simulta- November supervisor he told his neously adjudicating closely related claims. only that he and exchanging Fenster were materials “on a prior short, confidential basis” In there are a number of items that time. the record suggesting that may partner have decided to with RIM in the Finally, the record this case presents BlackBerry litigation much before Novem- the sort of features that underscore the ber 2005. The fact that DOJ later con- need for watchfulness where the common cluded it shared RIM’s interest does not sought doctrine is as a means to protect communications between the two avoid requirements. FOIA’s disclosure In before that decision agree- was made. An regard, significant if communica- ment to hear say what RIM had to and to tions were private party, initiated if keep what it heard confidential must not the bulk of the communications came from be confused awith conclusion private a party, and if there sparse are public required taking RIM’s side. government indications that the had come terms with the interest at stake express We no opinion on the ultimate purposes case. The and initiatives objections merits of Hunton’s to DOJ’s private of the party especially impor- withholding of these Athough materials. tant. below, the proceedings Hunton we have highlighted aspects of the record suggested that RFM part used DOJ in doubt, that call DOJ’s claims into some through conduit which it present could record does possibility not foreclose the its views to the PTO. Because PTO reex- parties that the did indeed reach a com- proceedings amination underway, were mon interest understanding point at some communications between the PTO and before November which the written required were some agreement instances served to memorialize. requires part interest doctrine of the The common to share common minds, but it does not re- meeting of the interests at all. quire be reduced Recognizing the sweeping nature of its actually

writing litigation or approach, the dissent intimates that requires FOIA is not commenced. What might result if be different invariably that the lose dis- party were and “a communi- disputes, but its claims be closure cation, privileged under the common inter- carefully analysis The we evaluated. set doctrine, est between an and non- a recognition forth combines agency co-party” were at issue. But why? right partner who ment’s those government’s co-party would still from judicial legal share its interests with the perspective the dissent’s “acting skepticism FOIA demands. It will be own interest.” The communications would job the district court’s on remand to ad- still, view, under the dissent’s not be inter- any agreement and dress submissions of intra-agency. under the or The criteria parties standards we have announced logical identified. the dissent have no stopping point crippling government’s short of C. discovery privileges. that, beyond And finally colleague co-party We thank our for his how the applied, is rule to be to dissent, thoughtful to which a brief re- just take examples, parallel litiga- few to sponse tion, is order. The dissent asserts to indemnitors who lack party formal Exemption cannot invoke 5 be- status, amici, to movants whose request cause, joint notwithstanding the RI1WDOJ leave intervene is under advisement? injunction, effort defeat RIM was further, although And privileges may be “acting prin- in its own interest.” But that in litigation, they asserted often protect ciple would eviscerate the attorney-client earlier communications and discovery privileges, anyone since who attorney product work because is joins government litiga- forces with the something springs forth instanta- if partnership tion will benefit is suc- neously like Athena from Zeus’s head. cessful. What the dissent misses is that question simply by cannot be resolved where the decides to work drawing formal arbitrary or lines that party with a to achieve a legal result bene- point overlook the actual at which a com- both, danger ficial to of “self-advo- redounding mon interest to the ben- ca[cy] expense at the of others” subsides. efit is formed. 532 U.S. at 121 S.Ct. meaning only Words take their in con- interest, scope of their shared Within text. 5 is brief and phras- its advocacy passed. the time for has then is, ing least, Supreme to the at Court In attempting goal, realize their shared Julian, “Delphic.” 486 at U.S. eye each side advises the other with an much, however, S.Ct. 1606. This is true: “truth good toward and its sense of what “consistently” the Court has held that judgment calls for.” Id. at 121 S.Ct. “supplement FOIA is not to be used to 1060. Our remand in this requires case discovery” civil and obtain “material that is district courts to be attentive both to when normally privileged.” Aircraft, Weber a common interest is formed and to what short, S.Ct. 1488. scope communications lie within the of that contrast, By right, our is not to be denied the dissenting interest. col- league recognizes virtually right every private litigant, no on the available to to seek advice, injunc- in- legal opposing

and obtain undiscoverable RIM’s interest broad relief, formation, counsel, including prevail tive that it wanted RIM'to dissent, litigation, its and that it would assist partner. common interest Yet the parsing Exemp- doing judgment hereby an unfortunate so. The through opaque wording, tion 5’s would hobble PART, AFFIRMED IN VACATED just alone in this fashion and AND REMANDED IN PART. deny Exemption only meaning 5 the

could have.2 MICHAEL, Judge, dissenting: Circuit respectfully I dissent. The documents

V. Motion, exchanged Research in between exemptions frequently (RIM) FOIA and Department Ltd. and the of Justice present a tension. The Act reflects both a (DOJ) BlackBerry patent about in- transparency commitment to and to ad- fringement (BlackBerry litigation) case efficacy, public’s right to the ministrative NTP, brought by against Inc. RFM were agencies’ duty to know and to to fulfill improperly withheld exemp- DOJ under their stated missions. Here those inter- tion 5 of the Freedom of Information Act Congress ests obvious. did not intend (FOIA), 552(b)(5). § 5 U.S.C. This conclu- public’s eye to shield from the the efforts sion is Department mandated private parties lobby an undecided Interior v. Klamath Water Users Protec- expend public resources and Ass’n, tive shape agency policy ways beneficial to (2001). L.Ed.2d 87 Klamath makes clear intend, themselves. Neither did howev- that RIM’s communications with DOJ er, agencies to force federal to surrender were undertaken in RIM’s own interest as discovery critical civil protections and liti- expense self-advocate at the oppo- of its gate with one hand It behind their backs. nent, result, NTP. As a the communica- courts, job bearing is the in mind exemption tions did not meet 5’s first con- burden, give the effect to dition “intra-agency” communications both of the values that FOIA seeks to and thus could not be withheld under ex- advance. emption even if RIM and DOJ shared a common in the BlackBerry litiga- reasons, For foregoing the affirm we tion. district privileged court’s conclusion that communications between DOJ and RIM I. subsequent to their November 2005 com- mon interest protected are exemption FOIA’s 5 allows the by from disclosure Exemption FOIA ment “inter-agency We to withhold or intra- vacate its agency conclusion a common inter- memorandums or letters which est relationship existed between RFM and by would not be available law to a party DOJ from March 2005 to November 2005. other than an litigation with the remand, 552(b)(5). agency.” § On district court should deter- qualify 5 U.S.C. To mine the point exemption time when DOJ decided under “a document must thus Klamath, public’s converged satisfy with two conditions.” agree 2. We privilege. plays with the dissent that the intra- is not itself It the same role agency prong litigation intra-agency requirement 5 cannot be col- that the Klamath, lapsed privilege prong, into the see does under FOIA: it identifies those with privileged 532 U.S. at 121 S.Ct. but as we have whom materials of nature can be noted, already the common interest doctrine shared. First, phrase ‘intra-agency U.S. at 121 S.Ct. 1060. “its source memorandum’ is (em- agency.” must be Government Id. a memorandum that is addressed both to added). Second, “it phasis must fall within employees and from of a single agency.” privilege against discovery 9, 121 the ambit of a at (quoting Dep’t 532 U.S. S.Ct. 1060 judicial govern Julian, under standards that would 1,18 1, 108 v. Justice n. (1988) litigation against 1606, 100 that holds it.” (Scalia, J., L.Ed.2d added). in this appeal Id. The issue is whether dissenting)) (emphasis The Court however, certain communications between RIM and recognized, that some courts of “intra-agency DOJ are memorandums or appeals “have held that [exemption ex 5] letters” DOJ could withhold under tends to communications between Govern exemption 5. agencies ment and outside consultants by hired them.” Id. 121 S.Ct. 1060. by Supreme We bound critical, however, It was that those consul Court decision sets standard for tants did not represent any other interest determining may exemption when extend providing agency: while advice to an to communications between outsiders and cases, In such records submitted agencies. Klamath certain outside played consultants essentially government-solicited Indian tribes sent part agency’s same in an process of Department communications to the deliberation as prepared by documents (the Department) respect the Interior agency personnel might have done.... pending water allocation decisions to be [T]he fact about the consultant that is Department; made and one tribe typical constant cases is that the Department communicated with the about represent consultant does not an inter- scope Department of claims the would own, est of its or the interest of on the tribe’s assert behalf state-court client, other when it advises the agency adjudicate certain water hires it. Its obligations are to rights. Department exemp- invoked truth and its good judg- sense of what deny requests, tion 5 to certain FOIA for, ment calls and in respects those tribes, a group made adverse to the just consultant [agency] functions as an tribe-Department communications with re- employee expected would be to do. spect to the proceedings. water allocation The issue the before Court was whether 10-11,121 Id. at S.Ct. 1060.

the passing documents between the tribes After assuming, deciding, without that the Department “intra-agency and were communications from a disinterested con- letters,” memorandums or a condition nec- sultant to an agency may qualify as “intra- essary to exempt them from disclosure. 5, agency” exemption under the Court held began

The Court in Klamath analysis that the tribal communications to gov- the that emphasizing “neither the terms of ernment in Klamath were not intra-agen- 5, [exemption which cover ‘intra-agency cy. According Court, to the the intra- memorandums,’] nor statutory defini- condition excludes an outsider’s tions,” 551(1), 552(f), §§ “say any- 5 U.S.C. communication that seeks action thing about communications with outsid- “that is necessarily adverse to the inter- ers,” at S.Ct. 1060. To competitors.” ests [the outsider’s] Id. with, begin the prefix “intra-” means at 121 S.Ct. 1060. Because the tribes “within.” College interests, Webster’s New Dictio- advancing were their own (3d 2008). Thus, nary others, ed. as the Court competition with their communica- observed, meaning “the most natural Department tions to the of the Interior by a proceed- impaired injunction pro- to water allocation broad respect with BlaekBerry commercial intra-agency were not communica- hibited use of the ings differently, Fenster exemption system. press under 5. Put continued to DOJ tions tribes, injunction though argue consultants for no even after RIM labeled as to “enough entered the November agency, simply were and DOJ into justify a docu- agency’s personnel agreement, own common interest like ‘intra-agen- confirming that de- calling government’s their communications ment ” 12,121 requesting was cy.’ Id. at 1060. clared interest limited to to fashion the court passing Under Klamath the documents interfere would not with the RIM and not intra- between DOJ were BlaekBerry system. use of the agency. communicating with DOJ RIM respect BlaekBerry litigation, to the Fenster’s communications to DOJ on be- acting its own interest as self- half of RIM had the characteristics same expense opponent objectives Supreme advocate at the of its and Court led competitor, tight reject in a argument NTP. RIM was Klamath spot began lobbying gov- when it DOJ in March the tribes’ communications with in the in that intra-agency. 2005 to intervene on RIM’s side ernment case were BlaekBerry litigation. pressing RIM faced a dis- Fenster was “self-advocate[ ]” that, judgment among trict court other RIM’s view “at the expense [NTP]” (1) Black- to take things, urging “position[s] necessarily determined REVI’s Berry system patents had NTP’s infringed [NTP].” adverse (2) enjoined 12-13, words, in- RIM from further 121 S.Ct. 1060. In other fringement. injunc- “object Although broad communications” was [Fenster’s] stayed tion was the Feder- pending appeal, a series of DOJ decisions that would “nec- Circuit, in al court in affirming essarily district adverse to the interests of [be] [a] way ],” part, cleared the for the reinstatement NTP. competitor Id. at 121 S.Ct. injunction on Finally, remand. Fenster was not like just “consultant [who] functions as an prospect injunction prompted of an [agency] employee expected would be January to retain Herbert is, do.” Id. at That S.Ct. 1060. Fenster, Washington, D.C., lawyer, for although his entreaties to DOJ on behalf of purpose lobbying legitimate, RFM were not like the he was injunction, oppose any argue for a or consultant whose are to “only obligations one, BlaekBerry limited litigation. truth and its sense of good judgment what Fenster understood that 11, (em- calls for.” Id. at 121 1060 S.Ct. enjoined could not be use added). phasis us no lee- Klamath affords BlaekBerry system, argued he to DOJ but way. The communications Fenster-DOJ oppose injunction it should alto- an qualify do not as intra-agency. gether government-related because the BlaekBerry “uses [exempted] majority argues that could be The an out- that when inextricably from an unitary were so sider and the have a intertwined with non-government related that fits within inter- interest the common doctrine, way uses that there practical would be no between the est communications separate them.” 57. Fenster also the agency J.A. outsider and can be understood oppose urged any injunction “intra-agency” exemption be- 5. The under however, just doctrine, relates gov- cause the interest —not common interest operational exemption ernment’s interests —would be to the second condition

291 5, is, the communication “must fall holds that the common privilege is of a privilege against within the ambit sufficient protection itself invoke the Klamath, 8, discovery.” 532 U.S. at exemption 5. 1060. of the second con-

S.Ct. Satisfaction cannot as automatic dition serve satisfac- II. tion of the first condition. As the Su- preme emphasized Court majority appears to be most con- justification there is “no textual for drain- cerned an presented issue that is not ing [intra-agency] the first condition of communication, this case: whether 12, independent vitality,” at id. S.Ct. privileged under the common doc- 1060, Exemption and “the first condition of trine, between an agency non-agency and a second,” important 5 is no less than the id. co-party exempt is from disclosure under 9, satisfy S.Ct. Failure to exemption 5. question This should be left (intra-agency) first condition “rules out for day another because RIM gov- and the any application Exemption 5” to a com- ernment were not co-parties here. Rather munication that privi- would otherwise be than seeking party, to become a the Unit- 12, leged against discovery. Id. at ed States filed a statement of interest and S.Ct. 1060. later obtained leave to intervene discussed, I already As Fenster purpose limited of appearing hearing at a functioning intra-agency was not when he injunctive on relief. urged argue against injunction, DOJ to substantially or in favor of one reduced in Self-serving communications from out- scope, BlackBerry litigation. This siders, like Fenster’s on behalf of RIM to conclusion, course, gov- means that the lobby DOJ to it to file a statement of ernment cannot communicate in secret interest, very are the sort of communica- with an might outsider who have useful tions that FOIA meant expose to the advice, but who cannot be regarded as light of day. interest, A statement of acting intra-agency. In Klamath the which is § authorized 28 U.S.C. recognized, accepted, very Court designed explain to a court the interests by Congress outcome as mandated of the United States in litigation between agreed FOIA. The Court with the govern- Dubois, private parties. Blondín v. (1) argument ment’s “that the candor of (2d Cir.2001). F.3d 159 n. 6 goes It tribal communications with the Bureau [of without saying that a statement of interest Indian Affairs] would be eroded without See, can affect the e.g., Republic outcome. protections process of the deliberative Altmann, v. Austria 701- privilege recognized 5,” under (2004). 124 S.Ct. 159 L.Ed.2d 1 (2) confidentiality “that in communica- outsider, Fenster, When an such as who is tions with tribes is conducive to a proper acting intra-agency, gov- lobbies the discharge government’s] of [the trust obli- ernment file statement of interest gation Id. at [to tribes].” supporting position of the outsider’s However, the argu- client, requires FOIA that the outsider’s “skip[ped] necessary ment step,” the communications be way, disclosed. emphasized, ignore[d] Court “for it the disclosure,” “FOIA’s mandate of broad 5, Exemption first condition of the Klamath, 532 at 121 communication U.S. ‘intra-agency.’” be Id. at S.Ct. Here, healthy S.Ct. 1060. serves as a check majority the on both the skips necessary the same step government when it lobbyists. and the Later,

III. 104 S.Ct. 1488. in Klamath read exemption setting Court 5 as disproves majority’s argu- This case forth two conditions of equal importance. ment that once the decides It that exemption concluded inappli- was it has a common interest with an cable when the communications were not outsider, danger self-advocacy “the at intra-agency but normally privi- “would expense by of others subsides” or “has leged discovery.” in civil (internal past.” quotation Ante at 25 then words, at 121 S.Ct. 1060. In other omitted). alteration, marks, and citation when communications between an outsider Here, after DOJ and RIM formed a com- (intra- fail the first arguing mon for a limited in- interest condition, agency) the communications RIM, junction against (through RIM Fen- they must be disclosed even if meet ster) lobby go to much continued to (discovery second privilege) condition. oppose, public further and on all. grounds, any injunction at award not, Finally, I do majority sug- as the majority’s com- approach, Even under the formal, gests, arbitrary draw parse lines or munications between RFM and DOJ about reading words in exemption simply 5. I public interest —an area where RIM apply Supreme straightfor- Court’s not DOJ had formed common inter- interpretation ward of exemption 5 in Kla- est—should be disclosed. math: intra-agency condition excludes fundamentally, More once RIM and a self-interested outsider’s communication limiting DOJ formed a common interest in that seeks action “that is necessari- injunction, an self-advocacy RIM’s at the ly adverse to the interests of outsid- [the expense disap- of NTP did not subside or competitor[ er’s] ].” Id. S.Ct. pear an scope insofar as the 1060. RIM’s communications to DOJ were Rather, spurred was concerned. RIM was intra-agency not because RIM acted lobby press DOJ to for the narrowest throughout way in a necessarily was injunction possible, or whether adverse to NTP. As formulating DOJ was government’s interest could been ac- its statement of BlackBerry by commodated one was broader. litigation, pressed RIM argue DOJ to for a This effort RIM—to convince DOJ that very injunction, narrow which would bene- the common interest would be best ad- Thus, fit RIM at expense of NTP. essentially injunc- vanced toothless was immune from RIM’s tion—was at one level undertaken lobbying self-interested even after a com- in its own interest to weaken the position mon interest was formed. Because this NTP, At competitor. this level RIM sort lobbying intra-agency, is not ex- acting as a self-advocate and not act- emption 5 does not shield it from ing intra-agency. disclosure. The majority gets mileage no from the

Supreme Court’s statement in United Corp.,

States v. Weber Aircraft 792, 801-02, 104 1488, 79 L.Ed.2d

(1984),that it does not construe as a FOIA easy

mechanism for circumvention of nor discovery privileges.

mal The Court em

phasized “simply interpret it would says.” 5 to mean what it Id. at

Case Details

Case Name: Hunton & Williams v. United States Department of Justice

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jan 4, 2010

Citation: 590 F.3d 272

Docket Number: 08-1635

Court Abbreviation: 4th Cir.