Case Detail

FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that the Department of Justice's Federal Criminal Discovery Manual is entirely protected by Exemption 5 (attorney work-product privilege). The National Association of Criminal Defense Lawyers requested the manual, referred to as the Blue Book, from the Executive Office for U.S. Attorneys. EOUSA withheld the manual under Exemption 5 and Exemption 7(E) (investigative methods and techniques). NACDL appealed and OIP affirmed the denial on the basis of Exemption 5 only. NACDL contended that the manual contained only statements of agency policy and general guidelines regarding prosecutors' disclosure obligations. DOJ, on the other hand, claimed the manual contained legal advice, strategies, and arguments for defeating discovery claims. After an in camera review, Kollar-Kotelly agreed with the government that the manual had been prepared in anticipation of litigation and was protected by the attorney work-product privilege. She pointed out that "the Blue Book provides background information and instructions on discovery practices and advice, strategy, and defense for litigation related to the government's discovery obligations to attorneys who will be required to litigate on the government's behalf." She observed that "the Blue Book directly relates to conduct in the adversary trial process since it provides guidelines and strategies for government prosecutors to consider in disclosing discovery and litigation against challenges to their discovery practices. The Blue Book is entirely focused on a bedrock transaction in the adversarial trial processâ€"discovery." She explained that "although the Blue Book does contain general background information and agency policies regarding the government's discovery obligations, the Court finds that it contains sufficient advice and litigation strategy for use in actual litigation to qualify as attorney work-product, especially in light of the fact that the overarching purpose driving the contents and structure of the book was to prevent discovery violations and litigation arising from discovery transactions." Kollar-Kotelly rejected NACDL's contention that the Blue Book was required to be made public under subsection (a)(2) because it constituted the agency's working law. NACDL backed this claim by pointing out that DOJ intended the Blue Book to be a substitute for congressional legislation. Kollar-Kotelly noted that "simply because the DOJ decided to police discovery obligations internally instead of through passage of federal legislation does not transfer the agency's internal policing manual into agency working law. Second, even of the Blue Book contains the DOJ's working law, which, pursuant to § 552(a)(2), must proactively be disclosed, FOIA 'expressly states. . .that the disclosure obligation "does not apply" to those documents described in the nine enumerated exempted categories listed in § 552(b),' which includes Exemption 5."
Issues: Exemption 5 - Privileges - Attorney work-product privilege compiled in anticipation of litigation

Date Filed	Doc #	Docket Text
2014-02-21	1	COMPLAINT of NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS against EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-3629293) filed by NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Civil Cover Sheet, # 7 Summons to United States Attorney General, # 8 Summons to United States Department of Justice, # 9 Summons to Executive Office for United States Attorneys, # 10 Summons United States Attorney for the District of Columbia)(Ruttenberg, Kerri) (Entered: 02/21/2014)
2014-02-21	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS (Ruttenberg, Kerri) (Entered: 02/21/2014)
2014-02-21		Case Assigned to Judge Colleen Kollar-Kotelly. (sth, ) (Entered: 02/21/2014)
2014-02-21	3	ELECTRONIC SUMMONS (4) Issued as to EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(sth, ) (Entered: 02/21/2014)
2014-02-24	4	ORDER Establishing Procedures for Filing for Cases Assigned to Judge Colleen Kollar-Kotelly, signed on February 24, 2014. (SM) (Entered: 02/24/2014)
2014-03-07	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/4/2014. Answer due for ALL FEDERAL DEFENDANTS by 4/3/2014. (Attachments: # 1 Declaration of Lindsay Reimschussel)(Ruttenberg, Kerri) (Entered: 03/07/2014)
2014-03-07	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 3/4/2014. (Attachments: # 1 Declaration of Lindsay Reimschussel)(Ruttenberg, Kerri) (Entered: 03/07/2014)
2014-03-07	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS served on 3/4/2014; UNITED STATES DEPARTMENT OF JUSTICE served on 3/4/2014 (Attachments: # 1 Declaration of Lindsay Reimschussel)(Ruttenberg, Kerri) (Entered: 03/07/2014)
2014-04-03	8	ANSWER to Complaint by EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE.(Bladuell, Hector) (Entered: 04/03/2014)
2014-04-04	9	ORDER. The parties shall confer and propose a briefing schedule for proceeding in this matter, as well as a schedule for filing a Vaughn index. The parties shall file the schedule not later than May 4, 2014. Signed by Judge Colleen Kollar-Kotelly on 4/4/2014. (lcckk3) (Entered: 04/04/2014)
2014-04-04		Set/Reset Deadlines: Parties shall file a schedule by 5/4/2014. (dot ) (Entered: 04/08/2014)
2014-05-02	10	Joint MOTION for Briefing Schedule by EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE (Bladuell, Hector) (Entered: 05/02/2014)
2014-05-05	11	ORDER. Defendants shall file their Motion for Summary Judgment and Vaughn Index by no later than June 11, 2014; Plaintiff shall file its Opposition to Defendants' Motion for Summary Judgment and its Cross-Motion for Summary Judgment by no later than July 23, 2014; Defendants shall file their Reply to Plaintiff's Opposition to Defendants' Motion for Summary Judgment and their Opposition to Plaintiff's Cross-Motion for Summary Judgment by no later than August 13, 2014; Following the filing of Defendants' Opposition to Plaintiff's Cross-Motion for Summary Judgment, the Court will determine whether it is necessary for Plaintiff to file a Reply in support of its Cross-Motion for Summary Judgment. Signed by Judge Colleen Kollar-Kotelly on 5/5/2014. (lcckk3) (Entered: 05/05/2014)
2014-05-05		Set/Reset Deadlines: Plaintiff's Cross Motion due by 7/23/2014. Response to Cross Motions due by 8/13/2014. Defendants' Summary Judgment motion due by 6/11/2014. Response to Motion for Summary Judgment due by 7/23/2014. Reply to Motion for Summary Judgment due by 8/13/2014. Vaughn Index due by 6/11/2014. (dot ) (Entered: 05/06/2014)
2014-06-11	12	Vaughn Index . (Bladuell, Hector) (Entered: 06/11/2014)
2014-06-11	13	MOTION for Summary Judgment by EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Exhibit Ex. 1 Gerson Declaration, # 3 Exhibit Ex. 2 Goldsmith Declaration, # 4 Statement of Facts, # 5 Text of Proposed Order)(Bladuell, Hector) (Entered: 06/11/2014)
2014-06-23	14	NOTICE of Appearance by John Russell Tyler on behalf of All Defendants (Tyler, John) (Entered: 06/23/2014)
2014-07-23	15	Memorandum in opposition to re 13 MOTION for Summary Judgment filed by NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS. (Attachments: # 1 Declaration of K. Ruttenberg, # 2 Statement of Facts)(Ruttenberg, Kerri) (Entered: 07/23/2014)
2014-07-23	16	Cross MOTION for Summary Judgment by NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS (Attachments: # 1 Memorandum in Support, # 2 Declaration of K. Ruttenberg, # 3 Statement of Facts, # 4 Text of Proposed Order)(Ruttenberg, Kerri) (Entered: 07/23/2014)
2014-07-28	17	Unopposed MOTION for Extension of Time to File Response/Reply in support of Defendants' Motion for Summary Judgment by EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bladuell, Hector) (Entered: 07/28/2014)
2014-07-28	18	ORDER granting 17 Motion for Extension of Time to File Response/Reply. Defendants must file their Reply in support of their Motion for Summary Judgment and their Opposition to Plaintiff's Cross-Motion for Summary Judgment by 9/2/2014. Signed by Judge Colleen Kollar-Kotelly on 7/28/14. (dot ) (Entered: 07/28/2014)
2014-08-21	19	NOTICE OF SUPPLEMENTAL AUTHORITY by NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Ruttenberg, Kerri) (Entered: 08/21/2014)
2014-09-02	20	REPLY to opposition to motion re 16 Cross MOTION for Summary Judgment , 13 MOTION for Summary Judgment filed by EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit Second Goldsmith Declaration, # 2 Statement of Facts Opposition to Plaintiff's Statement of Facts, # 3 Text of Proposed Order, # 4 Certificate of Service)(Bladuell, Hector) (Entered: 09/02/2014)
2014-09-02	21	Memorandum in opposition to re 16 Cross MOTION for Summary Judgment filed by EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE. (See Docket Entry 20 to view document). (znmw, ) (Entered: 09/03/2014)
2014-09-11	22	MOTION for Leave to File Plaintiff's Motion for Leave to File Reply in Support of Its Cross-Motion for Summary Judgment and Surreply In Opposition to Defendants' Motion for Summary Judgment by NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS (Ruttenberg, Kerri) (Entered: 09/11/2014)
2014-09-17	23	Memorandum in opposition to re 22 MOTION for Leave to File Plaintiff's Motion for Leave to File Reply in Support of Its Cross-Motion for Summary Judgment and Surreply In Opposition to Defendants' Motion for Summary Judgment filed by EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE. (Bladuell, Hector) (Entered: 09/17/2014)
2014-10-06		MINUTE ORDER (paperless). Upon consideration of Plaintiff's 22 Motion for Leave to File Reply in Support of its Cross-Motion for Summary Judgment, the Court hereby GRANTS Plaintiff's Motion. Plaintiff shall file a short Reply only in support of its Cross-Motion (not a surreply) by no later than October 13, 2014. Plaintiff's Reply shall not exceed ten (10) pages. Signed by Judge Colleen Kollar-Kotelly on 10/6/2014. (lcckk3) (Entered: 10/06/2014)
2014-10-06		Set/Reset Deadlines: Plaintiff's Reply to Cross Motions due by 10/13/2014. (dot ) (Entered: 10/08/2014)
2014-10-13	24	REPLY to opposition to motion re 16 Cross MOTION for Summary Judgment NACDL's Reply in Support of Cross-Motion for Summary Judgment filed by NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Ruttenberg, Kerri) (Entered: 10/13/2014)
2014-10-22		MINUTE ORDER (paperless). The Court is presently reviewing the parties' cross-motions for summary judgment. The Court understands that the parties are in disagreement about the contents of the "Federal Criminal Discovery Blue Book" and that the parties' respective characterizations of the Blue Book's contents potentially lead to different outcomes under the FOIA exemptions invoked by the Government for withholding the Blue Book's disclosure. In order to resolve this disagreement, the Court finds it is necessary to review ex parte and in camera the actual Blue Book. Accordingly, the Court hereby ORDERS the Government to contact Chambers by no later than OCTOBER 24, 2014, at 5 P.M., to discuss the best method for making the Blue Book available to the Court for ex parte in camera review. Signed by Judge Colleen Kollar-Kotelly on 10/22/2014. (lcckk3) (Entered: 10/22/2014)
2014-10-23	25	NOTICE by EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE re Order,,, (Bladuell, Hector) (Entered: 10/23/2014)
2014-10-23	26	NOTICE by EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE re 25 Notice (Other), Order,,, (Bladuell, Hector) (Entered: 10/23/2014)
2014-12-18	27	ORDER. For the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that Defendants' 13 Motion for Summary Judgment is GRANTED;IT IS FURTHER ORDERED that Plaintiff's 16 Cross-Motion for Summary Judgmentis DENIED. Accordingly, judgment is entered for Defendants. Signed by Judge Colleen Kollar-Kotelly on 12/18/2014. (lcckk3) (Entered: 12/18/2014)
2014-12-18	28	MEMORANDUM AND OPINION. Signed by Judge Colleen Kollar-Kotelly on 12/18/2014.(lcckk3) (Entered: 12/18/2014)
2015-02-12	29	NOTICE OF APPEAL TO DC CIRCUIT COURT as to 27 Order on Motion for Summary Judgment,,, by NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS. Filing fee $ 505, receipt number 0090-3991636. Fee Status: Fee Paid. Parties have been notified. (Ruttenberg, Kerri) (Entered: 02/12/2015)
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