American Oversight v. U.S. Dep't of Just., No. 21-1266 (2d Cir. 2022)
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Plaintiff filed a Freedom of Information Act (“FOIA”) lawsuit seeking to compel Defendants to produce notes and memoranda memorializing interviews conducted by federal prosecutors and law enforcement agents in the course of a criminal investigation. On the parties’ cross-motions for summary judgment, the district court ruled in favor of Defendants, holding that the documents at issue were attorney work product, shielded from production by FOIA Exemption 5.
Plaintiff argues that the district court erred in holding that the requested documents are “attorney work product” shielded from production by FOIA Exemption 5. The Second Circuit affirmed holding that Plaintiff misperceives both the work-product privilege and what constitutes waiver by disclosure in the circumstances of this case. The court explained that Defendants have carried their burden to show that memoranda and notes created by prosecutors and agents in memorializing interviews they conducted during a criminal investigation are attorney work product shielded from ordinary civil discovery by Fed. R. Civ. P. 26 and, therefore, from production under FOIA Exemption 5. Further, the court wrote that Plaintiff has failed to show that Defendants waived this protection by disclosing to investigation “targets” and “subjects” during their interviews the contents of these yet-to-be-created documents.
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