Williams & Connolly v. SEC

Filing

OPINION filed [1346786] (Pages: 8) for the Court by Judge Randolph [10-5330]

USCA Case #10-5330

Document #1346786

Filed: 12/09/2011

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 19, 2011

Decided December 9, 2011

No. 10-5330
WILLIAMS & CONNOLLY,
APPELLANT
v.
SECURITIES AND EXCHANGE COMMISSION,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-00651)

Simon A. Latcovich argued the cause for appellant. With
him on the briefs were Robert M. Cary and Christopher R. Hart.

Michelle Lo, Assistant U.S. Attorney, argued the cause for
appellee. With her on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: GINSBURG,* Circuit Judge, and EDWARDS and
RANDOLPH, Senior Circuit Judges.
*

As of the date this opinion was published, Judge Ginsburg
had taken senior status.

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Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: The United States
prosecuted Walter A. Forbes for securities fraud. Forbes’s first
two trials resulted in hung juries; the third resulted in a verdict
of guilty. Cosmo Corigliano and Kevin Kearney testified as
government witnesses in each trial. The Securities and
Exchange Commission had been investigating Corigliano and
Kearney for related securities violations. During and after the
criminal proceedings, Forbes’s defense counsel – Williams &
Connolly LLP – sent Freedom of Information Act, 5 U.S.C. §
552, requests to the SEC. The requests sought, among other
things, the notes of SEC staff members taken during their
conversations with Corigliano, Kearney, and their attorneys. The
SEC refused to disclose the notes. After Forbes’s conviction,
Williams & Connolly sued the SEC to compel production. The
district court denied the law firm’s motion for in camera review
of the notes and granted the SEC’s motion for summary
judgment.
The SEC identified 114 sets of notes fitting Williams &
Connolly’s FOIA request. The agency’s refusal to turn over
these documents rested on FOIA exemption 5. This entitles an
agency to withhold “inter-agency or intra-agency memorandums
or letters which would not be available by law to a party other
than an agency in litigation with the agency.” 5 U.S.C. §
552(b)(5); see also NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 148-49 (1975). The exemption encompasses evidentiary
privileges such as the work-product privilege and the
deliberative process privilege, both of which the SEC claims
apply in this case. Baker & Hostetler LLP v. U.S. Dep’t of
Commerce, 473 F.3d 312, 316, 321 (D.C. Cir. 2006); Burka v.

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U.S. Dep’t of Health & Human Servs., 87 F.3d 508, 516 (D.C.
Cir. 1996).
The work-product doctrine protects from disclosure
materials “prepared in anticipation of litigation or for trial by or
for another party or its representative (including the other
party’s attorney, consultant, surety, indemnitor, insurer, or
agent).” FED. R. CIV. P. 26(b)(3)(A); see also Upjohn Co. v.
United States, 449 U.S. 383, 398 & n.7 (1981); Hickman v.
Taylor, 329 U.S. 495, 510-11 (1947); McKinley v. Bd. of
Governors of the Fed. Reserve Sys., 647 F.3d 331, 341 (D.C.
Cir. 2011). Although work product protection may be overcome
for cause in civil cases, FED. R. CIV. P. 26(b)(3)(A)(i) & (ii), any
materials disclosed for cause are not “routinely” or “normally”
discoverable and, for that reason, are exempt under FOIA. FTC
v. Grolier Inc., 462 U.S. 19, 26-27 (1983); Sears, Roebuck &
Co., 421 U.S. at 149; Martin v. Dep’t of Justice, 488 F.3d 446,
453 (D.C. Cir. 2007). Williams & Connolly does not dispute
that the 114 sets of SEC notes are work product and ordinarily
would be protected from disclosure under exemption 5. But the
firm claims work-product protection has been waived.
During Forbes’s criminal trial, the Department of Justice
disclosed to Williams & Connolly 11 of the 114 sets of notes,
along with thousands of other documents. The prosecution
apparently released the documents pursuant to Federal Rule of
Criminal Procedure 16, which obligates the government to
disclose documents that (1) are material to the defendant’s case
or (2) will be used at trial. FED. R. CRIM. P. 16(a)(1)(E)(i) & (ii).
The disclosure, Williams & Connolly argues, waived work
product protection – and thus exemption 5 – not only for the
documents that were released, but also for the remaining 103
sets of SEC notes.

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Two questions are thus presented. First, what to do about
the eleven sets of notes previously released? Second, what
impact does that disclosure have on the rest of the notes? As to
the first question, an agency has no obligation to release
documents to a requester when another agency has already given
the same requester the same documents. See Crooker v. U.S.
State Dep’t, 628 F.2d 9, 10 (D.C. Cir. 1980) (per curiam). Once
the documents are released to the requesting party, there no
longer is any case or controversy. See Carlisle Tire & Rubber
Co. v. U.S. Customs Serv., 663 F.2d 210, 214 & n.14 (D.C. Cir.
1980). Because the Department of Justice already turned over
to Williams & Connolly eleven sets of notes pursued in this
appeal, the controversy is moot with respect to those documents.
Boyd v. Criminal Div. of the U.S. Dep’t of Justice, 475 F.3d 381,
385 n.1 (D.C. Cir. 2007); Ctr. for Auto Safety v. EPA, 731 F.2d
16, 19-20 (D.C. Cir. 1984).
As to the remaining 103 sets of notes, we do not believe the
SEC has waived work product protection or that the Justice
Department’s action in the criminal trial had that effect. It is
true that if a party voluntarily discloses part of an attorney-client
conversation, the party may have waived confidentiality – and
thus the attorney client privilege – for the rest of that
conversation and for any conversations related to the same
subject matter. See In re Sealed Case, 877 F.2d 976, 980-81
(D.C. Cir. 1989); In re Sealed Case, 676 F.2d 793, 809 (D.C.
Cir. 1982). It may also be that if a party voluntarily introduces
part of a trial-preparation document memorializing a
conversation with a witness, the party cannot claim work
product protection to shield the rest of the conversation. But see
Mehl v. EPA, 797 F. Supp. 43, 47-48 (D.D.C. 1992). The rule
of completeness may itself demand introduction of the entire
conversation. Cf. 8 WIGMORE ON EVIDENCE § 2328, at 638
(McNaughton rev. 1961) (analogizing partial disclosure and
waiver to the rule of completeness); FED R. EVID. 106. But it

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does not follow that an agency’s decision to release some
documents protected by the work product privilege waives
FOIA exemption 5 for all of the agency’s similar documents.
“The purposes of the work product privilege . . . are not
inconsistent with selective disclosure – even in some
circumstances to an adversary.” In re Sealed Case, 676 F.2d at
818; see also Pittman v. Frazer, 129 F.3d 983, 988-89 (8th Cir.
1997). Thus, “disclosure of some documents does not
necessarily destroy work-product protection for other documents
of the same character.” 8 CHARLES ALAN WRIGHT, ARTHUR R.
MILLER & RICHARD L. MARCUS, FEDERAL PRACTICE AND
PROCEDURE § 2024, at 530 (3d ed. 2010).
Williams & Connolly argues that the SEC “has made no
effort to distinguish the subject matter of the documents
produced [in the criminal trial] from the documents not
produced.” But there is no reason why the SEC had any
obligation to offer such a distinction. The decision of the Justice
Department to disclose the eleven sets of notes in the criminal
proceeding has no bearing on whether FOIA permits the SEC to
withhold the remaining 103 documents. In criminal trials,
evidentiary privileges may give way for any number of reasons.
See Cottone v. Reno, 193 F.3d 550, 556 (D.C. Cir. 1999). The
government’s obligation under Brady v. Maryland, 373 U.S. 83
(1963), to produce evidence favorable to the accused is one
example. See Boyd, 475 F.3d at 390. The prospect that the
prosecution might use the item in its case-in-chief is another.
See FED. R. CRIM. P. 16(a)(1)(E)(ii). Trade-offs in negotiations
between the prosecution and the defense may also result in the
release of government work product. Whatever the reason, the
notes not turned over in Forbes’s criminal trial still remain – as
Williams & Connolly admits – work product material not
ordinarily discoverable in civil proceedings. That is, the 103
sets of notes are still within FOIA exemption 5.

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Williams & Connolly never provides us with a persuasive
reason why the disclosure of documents by one government
agency waives work product protection for other documents
held by another government agency. The theory may be that
for purposes of disclosure, the Justice Department and the SEC
must treat similar documents similarly. But even if the theory
were generally sound, which we very much doubt for reasons
stated next, it would not apply here. As we just mentioned,
disclosure in criminal trials is based on different legal standards
than disclosure under FOIA, which turns on whether a document
would usually be discoverable in a civil case. Similar
documents, in other words, are not – indeed must not be –
treated similarly in the two different types of proceedings.
To uphold Williams & Connolly’s waiver theory would be
to impinge on executive discretion and to deter agencies from
voluntarily honoring FOIA requests. See Dep’t of the Air Force
v. Rose, 425 U.S. 352, 361-62 (1976). There can be no doubt
that agencies frequently turn over documents even though FOIA
may not strictly require them to do so. In light of the enormous
volume of FOIA requests – nearly 600,000 in fiscal year 2010
– it is easy to see why agencies would operate in this manner.
An agency may decide to produce otherwise privileged
documents because the documents are innocuous. Or the agency
may determine that in light of the difficulty of establishing a
document’s exemption under FOIA, it would not be worth
fighting over. Or the agency may release documents because
the agency already has so many FOIA cases pending that it – or
the Justice Department – does not want to take on more cases
unless important documents or legal principles are at stake.
Courts have held, with respect to classified documents, that in
“exercising its discretion to make public some classified
documents, [the government] does not waive any right it has to
withhold other properly classified documents of a similar
nature.” Stein v. Dept’ of Justice, 662 F.2d 1245, 1259 (7th Cir.

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1981); see also Military Audit Project v. Casey, 656 F.2d 724,
753-54 (D.C. Cir. 1981). The same is true with respect to work
product material under FOIA exemption 5. See, e.g., Mobil Oil
Corp. v. EPA, 879 F.2d 698, 701 (9th Cir. 1989).
We end with a few words about Williams & Connolly’s
argument that in camera review was necessary to determine
whether the withheld information (1) could be used for a
collateral attack on Forbes’s conviction or (2) was material to
Forbes’s defense. The argument rests on a mistaken view of the
law. FOIA does not draw distinctions based on who is
requesting the information, or for what purpose. Whether
exemption 5 applies is a judgment “to be made without regard
to the particular requester’s identity,” except in limited
situations not relevant here. Swan v. SEC, 96 F.3d 498, 499-500
(D.C. Cir. 1996). It does not matter why the requester seeks the
information, what the requester plans to do with it, or what harm
the requester might suffer from not getting the information. See
Swan, 96 F.3d at 500; Reed v. NLRB, 927 F.2d 1249, 1252 (D.C.
Cir. 1991). For reasons we explained in Swan, 96 F.3d at 500,
requiring agencies and courts to explore the requester’s
circumstances and review documents accordingly would create
an administrative nightmare. If Williams & Connolly believes
that its client should have received the notes during his criminal
trial, FOIA is neither a substitute for criminal discovery, Roth v.
U.S. Dep’t of Justice, 642 F.3d 1161, 1177 (D.C. Cir. 2011), nor
an appropriate means to vindicate discovery abuses, Boyd, 475
F.3d at 390. The district court therefore did not abuse its
discretion in refusing to conduct in camera review. See Larson
v. Dep’t of State, 565 F.3d 857, 869 (D.C. Cir. 2009).
***
Because the work product privilege has not been waived,
the 103 sets of disputed notes are protected by exemption 5. We

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therefore need not consider whether the documents are also
within the deliberative process privilege. The judgment of the
district court is
Affirmed.

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