Twitter, Inc. v. Holder et al

Filing 283

REPLY (re 258 MOTION Challenging Defendants' Privilege Designations ) (In Support) filed byTwitter, Inc.. (Rubin, Lee) (Filed on 3/18/2019)

Case 4:14-cv-04480-YGR Document 283 Filed 03/18/19 Page 1 of 9

1
2
3
4
5
6
7
8
9
10

MAYER BROWN LLP
ANDREW JOHN PINCUS (Pro Hac Vice)
[e-mail]
1999 K Street, NW
Washington, DC 20006
Tel: [phone] / Fax: [phone]
MAYER BROWN LLP
LEE H. RUBIN (SBN 141331)
[e-mail]
DONALD M. FALK (SBN 150256)
[e-mail]
SAMANTHA C. BOOTH (SBN 298852)
[e-mail]
Two Palo Alto Square, Suite 300
3000 El Camino Real
Palo Alto, CA 94306-2112
Tel: [phone] / Fax: [phone]
Attorneys for Plaintiff Twitter, Inc.

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

OAKLAND DIVISION

14

Case No. 14-cv-4480-YGR

TWITTER, INC.,
15
16
17

Plaintiff,
v.

18
19

WILLIAM P. BARR, Attorney General of the
United States, et al.,

20
21

TWITTER INC’S REPLY IN SUPPORT
OF MOTION CHALLENGING
PRIVILEGE DESIGNATIONS
Date: April 2, 2018
Time: 2:00 p.m.
Courtroom 1, Fourth Floor
Judge: Hon. Yvonne Gonzalez Rogers

Defendants.

22
23
24
25
26
27
28
TWITTER, INC’S REPLY ISO PRIVILEGE MOTION – Case No. 14-cv-4480-YGR

Case 4:14-cv-04480-YGR Document 283 Filed 03/18/19 Page 2 of 9

1

INTRODUCTION

2

The Government’s Opposition provides no new substantive information to justify its all-

3

encompassing assertions of privilege over every unclassified document reflecting its

4

contemporaneous reasons for classifying Twitter’s draft Transparency Report—the decision at

5

the heart of Twitter’s First Amendment challenge. To be sure, the Government proffers new

6

declarations purporting to justify its assertions of privilege over the Bellwether Documents, but

7

those boilerplate and formulaic declarations simply continue to provide the same “vague and

8

generalized” legal conclusions, utterly devoid of any facts from which the Court could actually

9

assess the validity of those claims. And its attempts to distinguish Twitter’s authorities are

10

entirely circular. The Government’s apparent inability to shoulder its burden of articulating why

11

its privilege claims are proper—notwithstanding repeated opportunities to cure the same

12

specified defects—alone justifies granting Twitter’s motion to compel. See, e.g., Ecological

13

Rights Found. v. Fed. Emergency Mgmt. Agency, 2017 WL 5972702, at *5 & n.3 (N.D. Cal.

14

Nov. 30, 2017), appeal dismissed, 2018 WL 3155689 (9th Cir. Jan. 12, 2018) (granting motion

15

to compel based on similarly boilerplate privilege logs); Coleman v. Schwarzenegger, 2007 WL

16

4328476, at *10 (E.D. Cal. Dec. 6, 2007) (same).

17

The Government has also failed to rebut Twitter’s showing of need for contemporaneous

18

evidence of the Government’s basis for restricting Twitter’s speech. The Government simply

19

reiterates its position that such contemporaneous evidence is irrelevant, and that the Court should

20

decide Twitter’s as-applied challenge based solely on the Government’s post hoc declarations

21

offered in the context of this litigation. But those arguments have already been rejected by the

22

Court (when it granted Twitter’s motion to compel the production of these 2014 materials). And

23

for good reason, as the Government’s rationale for classifying Twitter’s report at the time it

24

classified it (in 2014) is far more probative of the Government’s actual bases for suppressing

25

Twitter’s speech (and whether that restriction was narrowly tailored as the First Amendment

26

requires) than a carefully crafted, litigation-tailored declaration could ever be.

27

In short, the Government has failed to justify its assertions of privilege over evidence central

28

to Twitter’s First Amendment challenge. As a consequence, Twitter’s motion should be granted.
1
TWITTER, INC’S REPLY ISO PRIVILEGE MOTION – Case No. 14-cv-4480-YGR

Case 4:14-cv-04480-YGR Document 283 Filed 03/18/19 Page 3 of 9

1
2

ARGUMENT
A. The Government has not justified its invocation of the deliberative process privilege.

3

The Government insists in boilerplate fashion that it has carried its burden,1 but its arguments

4

that the Bellwether Documents are predecisional are circular and contrary to the record. Nor has

5

the Government rebutted Twitter’s showing that the documents are directly at issue in this

6

litigation—which independently dooms its deliberative process privilege claim.

7

1. The Bellwether Documents are post-decisional.

8

The Government’s claim that the Bellwether Documents are predecisional is contrary to the

9

record and defies common sense. The Government argues that none of the Bellwether

10

Documents relate to the reporting framework published by the Office of the Director of National

11

Intelligence (“ODNI”) on January 27, 2014 (the “ODNI Framework,” see Dkt. No. 1, Ex. 1), but

12

the FBI’s September 9, 2014 letter to Twitter expressly invoked the ODNI “framework” and

13

Twitter’s non-compliance with its “bands” as the basis for restricting Twitter’s speech (see Dkt.

14

No. 1, Ex. 5). And the Government’s attempt to avoid characterization of the ODNI Framework

15

as an official agency “position,” Dkt. No. 278, at 6 & n.3,2 misses the crux of Twitter’s

16

challenge: that—to the extent the Bellwether Documents reflect the final application of any

17

official policy to Twitter—the deliberative process privilege does not apply, Dkt. No. 258-1, at 2.

18

Far from carrying the Government’s burden, its supplemental declarations provide further

19

reason to suspect that the Bellwether Documents contain at least some official agency opinions

20

and recommendations as to “what the law [was]” in 2014 and how it should apply to Twitter.

21

See Tax Analysts v. I.R.S., 117 F.3d 607, 617 (D.C. Cir. 1997). The Government describes

22

Samples 2 and 3, for example, as “opinions and recommendations concerning the manner in

23

which the FBI would respond to communications from Twitter to the FBI … and the process that

24
25
26
27
28

1

“The party asserting the privilege has the burden of establishing all of its elements and, even if
established, the privilege is strictly construed.” N. Pacifica, LLC v. City of Pacifica, 274 F.
Supp. 2d 1118, 1126 (N.D. Cal. 2003).
2
The ODNI’s characterization of its reporting “framework” as a “declassification” of
information, Dkt. No. 1, Ex. 1, is irrelevant. Fundamentally, the ODNI Framework is a
statement about what companies could lawfully publish in 2014, and that is what makes it an
official agency position. See Tax Analysts, 117 F.3d at 617.
2
TWITTER, INC’S REPLY ISO PRIVILEGE MOTION – Case No. 14-cv-4480-YGR

Case 4:14-cv-04480-YGR Document 283 Filed 03/18/19 Page 4 of 9

1

the FBI should follow in preparing that response,” see, e.g., Dkt. No. 278-1, at 6:9–11 (Sample

2

2), 7:20–22 (Sample 3)—in other words, precisely the kind of guidance that Tax Analysts found

3

unprotected. Compare Tax Analysts, 117 F.3d at 617 (finding FSAs unprotected because “[t]hey

4

contain the answers of the national office of the Office of Chief Counsel to legal questions

5

submitted by … personnel in the field”).

6

The Government’s characterization of all its recommendations and opinions as

7

“preliminary” suspends common sense: At some point before the Government redacted portions

8

of Twitter’s Report, someone in the agency made a final decision, or issued a final

9

recommendation, regarding how to respond to Twitter’s publication request. Such decisions,

10
11

recommendations, or applications of established agency policy are not protected.
The Government relatedly suggests that an agency official cannot convey a “considered”

12

recommendation or opinion over email, and that any application of Government policy that

13

occurs via email (rather than in memoranda) is insulated from discovery as long as lawyers were

14

involved. Yet even Tax Analysts (decided before email gained its modern ubiquity) rejected that

15

kind of “formalism,” finding FSAs to reflect the agency’s official position even though they

16

were “not formally binding” and sometimes “evaluate[d] the strengths and weaknesses of

17

alternative views.” 117 F.3d at 617. Furthermore, this District specifically found inter-agency

18

emails “convey[ing] each agency’s official policy to the other agency” to be post-decisional to

19

the same extent as other forms of communication “implement[ing] an established [agency]

20

policy.” Ecological Rights Found., 2017 WL 5972702, at *5 & n.3. So too here, any emails

21

conveying or applying an established agency policy are not protected simply because they are in

22

email form and lack a formal title like “Final Agency Decision.”

23
24
25
26
27

2. Independently, the deliberative process privilege does not apply because the
Government’s reasons for classifying Twitter’s Report are directly “at issue.”
The Government’s Opposition also fails to counter Twitter’s showing, see Dkt. No. 258-1,
at 7–9, that any valid claim of deliberative process privilege must give way to Twitter’s need for
documents reflecting deliberations directly at issue in this litigation. The Government rehashes
the same well-worn arguments that it asserted in resisting this discovery in the first place—

28
3
TWITTER, INC’S REPLY ISO PRIVILEGE MOTION – Case No. 14-cv-4480-YGR

Case 4:14-cv-04480-YGR Document 283 Filed 03/18/19 Page 5 of 9

1

namely, that contemporaneous evidence of the Government’s actual reasons for engaging in the

2

very acts Twitter challenges as unconstitutional are somehow irrelevant to the constitutional

3

inquiry. But the Court has already rejected the Government’s specious relevance objection.

4

Compare Dkt. No. 188 (February 12, 2018 order overruling relevance objections to Twitter’s

5

first set of discovery requests), with Dkt. No. 258-2, Ex. A (first set of discovery requests

6

seeking discovery into policies applied and the reasons offered in 2014 for classifying Twitter’s

7

Transparency Report); cf. N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 152 (1975) (“the

8

public is vitally concerned with” documents reflecting “the reasons which did supply the basis

9

for an agency policy actually adopted”).

10

Indeed, as Twitter has previously explained, such contemporaneous evidence is highly

11

relevant—not only to whether the Government engaged in the kind of individualized analysis

12

that this Court has found the Ninth Circuit requires before restricting Twitter’s speech, see Dkt.

13

No. 186 (Order on Reconsideration), at 7;3 In re NSL, 863 F.3d 1110, 1125 (9th Cir. 2017), but

14

also to the adequacy of (and deference due) the Government’s post hoc explanations (in the

15

Steinbach and Ghattas Declarations) for those restrictions. And the Government’s admission

16

that “the unclassified Steinbach Declaration provides … far greater … detail” about the

17

Government’s supposed “individualized consideration[]” of Twitter’s unique attributes than the

18

contemporaneous documents, Dkt. No. 278, at 8, further suggests the lack of any meaningful

19

Government process in 2014—underscoring the likely unconstitutionality of the Government’s

20

original classification decision. The fact that “relevant information exists elsewhere” (id. at 9)—

21

in the form of litigation-driven declarations prepared in 2016 and 2017—does not render the

22

Government’s 2014 contemporaneous deliberations any less “at issue” in the case. Indeed, given

23

the Government’s silence throughout this litigation about what precisely it did or considered in

24

2014, Twitter’s discovery into these communications is essential.

25

The Government’s attempt to distinguish Karnoski is likewise unpersuasive because it, too,

26
27
28

3

The Government’s attempt to distinguish In re NSL as a case about restrictions in individual
NSLs rather than restrictions on aggregate reporting is a distinction with no consequence. Both
are quintessential content-based prior restraints on speech that must pass constitutional muster.
4
TWITTER, INC’S REPLY ISO PRIVILEGE MOTION – Case No. 14-cv-4480-YGR

Case 4:14-cv-04480-YGR Document 283 Filed 03/18/19 Page 6 of 9

1

rests on the mistaken premise that the Government’s actual reasons for restricting Twitter’s

2

speech are irrelevant. As in Karnoski, the Government here has demanded deference to a

3

proffered justification for intruding on a plaintiff’s constitutional rights, while simultaneously

4

seeking to bar discovery into evidence necessary to test whether that justification passes strict

5

scrutiny. Karnoski’s reasoning that the Government may not simultaneously claim that its

6

decision comported with governing constitutional standards “while also withholding” evidence

7

“central” to that determination, Karnoski v. Trump, 328 F. Supp. 3d 1156, 1162 (W.D. Wash.

8

2018), applies with equal force here.

9

B. The Government cannot show that the work product doctrine applies.

10

As explained in Twitter’s motion (at 11), the work product doctrine (a qualified privilege)

11

gives way to Twitter’s need for highly probative evidence and is inapplicable for the same

12

reasons as the deliberative process privilege. But the Court need not even address the need

13

exception here, because the Government has not carried its burden of showing that the

14

documents in question were materially affected by the prospect of future litigation with Twitter.

15

Dkt. No. 258-1, at 9–11. Where “a document serves a dual purpose, that is, where it was not

16

prepared exclusively for litigation,” the work product doctrine applies only if the party claiming

17

privilege can show that the document “‘would not have been created in substantially similar form

18

but for the prospect of litigation.’” United States v. Richey, 632 F.3d 559, 568 (9th Cir. 2011)

19

(quoting In re Grand Jury Subpoena, 357 F.3d 900, 908 (9th Cir. 2004)).

20

The Government is incorrect in suggesting that Twitter’s public threat to sue effectively

21

transformed all of the Government’s subsequent discussions over the draft Transparency Report

22

into protected work product. Because the documents indisputably were not prepared exclusively

23

for litigation, the Government retains the burden of identifying some concrete way in which that

24

public threat of litigation materially affected the form or content of the documents in question,

25

which it has not done. Rather, the Government has simply cut-and-paste the same formulaic

26

assertion that each and every Bellwether Document was “prepared and developed in anticipation

27

of litigation concerning Twitter’s draft transparency report.” Dkt. No. 278, at 12; Dkt. No. 278-1

28

(Declaration of Cecilia Bessee ISO Opp.). That legal conclusion is insufficient.
5
TWITTER, INC’S REPLY ISO PRIVILEGE MOTION – Case No. 14-cv-4480-YGR

Case 4:14-cv-04480-YGR Document 283 Filed 03/18/19 Page 7 of 9

1

The Government also invokes In re Grand Jury Subpoena to support its work product

2

assertion; but there, the record provided a concrete and identifiable basis for believing that the

3

defendant’s response—prepared by the attorney it hired after learning that it was under criminal

4

and civil investigation by the EPA—was shaped by the impending threat of litigation. 357 F.3d

5

at 908. Conversely, as noted above, the Government has identified nothing it would have said or

6

done differently had Twitter not threatened litigation.

7

The Government also invokes the omnipresent risk that Twitter or “other providers seeking

8

to publish [similar] information” might challenge the Government’s position regarding aggregate

9

reporting on national security process. Dkt. No. 278, at 12. But that is precisely the kind of

10

overly general risk of litigation that courts have consistently rejected as insufficient to

11

demonstrate work product protection. See Dkt. No. 258-1, at 10.

12

C. The Government’s supplemental privilege logs do not cure the fatal deficiencies in its
attorney-client privilege claims.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The Government’s declarations offered in opposition to Twitter’s privilege motion contain
boilerplate incantations of the elements of the attorney-client privilege and therefore add nothing
meaningful to those privilege claims. For example, the Government’s submissions do not
identify in any reasonable level of detail “what sorts of legal issues” are supposedly discussed in
the Bellwether Documents. Nor has the Government offered any factual basis upon which the
Court could conclude that the Government attorneys in these communications were wearing their
“legal”—as opposed to political, strategic, or policymaking—hats at the time of the challenged
communications. See Dkt. No. 258-1, at 12–14. Take Sample 2, for example, where the
Government merely repeats the various elements of the attorney-client privilege:
This document contains confidential communications among [agency] attorneys …
made during the process of seeking and conveying legal advice, in order for the
General Counsel to issue a statement on behalf of the agency. These
communications were made in furtherance of the FBI’s legal representation by
professional legal advisers in their capacities as lawyers. These communications
also reflect the General Counsel seeking and receiving operational advice from the
FBI OGC attorney in furtherance of the General Counsel’s representation of the
agency, in particular, to inform the legal advice he would be providing to the
agency.
This hopelessly opaque description tells the Court nothing of substance about the
6
TWITTER, INC’S REPLY ISO PRIVILEGE MOTION – Case No. 14-cv-4480-YGR

Case 4:14-cv-04480-YGR Document 283 Filed 03/18/19 Page 8 of 9

1

communications in question except that many of the participants hold a law degree. But as

2

explained in Twitter’s Motion (at 13–14), “[t]he fact that a person is a lawyer does not make all

3

communications with that person privileged.” United States v. Martin, 278 F.3d 988, 999 (9th

4

Cir. 2002); In re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998) (Government lawyers advise on

5

a range of “political, strategic, [and] policy issues,” none of which is “shielded from disclosure

6

by the attorney-client privilege.”).

7

The Government claims that its logs and declarations are meaningfully different from those

8

rejected in the precedent Twitter cites, but a simple review of the Government’s boilerplate

9

explanations belies that conclusion.4 The Government has now had three chances to produce

10

sufficiently detailed and tailored descriptions to support its privilege logs, but instead has offered

11

only generic and conclusory summaries that fail to carry its burden.5 The Court should not

12

afford the Government another bite at the apple. See Ecological Rights Found., 2017 WL

13

5972702, at *7 (granting motion to compel over privilege objections where government had

14

“three opportunities” to offer something beyond “boilerplate recitation[s] of the elements of [the]

15

attorney-client privilege” and failed to do so).

16

CONCLUSION

17
18

Accordingly, Twitter respectfully requests that its Motion Challenging Defendants’ Privilege
Designations be granted.

19
20
4

21
22
23
24
25
26
27
28

Moreover, the Government is wrong in urging that the rule announced in Weiner v. FBI—that
privilege claims must be “tailor[ed] … to the specific document withheld,” 943 F.2d 972, 978–
79 (9th Cir. 1991)—does not apply to attorney-client privilege claims, see Dkt. No. 278, at 10
n.6. That portion of the Court’s analysis was not confined to any particular FOIA exemption, but
was a general criticism of the government’s privilege logs that, as later decisions have
confirmed, applies equally to all kinds of privilege claims. See, e.g., Ctr. for Biological
Diversity v. Office of Mgmt. & Budget, 625 F. Supp. 2d 885, 892 (N.D. Cal. 2009) (rejecting the
Government’s attorney-client privilege claims, specifically because the Government had failed to
“tailor [its] explanation[s] to the specific document withheld” (quoting Weiner, 843 F.2d at 978–
79)); Our Children’s Earth Found. v. Nat’l Marine Fisheries Serv., 85 F. Supp. 3d 1074, 1088
(N.D. Cal. 2015) (same); accord Coleman, 2007 WL 4328476, at *6 (same analysis as to
deliberative process privilege claim).
5
In its initial logs, in its logs following Twitter’s July 31, 2018 notice of various deficiencies
(Dkt. No. 258-4), and in its supplemental declarations offered in opposition to Twitter’s Motion.
7
TWITTER, INC’S REPLY ISO PRIVILEGE MOTION – Case No. 14-cv-4480-YGR

Case 4:14-cv-04480-YGR Document 283 Filed 03/18/19 Page 9 of 9

1

Dated: March 18, 2018

MAYER BROWN LLP

2
3
4
5
6
7
8
9

/s/ Lee H. Rubin
LEE H. RUBIN (SBN 141331)
[e-mail]
SAMANTHA C. BOOTH (SBN 298852)
[e-mail]
Two Palo Alto Square, Suite 300
3000 El Camino Real
Palo Alto, CA 94306-2112
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Plaintiff
TWITTER, INC.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
TWITTER, INC’S REPLY ISO PRIVILEGE MOTION – Case No. 14-cv-4480-YGR