SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER James B. Reed (AZ Bar No. 014015) Attorneys for Plaintiff Jay Anthony Dobyns IN THE UNITED STATES COURT OF FEDERAL CLAIMS JAY ANTHONY DOBYNS, Plaintiff, vs. THE UNITED STATES, Defendant. CASE NO. 08-700C (Judge Francis M. Allegra) (Judge John M. Facciola Special Master) PLAINTIFF JAY ANTHONY DOBYNSREPLY MEMORANDUM RE COMPLIANCE ANDAPPLICABILITY OF PRIVILEGES AND EXCEPTIONSRE SPECIAL MASTERS APRIL 13, 2015 ORDER BAIRD, WILLIAMS & GREER, L.L.P. 6225 NORTH 24TH STREET, SUITE 125 PHOENIX, ARIZONA 85016 TELEPHONE(602) 256-9400 FACSIMILE (602) 271-9308 Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 1 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 1 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER i TABLE OF CONTENTS Page TABLE OF CONTENTS.i TABLE OF AUTHORITIES...iii I.Summary of argument1II.Several themes have emerged as dominant. A.The February 8, 2011 Amended Protective Order curesany concerns by DOJ that legitimate governmental orpersonal privacy considerations will impaired by publicviewing of the facts and documents..3 B.Defendant cannot defend its broad assertion of attorney clientand law enforcement privileges and attorney work productprotection regarding witness interviews.4 C.Factual portions of documents are not protected by thedeliberative process privilege5 D.Importantly, the deliberative process privilege is not intendedto bestow upon the federal government greater evidentiaryprivileges than ordinary citizens in court, or beyond what isnecessary to protect uniquely governmental functions9 E.Defendants arguments as to the chilling effect thatdisclosure of OPR and recent attorney documents will cause, underestimates the ability of the courts to make properdecisions on a case by case basis.10 III.The deliberative process privilege does not assist defendantto the categorical extent sought. A.The privilege is rooted in narrow origins.12 B.The deliberative process privilege is narrowly construed13 Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 2 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 2 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER ii TABLE OF CONTENTS, contd Page I.The governments characterization of the deliberative processprivilege misapprehends it. A.Decisions are intended to be limited to formal proceedingsor policy deliberations..16 B.Personal interests of particular employees in avoidingdisclosure of information do not qualify for the privilege17 C.The misconduct exception to the privilege extends beyondmisconduct in the deliberative process itself, to anydocuments shedding light on government misconductrelevant to the underlying proceeding prompting thedocument request19 CONCLUSION..21 Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 3 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 3 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER iii TABLE OF AUTHORITIES Cases: Page(s) Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 154 (D.D.C. 1999).20 Bank of Dearborn v. Saxon, 244 F.Supp. 394 (E.D.Mich. 1965)..13, 14, 15, 20 Chaplaincy of Full Gospel Churches v. Johnson, CV No. 99-2945, p. 5(D.D.C. 2003) (Memorandum Opinion).20 Department of the Interior and Bureau of Indian Affairs v.Klamath Water Users Protective Association, 532 U.S. 1 (2001)..18-19 First Eastern Corporation v. Mainwaring, 21 F.3d 465 (D.C. Cir. 1994).13 Founding Church of Scientology of Wash., D.C., Inc. v. Nat'l Sec. Agency,610 F.2d 824 (D.C. Cir. 1979).13 Hinckley v. United States, 140 F.3d 277 (D.C. Cir. 1998)..7, 20 In re Franklin National Bank Securities Litigation, 478 F. Supp. 577(E.D.N.Y. 1979)..6, 10, 11, 15, 18, 19 In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997)..6, 10-11, 13, 19 Kaiser Aluminum & Chemical Corporation v. U.S., 157 F.Supp. 940(Cl. Ct. 1958).12, 13, 18 McPeek v. Ashcroft, 202 F.R.D. 332 (D.D.C. 2001)..8 Morley v. Central Intelligence Agency, 508 F.3d 1108 (D.C. Cir. 2007)..8, 13 National Labor Relations Board et al. v. Sears, Roebuck & Co.,421 U.S. 132 (1975).8, 12, 17, 20 Playboy Enterprises, Inc. v. Department of Justice, 677 F.2d 931(D.C. Cir. 1982)...9, 11 Southwest Center for Biological Diversity and Robin Silver, M.D.,v. United States Department of Agriculture, 170 F. Supp. 2d 931 (D. Ariz. 2000).7 Taxation with Representation Fund v. Internal Revenue Service,646 F.2d 666 (D.C. Cir. 1981)..13, 16-19 Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 4 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 4 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 1 PlaintiffJayAnthonyDobyns,throughcounselundersigned,intheabove-captioned action against defendant United States, on behalf of the Bureau of Alcohol, Tobacco,Firearms&Explosives(ATF),andpursuanttotheSpecialMastersOrder datedMay14,2015,Document379,submitsthefollowingreplymemorandum regardingplaintiffsrequestfortheOfficeofProfessionalResponsibility(OPR) documentsrelevanttothisactionandthenon-discloseddocumentsrelatingtothe issuesintheSpecialMastersApril13,2015Orderinthepossessionofthecurrent, post-October 24, 2014 Department of Justice (DOJ) Civil Division counsel. I.Summary of Argument. Substantial evidence is now before the Court supporting the allegations that Civil Division attorneys committed fraud upon the Court, and also against Jay Dobyns, by injuring his ability to make arguments in Court that may have changed the trajectory of certain aspects of the lawsuit.The Office of Professional Responsibility (OPR) investigative file and evidence withheld by the current Civil Division trial team regarding fraud and crime may constitute evidence of breaches of ethical rules, material misrepresentations, and the possible violation of criminal statute 18 U.S.C. 1001(a) with false statements to this Court and to OPR.Jay Dobyns and this Court have a right to know the factual evidence that OPR and the current trial team possess. The course and scope of employment of those investigated attorneys makes the related documents discoverable. The Department of Justice does not employ attorneys to commit a crime or a fraud upon the court.Therefore, to the extent that any communications with counsel or work-product relate to such facts, the attorney-client privilege and work product protections do not apply; those communications are Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 5 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 5 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 2 between lawyers at the Department of Justice and individuals merely conferring in a witness capacity.Those interviews should be entirely discoverable. To that extent, notes and memoranda disclosing admissions by those witnesses to the Department of Justice about whether, inter alia, Civil Division attorneys encouraged or assisted Charles Higman to make one or both telephone calls to Christopher Trainor, are simply notes of witness meetings that relate to underlying allegations and should be discoverable.Such communications should have been undertaken only at a deposition of the Justice Department attorneys implicated in the misconduct, especially since some of the communications may relate to instances of crime or fraud that has not yet been detected or alleged to the Court. For instance, if one of the attorneys did encourage or assist Higman to contact or threaten Trainor, any awareness by the current trial team of those facts similarly requires reporting to the Court, just as with the underlying allegations of required reporting of misconduct. The fact that the Justice Department improperly chose to conduct such witness interviews where such relevant information was discussed, and did so outside the presence of the Special Master and the plaintiff and his counsel means that the Justice Departments notes and emails are the only method of discovering what was said about the crime or fraud. Thus, the crime-fraud exception applies to privileges and protections otherwise available to defendant. Those communications might have been protected; but not so for the Justice Department, which serves the American Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 6 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 6 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 3 people, not seven lawyers and witnesses to actions by them that may constitute fraud on the court, against the plaintiff, and potentially also crimes.That is the consequence of the Justice Departments tolerance of its conflict of interest between its duties to the public and its representation of its own employees in their personal capacity. The conclusion that attorney-client privilege and attorney work product protections do not apply, is reached without plaintiff even having to invoke the crime-fraud exception. However, if and to the extent that the Department of Justice has or continues to assist attorneys to shield existing evidence that one or more Civil Division attorneys: (1) encouraged defense witness Charles Higman to threaten plaintiffs witness Christopher Trainor, (2) threatened Trainors career if he reported the threats to this Court; (3) encouraged or directed ATFs Michael Gleysteen and/or Ron Turk to close down the criminal investigation of the Higman threats, and to do so without interviewing Higman; or 4) conspired to withhold all of the foregoing from this Court; then the current Justice Department trial team is advancing a crime or fraud upon this Court.In that case, the crime-fraud exception trumps the attorney-client privilege and the attorney-work product protections for the current legal team and their documents related to such evidence of wrong-doing, especially any currently unknown instances.II.Several themes have emerged as dominant. A.The February 8, 2011 Amended Protective Order cures any concerns by DOJ that legitimate governmental or personal privacy considerations will impaired by public viewing of the facts and documents. The Justice Department cannot escape the fact that in 2010 and 2011, in this action, it participated at length in negotiating and stipulating to an amended protective order that protects against every privacy and government functionality argument that Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 7 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 7 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 4 defendant has offered as a reason to protect documents.Indeed, the original protective order arose in August 2010, during the deposition of ATF witness William Newell to protect his personnel files, and then was expanded at the request of the government to include any matters covered by the Privacy Act or which related to ongoing law enforcement investigations.The Justice Department sourced the draft of a protective order, then requested the Amended Protective Order, and now complains that the Order is valueless when it comes to any of the privileges at issue in this proceeding.The Justice Department should not be heard to complain about the deficiencies of a protective order which prevents the very outcome upon which it bases it deliberative process privilege claim exposure to the general public.The Amended Protective Order demonstrates that such will not occur here.Defendant offers no rationale for why the Amended Protective Order does not satisfy each and every privacy concern, especially when in camera review can precede the disclosure of each document to plaintiff.This issue concluded four years ago by the clear language of the Amended Protective Order. B.Defendant cannot defend its broad assertion of attorney client and law enforcement privileges and attorney work product protection regarding witness interviews. Defendant has failed to overcome the extensive law cited by plaintiff in his opening memorandum, that the attorney-client and law enforcement privileges and the attorney work product protections are limited in scope and are not persuasive or insurmountable here, particularly where the attorneys accused of misconduct are mere witnesses when questioned about the allegations now at issue. Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 8 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 8 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 5 The privileges fail in the face of the crime-fraud exception, when the evidence protected by the Justice Department relates to matters not yet before the Court, such as potentially using Higman to tamper with Trainor, or where fresh evidence may exist to prove the multiple allegations set forth in plaintiffs opening memorandum, or that is unknown to either plaintiff or the Court.Based on the Valarie Bacon incident and the recent pleading series regarding defendants attempted clawback of documents, reasons exist to believe that DOJs pattern and practice in the trial is being repeating now, and that OPR and the new trial team possess admissions of witnesses that Civil Division attorneys assisted Higman to threaten Trainor and encouraged the closure of ATFs criminal investigative file against Higman, without an interview of him. Every hole that discovery has down, with respect to DOJ memoranda and emails on these topics of unethical and fraudulent conduct, has produced relevant evidence.Plaintiff submits that the parties have reached the point where the presumptions now favor disclosure of the withheld documents. C.Factual portions of documents are not protected by the deliberative process privilege.Defendant has no persuasive response that factual matters collected by OPR or the current trial team are not protected by the deliberative process privilege. Most of what plaintiff seeks do not even have any analytical component to them they are the records produced to OPR and to the current trial team, and the statements by witnesses, who merely happen to also be former trial team members.The fact that those witnesses work for the Justice Department does not translate to defense counsel having unlimited access to them outside of plaintiffs ability to question and monitor, along with the right of the Special Master to observe the questioning.This is not Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 9 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 9 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 6 inconsistent with the Courts Opinion that the barred attorneys can help in preparing a defense; however, factual statements as to whether anyone encouraged Higman to contact Trainor or helped to shut down ATFs criminal investigation Higmans threats are factual matters that are susceptible to investigation by all parties and the Court.This is a mainstream interpretation of the deliberative process privilege: Implicit in the two theories upon which the official information privilege rests is an important limitation upon its scope. The privilege protects only expressions of opinion or recommendations in intragovernmental documents; it does not protect purely factual material. (citations omitted) In re Franklin National Bank Securities Litigation, 478 F. Supp. 577, 581-582 (E.D.N.Y.1979).Within the District of Columbia Circuit, this exception is well-accepted: Our review of the withheld documents indicates that several documents are either wholly factual or contain segregatable factual sections that would not come under the deliberative process privilege. In re Sealed Case, 121 F.3d 729, 740 (D.C. Cir. 1997). Indeed, access to factual information is a key distinction between it and the executive privilege afforded the White House: The protection offered by the more general deliberative process privilege will often be inadequate to ensure that presidential advisers provide knowledgeable and candid advice, primarily because the deliberative process privilege does not extend to purely factual material. Id. at 750.The need to expose factual information is in fact the cleave point of the deliberative and executive privileges. Id. at 751. Federal courts have found that the mere possibility of a decision based on factual investigations is insufficient to protect facts from discovery:Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 10 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 10 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 7 TheNinthCircuithasrejectedattemptstocharacterize informationaspre-decisionalbyreference"toadecision that possibly may be made at some undisclosed time in the future." Assembly, 968 F.2d 916. Without this limitation, the Assemblycourtfearedthat"anymemorandumalwayswill be'predecisional.'"Id.Here,theCourtfindsthatthe potentialfutureuseofReynolds'dataistooremoteto rendertherequestedmaterialpredecisional.Seealso CoastalStatesGasCorp.v.DepartmentofEnergy,199 U.S.App.D.C.272,617F.2d854,868(D.C.Cir.1980) ("Characterizingthesedocumentsas'predecisional'simply because they play into an ongoing audit process would be a serious warping of the meaning of the word."). Southwest Center for Biological Diversity and Robin Silver, M.D., v. United States Department of Agriculture, 170 F. Supp. 2d 931, 941 (D. Ariz. 2000).1 The District of Columbia Circuit Court agrees that no pre-decisional presumption operates: "Accordingly, to approve exemption of a document as pre-decisional, a court must be able to pinpoint an agency decision or policy to which the document contributed." [.] Communications are "deliberative" if they are "part of the agency give-and-take by which the decision itself is made. The agency must establish what deliberative process is involved, and the role played by the documents in issue in the course of that process." Hinckley v. United States, 140 F.3d 277, 284 (D.C. Cir. 1998).Factual questionnaires and interview notes by Civil Divisions current counsel of the attorneys and other personnel involved are simply interviews of witnesses, not 1 Defendants have only raised the possibility that release of theinformationcouldadverselyaffectonestudyofthe goshawk. They have not shown that release "would actually inhibit"thedecision-makingprocess,andsohavenot carriedtheirburdenofshowingthatReynolds'datafalls within the privilege. Southwest Center for Biological Diversity, 170 F. Supp. 2d at 940. Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 11 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 11 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 8 inter-agency communications, similar to the NLRB decision-making process upon which McPeek v. Ashcroft, 202 F.R.D. 332, 334 (D.D.C. 2001), decision2 relies: A member of the staff of the Regional Office then conducts an investigation of the charge, which may include interviewing witnesses and reviewing documents.29 CFR 101.4. National Labor Relations Board et al. v. Sears, Roebuck & Co., 421 U.S. 132, 139 (1975).See Morley v. Central Intelligence Agency, 508 F.3d 1108, 1127 (D.C. Cir. 2007), (factual material that does not reveal the deliberative process is not protected by this exemption.") vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984) (citing Paisley v. CIA, 229 U.S. App. D.C. 372, 712 F.2d 686, 698 (D.C. Cir. 1983)).The party claiming the deliberative process privilege is required to sever thedeliberative portions of the memorandum from the factual, discoverable parts: The "deliberative process privilege" of Exemption 5 protects from disclosure opinions and recommendations on which governmental decisions are based.(citations omitted) The exemption does not protect "purely factual material appearing in ... documents in a form that is severable without compromising the private remainder of the documents." EPA v. Mink, 410 U.S. at 91, 93 S. Ct. at 837. 2 Plaintiff conducted as broad a search for case law as it deemed possible in searching for personnel decisions invoking the deliberative process privilege, without finding the Special Masters McPeek decision.As clear and forcefully articulated as the Special Masters opinion is in that decision, defendant failed to produce any other examples of the deliberative process privilege extended to personnel proceedings or any other operational, logistical equivalents.Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 12 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 12 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 9 Playboy Enterprises, Inc. v. Department of Justice, 677 F.2d 931, 935 (D.C. Cir. 1982).See Morley at 1129(On remand [.] the district court also shall make the requisite segregability determination.)3 D.Importantly, the deliberative process privilege is not intended to bestow upon the federal government greater evidentiary privileges than ordinary citizens in court, or beyond what is necessary to protect uniquely governmental functions. 3 Far from representing a difficult task, for those DOJ documents where both facts and analysis appear, especially where a litigant such as Jay Dobyns seeks facts relating to government misconduct, those categories are likely already separated in many instances and easily severable: In other words, the court concluded that the factual material in the Report is severable from those parts which are protected.In its brief in this court Playboy endorses this analysis, emphasizing that it does not "wish to probe the process whereby the task force assigned reliability or weight to specific evidence.Rather, it merely seeks the facts that were uncovered in this investigation of alleged government misconduct in the early 1960's." (Brief for Appellee at 25-26) The Department, on the other hand, argues that the entire Rowe Report reflects the "choice, weighing and analysis of facts" by the task force, and is therefore protected as a part of the deliberative process. (Brief for Appellant at 25) According to the Department "it is the very narration of the facts that reflects the evidence selected and credited." Id. WearenotpersuadedbytheDepartment'sargument.Anyone making a report must of necessity select the facts to bementionedinit;butareportdoesnotbecomeapartof thedeliberativeprocessmerelybecauseitcontainsonly thosefactswhichthepersonmakingthereportthinks material.Ifthiswerenotso,everyfactualreportwouldbe protected as a part of the deliberative process. Playboy Enterprises, 677 F.2d at 935. Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 13 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 13 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 10 The deliberative process privilege exists in recognition of the unique functions undertaken by the federal government, which ordinary citizens do not incur, and which require accommodation in the scheme of evidentiary privileges. However, that accommodation is not meant to disproportionately advantage the government in court, but merely to bring its burdens even with private litigants: The assumption is that "government, no less than the citizen, needs open but protected channels for the kind of plain talk that is essential to the quality of its functioning." (citations omitted). In re Franklin National Bank Securities Litigation, 478 F. Supp. at 581.Accordingly, defendant is owed no more protections for internal emails and communications related to employee misconduct than is a private, corporate litigant whose emails on that topic would be entirely discoverable. There is nothing unique to governments functioning from hiring, firing or disciplining employees, and therefore there is no fair inclusion of such topics and facts under the deliberative process privilege for the government. E.Defendants arguments as to the chilling effect that disclosure of OPR and recent attorney documents will cause, underestimates the ability of the courts to make proper decisions on a case by case basis. Defendant consistently worries that the Special Master will open the door to accountability of Justice Department attorneys through greater awareness of attorney conduct and misconduct. What has emerged from this case is that a turn of the tide may benefit DOJ by reminding it that its attorneys must comport themselves in accordance with ethical rules and civil and criminal laws, a net positive result: For example, where there is reason to believe the documents sought may shed light on government misconduct, "the privilege is routinely denied," on the Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 14 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 14 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 11 grounds that shielding internal government deliberations in this context does not serve "the public's interest in honest, effective government." Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867, 885 (1st Cir.1995); see also In re Comptroller of the Currency, 967 F.2d at 634 ("the privilege may be overridden where necessary ... to `shed light on alleged government malfeasance'") (quoting Franklin Nat'l Bank, 478 F.Supp. at 582); Wetlaufer, supra, at 852 n. 25, 855 (listing cases). In re Sealed Case, 121 F.3d at 738.The publics interest in proper government functioning benefits from a litigant exposuring of misconduct by the government: Strong competing interests must be weighed against the government's interest in nondisclosure. Foremost is the interest of the litigants, and ultimately of society, in accurate judicial fact finding. See, e. g., Bank of Dearborn v. Saxon, 244 F.Supp. 394, 401-403 (E.D.Mich.1965), aff'd, 377 F.2d 496 (6th Cir. 1967) ("the real public interest under such circumstances is not the agency's interest in its administration but the citizen's interest in due process") [.] In re Franklin National Bank Securities Litigation, 478 F. Supp. at 582.Even if the Court does not anticipate that accountability in this case will lead the Justice Department to be required to deal with more good faith with federal courts in the future, nevertheless, the apocalyptic access to internal Justice Department communications is unlikely where the courts continue to use case by case discretion: The official information privilege requires a fresh balancing of the competing interests in each case where the privilege is asserted. Holding that the unique circumstances of this case require the disclosure of the confidential section of the FNB Examination Reports does not insure that all future reports will be similarly disclosed. Id. at 586. Indeed, honorable and ethical employees who see their conduct and advice in a favorable light will not mind airing those insights or facts publicly:Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 15 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 15 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 12 The probability that an agency employee will be inhibited from freely advising a decision-maker for fear that his advice, if adopted, will become public is slight. First, when adopted, the reasoning becomes that of the agency and becomes its responsibility to defend. National Labor Relations Board, 421 U.S. at 161.III.Thedeliberativeprocessprivilegedoesnotassistdefendanttothe categorical extent sought. A.The privilege is rooted in narrow origins.While the deliberative process privilege has its roots in the English crown privilege and more recently in the executive privilege, courts have restricted its application and distinguished its applicability from those historical cousins. The first major separation from related privileges came in Kaiser Aluminum & Chemical Corporation v. U.S., 157 F.Supp. 940 (C.C. 1958), where the Court examined the General Services Administrations (GSA) claim of privilege related to certain documents surrounding a government sales contract. GSA asserted the privilege claiming that disclosure of the sought documents was contrary to the national interest because the documents contained recommendations and advice on program policy. Id. at 942, 944. Framed within the context of the GSAs refusal to produce advisory opinions related to intra-office policies, the court first examined the claims within the general context of executive privilege. The court considered the policy concerns of closing discovery administrators pre-decisional evaluations and discussions, but the court noted that this privilege was far from absolute. And importantly, the court established the necessity to consider the circumstances around the demand for this document in order to determine whether or not its production is injurious to the Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 16 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 16 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 13 consultative functions of government that the privilege of non-disclosure protects. Id. at 946. That case-specific demand permeates those cases that follow. B.The deliberative process privilege is narrowly construed.4

The deliberative process privilege is far from absolute.5 One of the first cases to recognize important limitations of this privilege was Bank of Dearborn v. Saxon, 244 F.Supp. 394 (E.D.Mich. 1965), where the court examined the attempted use of the privilege to prevent disclosure of documents related to bank relocation and expansion 4 See also First Eastern Corporation v. Mainwaring, 21 F.3d 465, 469 (D.C. Cir. 1994) ([FN5] Even if the Bank could assert a valid privilege in this case, it is not absolute, and competing interests would have to be balanced.); and In re Sealed Case, 121 F.3d 729, 751 (D.C. Cir. 1997) (The greater ease with which the deliberative process privilege can be overcome is another reason to doubt its efficacy in ensuring candid presidential advice) and In re Sealed Case, 121 F.3d at 737-738 (The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need.) 5 Notwithstanding these significant policy considerations underscoring the necessity that materials reflecting the deliberative process be protected, this exception to the general disclosure mandate of FOIA should be construed "as narrowly as consistent with efficient Government operation." EPA v. Mink, 410 U.S. 73, 87, 93 S. Ct. 827, 836, 35 L. Ed. 2d 119 (1973) (quoting from legislative analysis and discussions of Exemption 5, S.Rep.No. 813, p. 9). See also Coastal States, 617 F.2d at 862. Taxation with Representation Fund v. Internal Revenue Service, 646 F.2d 666, 667 (D.C. Cir. 1981); see also Morley v. Central Intelligence Agency, 508 F.3d 1108, 1114-1115 (D.C. Cir. 2007), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984). (Under FOIA, exemptions from disclosure must be narrowly construed, id. at 823, and 'conclusory and generalized allegations of exemptions' are unacceptable,) citing Founding Church of Scientology of Wash., D.C., Inc. v. Nat'l Sec. Agency, 197 U.S. App. D.C. 305, 610 F.2d 824, 830 (D.C. Cir. 1979) (quoting Vaughn, 484 F.2d at 826). Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 17 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 17 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 14 in light of then existing banking law restrictions on such activities. When denying application of the claimed privilege, the court emphasized the importance of the narrow construction of the privilege: Privilege, of course, is a doctrine of concealment. It means that materials relevant to the issue in court are, for some reason paramount to the administration of justice, to be hidden from disclosure. It is not to be construed beyond its necessary application. Id. at 401.Further, the court recognized the fact-determinative nature of the privilege:This question cannot be resolved in the abstract. The merits of the particular matter before the court must be considered, the necessity of disclosure weighed against the need for privacy in the light of the circumstances disclosed. Here we have a claim of subterfuge, of sham, of the use of devices bordering on fraud whereby, it is alleged, the Comptroller's office sought to cloak an illegal act in the habiliments of legal propriety and good faith.Id. at 402. The court also weighed the competing public interests: If there were a new weapon of national defense here, the details of which were sought, if private advices to one of our ambassadors were to be revealed, or if an informant were to be named to the press and public, the public interest in non-disclosure would be clear, as against we would be required to weigh the private interest asserted. But at the time this formal claim of privilege was made in this matter a prima facie case of sham and subterfuge had been made out. It would seem that the real public interest under such circumstances is not the agency's interest in its administration but the citizen's interest in due process. Id. at 402.The relevance of the documents sought is a crucial part of the analysis: The information in the reports is relevant to numerous issues in the litigation; the litigant's claim of need is concrete, not abstract. Ernst & Ernst, the auditors of FNB, for example, urge that access to the examiner's evaluation of FNB's financial condition will assist in defending the actions against them for negligently conducting their audits. Where the examiner's investigation paralleled that of Ernst Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 18 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 18 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 15 & Ernst, the comments in the confidential section will constitute critical evidence. In re Franklin National Bank Securities Litigation, 478 F. Supp. at 586-587.The Eastern District of New York considered a case in which government officials attempted to shield from disclosure documents that potentially contained information about their own wrongdoing. There too the court noted the importance of a fact-intensive inquiry by the court for each particular case: The official information privilege is a qualified privilege; it is not absolute. The privilege is a discretionary one that depends upon ad hoc considerations of competing policy claims. In re Franklin National Bank Securities Litigation, 478 F.Supp. at 582 (citations omitted). Foremost among those competing interests was accurate judicial fact finding and the citizens interests of due process. Id. This case was one of the first where the court recognized the inapplicability of the privilege when government malfeasance is involved:Government documents are protected from discovery so that the public will benefit from more effective government; when the public's interest in effective government would be furthered by disclosure, the justification for the privilege is attenuated. Thus, for example, where the documents sought may shed light on alleged government malfeasance, the privilege is denied. Id. at 582 (citing Bank of Dearborn v. Saxon, 244 F.Supp. 394, 401-03 (E.D.Mich.1965), aff'd., 377 F.2d 496 (6th Cir. 1967)). The court discussed its examination of the particular documents at issue, emphasizing the case-specific approach: [The privilege] requires a fresh balancing of the competing interests in each case where the privilege is asserted. Id. at 586. The court found in favor of disclosure, recognizing the concrete need and the lack of alternate sources for the information: Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 19 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 19 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 16 Even were the government's case for shielding its documents more persuasive, the interests of the litigants and the public in disclosure are much more compelling. Id.IV.The governments characterization of the deliberative process privilege misapprehends it. A.Decisions are intended to be limited to formal proceedings or policy deliberations. The Special Master is clearly expert in matters of privilege.While respecting the reasoning of the Special Master in McPeek, plaintiff submits that application of the deliberative process privilege to all actions of an agency, including disciplining its own employees, gives an imbalanced advantage to the government as compared to private litigants whose documents on the same topic would be discoverable.Moreover, plaintiff submits that the National Labor Relations Board decision and others actually intend for expansions of the privilege beyond regulation- and policy-generation to be limited and formal:Accordingly, the courts have recognized little public interest in the disclosure of "reasons supporting a policy which an agency has rejected, or reasons which might have supplied, but did not supply, the basis for a policy which was actually adopted on a different ground." Sears, 421 U.S. at 152, 95 S. Ct. at 1517. However, the courts have recognized a strong public interest in the disclosure of reasons that do supply the basis for an agency policy actually adopted. Taxation with Representation Fund v. Internal Revenue Service, 646 F.2d 666, 667-678 (D.C. Cir. 1981).Indeed, the NLRB decision dealt with very formal apparatus of decision-making, and not internal logistics of personnel matters: Crucial to the decision of this case is an understanding of the function of the documents in issue in the context of the administrative process which generated them. [.]Under Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 20 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 20 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 17 1 et seq. of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, 61 Stat. 136, 29 U.S.C. 151 et seq., the process of adjudicating unfair labor practice cases begins with the filing by a private party of a "charge," 3 (d) and 10 (b), 29 U.S.C. 153 (d) and 160 (b); 29 CFR 101.2 (1974); (citations omitted). Although Congress has designated the Board as the principal body which adjudicates the unfair labor practice case based on such charge, 29 U.S.C. 160, the Board may adjudicate only upon the filing of a "complaint"; [] National Labor Relations Board et al. v. Sears, Roebuck & Co., 421 U.S. at 138.The decisions of which the NLRB decision speaks are administrative law decisions, not logistical or personnel decisions:The appeals process affords the General Counsel's Office in Washington some opportunity to formulate a coherent policy, and to achieve some measure of uniformity, in enforcing the labor laws. National Labor Relations Board, 421 U.S. at 142.The focus in defining the deliberative process privilege was on policy formulation, not logistical and personnel discipline:Exemption 5, properly construed, calls for "disclosure of all 'opinions and interpretations' which embody the agency's effective law and policy, and the withholding of all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be." Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761, 797 (1967); Note, Freedom of Information Act and the Exemption for Intra-Agency Memoranda, 86 Harv. L. Rev. 1047 (1973). National Labor Relations Board, 421 U.S. at 153. B.Personal interests of particular employees in avoiding disclosure of information do not qualify for the privilege.Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 21 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 21 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 18 Personnel decisions are presumptively excluded from the types of decisions protected by the deliberative process privilege.As the Court of Federal Claims in Kaiser Aluminum articulated the deliberative process privilege: The fact that the author is dead is immaterial here. It is not a privilege to protect the official but one to protect free discussion of prospective operations and policy. Kaiser Aluminum & Chemical Corporation v. United States, 157 F. Supp. 939, 947 (Cl. Ct. 1958). Apart from the privileges inapplicability to mere agency operational matters, the privilege does not protect the communications of parties who are advocating for their own self-interests.Department of the Interior and Bureau of Indian Affairs v. Klamath Water Users Protective Association, 532 U.S. 1, 2-3 (2001).The expression of self-interests takes the communication out of the deliberative process privilege: As mentioned already, consultants whose communications have typically been held exempt have not been communicating with the Government in their own interest or on behalf of any person or group whose interests might be affected by the Government action addressed by the consultant. In that regard, consultants may be enough like the agency's own personnel to justify calling their communications "intra-agency." The Tribes, on the contrary, necessarily communicate with the Bureau with their own, albeit entirely legitimate, interests in mind. While this fact alone distinguishes tribal communications from the consultants' examples recognized by several Courts of Appeals, the distinction is even sharper, in that the Tribes are self-advocates at the expense of others seeking benefits inadequate to satisfy everyone. Department of the Interior and Bureau of Indian Affairs, 532 U.S. at 12. Interviews with DOJ personnel accused of wrongdoing fit into this same mold of self-interested communications having no relationship to the generation of policy or formal decision or rule-making.The privilege is unavailable to shield those documents.Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 22 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 22 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 19 C.The misconduct exception to the privilege extends beyond misconduct in the deliberative process itself, to any documents shedding light on government misconduct relevant to the underlying proceeding prompting the document request. Contrary to defendants claim, the misconduct exception is not so limited as to allow only those instances of misconduct core to the deliberation to escape disclosure. There is in addition, in some circumstances, a public interest in opening for scrutiny the government's decision making process. [.] Government documents are protected from discovery so that the public will benefit from more effective government; when the public's interest in effective government would be furthered by disclosure, the justification for the privilege is attenuated. Thus, for example, where the documents sought may shed light on alleged government malfeasance, the privilege is denied. In re Franklin National Bank Securities Litigation, 478 F. Supp. at 582.The D.C. Circuit follows this rule: the privilege disappears altogether when there is any reason to believe government misconduct occurred. In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997). Here DOJ is the defendant, and OPR is its subsidiary.A defendant cannot protect documentation of misconduct with the deliberative process privilege:But at the time this formal claim of privilege was made in this matter a prima facie case of sham and subterfuge had been made out. It would seem that the real public interest under such circumstances is not the agency's interest in its administration but the citizen's interest in due process. Indeed it might be said with considerable force that the issue before us, a charge of sham and subterfuge employed by those in high places, is the very kind of issue with respect to which an aggrieved administrator might well insist that his entire file in the matter under scrutiny (save for what might properly be called business secrets) be spread on the public record so that the falsity of the charge might be made manifest of all who cared to read. Bank of Dearborn v. Saxon, 244 F. Supp. 394, 402 (E.D. Mich. 1965). Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 23 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 23 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 20 Jay Dobyns has made sufficiently clear and supported allegations to overcome the privilege and receive the sought after, relevant documents: The authorities do not support the application of the privilege claimed to the facts before us. This is not the frivolous claim of an idle mischief maker. This is a citizen who has presented sufficient facts to warrant searching inquiry. There is no doubt that official records have a degree of sanctity, but it is not absolute. Bank of Dearborn v. Saxon, 244 F. Supp. 394, 402-403 (E.D. MI. 1965).6Reconciling the publics interest in fair and honest governance and plaintiff Dobyns need for OPRs and Civil Divisions documents on the one hand, with the Justice Departments desire to keep evidence relating to allegations of attorney misconduct secret, on the other, weigh in favor of disclosure of those documents to plaintiff Dobyns: [W]here there is reason to believe the documents sought may shed light on government misconduct, the privilege is routinely denied, on the grounds that shielding internal government deliberations in this context does not serve the public's interest in honest, effective government." (citations omitted) Hinckley v. United States, 140 F.3d 277, 285 (D.C. Cir. 1998) 6 See Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 154, 164 (D.D.C. 1999) (party seeking to overcome deliberative process privilege with a showing of government misconduct must provide an adequate factual basis for the belief.) And see Chaplaincy of Full Gospel Churches v. Johnson, CV No. 99-2945, p. 5 (D.D.C. 2003) (Memorandum Opinion) (When there is any reason to believe that government misconduct has occurred, however, our court of appeals has made clear that the deliberative-process privilege disappears altogether.); and at 5 (To invoke the government-misconduct exception, the party seeking discovery must provide an adequate factual basis for believing that the requested discovery would shed light upon government misconduct.) Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 24 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 24 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 21 CONCLUSION Fortheforegoingreasons,plaintiffJayAnthonyDobynsrespectfullyrequests thattheSpecialMasterorderdefendantUnitedStatesandtheJusticeDepartmentto producetheOfficeofProfessionalResponsibilityfileandthecurrenttrialcounsel documentsrelatingtowitnessinterviewsandotherevidenceofcrimesorfraud, including theinterviews ofattorneys accused of misconduct, alongwiththe remaining declarations required by the Special Masters April 13, 2015 Order.RESPECTFULLY SUBMITTED this 11th day of June, 2015. /s/ James B. Reed James B. Reed BAIRD WILLIAMS & GREER, LLP 6225 North 24th Street, Suite 125 Phoenix, Arizona 85016 Telephone:(602) 445-7720Attorneys for Jay A. Dobyns Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 25 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 25 of 26CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER 22 CERTIFICATE OF ELECTRONIC SERVICE The undersigned hereby certifies that on June 11, 2015, a copy of the foregoing Plaintiff Jay Anthony Dobyns Reply Memorandum re Compliance and Applicability of PrivilegesandExceptionsReSpecialMastersApril13,2015Orderwasservedon counselforDefendantelectronically,toRobertKirschman,CivilDivision,Commercial LitigationBranch,UnitedStatesDepartmentofJustice,1100LSt.NW,Washington DC20005. /s/ James B. Reed James B. Reed Case 1:08-cv-00700-FMA Document 401 *SEALED*Filed 06/11/15 Page 26 of 26 Case 1:08-cv-00700-PEC Document 442 Filed 08/12/15 Page 26 of 26