Hunton & Williams v. United States Department of Justice

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

HUNTON & WILLIAMS, 
Plaintiff-Appellant,
v.
 No. 08-1635
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, Chief District Judge.
(3:06-cv-00477-JRS)

Argued: September 22, 2009

Decided: January 4, 2010

Before WILKINSON and MICHAEL, Circuit Judges, and
Irene M. KEELEY, United States District Judge
for the Northern District of West Virginia,
sitting by designation.

Affirmed in part, vacated and remanded in part by published
opinion. Judge Wilkinson wrote the majority opinion, in
which Judge Keeley joined. Judge Michael wrote a dissenting
opinion.
2 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
COUNSEL

ARGUED: Edward Peter Noonan, HUNTON & WILLIAMS,
LLP, Richmond, Virginia, for Appellant. Robert P. McIntosh,
OFFICE OF THE UNITED STATES ATTORNEY, Rich-
mond, Virginia, for Appellee. ON BRIEF: John Jay Range,
HUNTON & WILLIAMS, LLP, Washington, D.C., for
Appellant. Dana J. Boente, Acting United States Attorney,
Richmond, Virginia, for Appellee.

OPINION

WILKINSON, Circuit Judge:

This appeal centers on communications between the U.S.
Department of Justice ("DOJ") and a telecommunications
company, in which the company allegedly lobbied DOJ to
take its side in litigation with a client of law firm Hunton and
Williams, LLC ("Hunton"). The district court upheld DOJ’s
decision to deny Hunton’s request under the Freedom of
Information Act, 5 U.S.C. § 552 (2006), ("FOIA") for records
of those communications. Hunton contends that it is entitled
to the records, regardless of whether they satisfied the require-
ments of the so-called common interest doctrine, which
enables parties with a shared legal interest to pursue a joint
legal strategy. DOJ argues not only that common interest
communications are exempt from FOIA, but that we should
defer to the agency’s invocation of the common interest doc-
trine without demanding any serious inquiry into the validity
of its common interest claims.

Both sides have a point, though only a partial one. DOJ
argues persuasively that FOIA does not strip the government
of its civil discovery privileges or its valuable right to partner
with other parties in litigation or in anticipation of the same.
At the same time, however, Hunton correctly contends that
 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 3
common interest assertions by government agencies must be
carefully scrutinized. For the doctrine to apply, an agency
must show that it had agreed to help another party prevail on
its legal claims at the time of the communications at issue
because doing so was in the public interest. It is not enough
that the agency was simply considering whether to become
involved.

I.

A.

This FOIA action grows out of an earlier patent suit
brought by New Technology Products, Inc., ("NTP"), a client
of Hunton’s, against Research in Motion, Ltd., ("RIM"), man-
ufacturer of BlackBerry communications devices. In August
2003, following an earlier jury finding that RIM had infringed
various patents held by NTP, the district court in the Black-
Berry litigation entered an order enjoining RIM’s use of the
patented technology. Enforcement of the injunction was
stayed, however, pending RIM’s appeal, which ultimately
resulted in partial affirmation and a remand to the district
court. NTP, Inc. v. Research In Motion, Ltd., 418 F.3d 1282,
1326 (Fed. Cir. 2005). District court proceedings did not
resume until October 2005. Shortly after the jury reached its
verdict, proceedings to reexamine NTP’s patents were initi-
ated before the United States Patent and Trademark Office
(PTO).

While RIM’s appeal in the BlackBerry litigation was pend-
ing, RIM began contacting officials from various executive
branch departments to express its concern about the injunc-
tion. On March 10, 2005, several DOJ attorneys, including
John Fargo, Director of the Intellectual Property Staff in the
Commercial Litigation Branch of DOJ’s Civil Division, met
with RIM attorney Herbert Fenster. At their meeting, Fenster
expressed his opinion that RIM and the federal government
had a mutual interest in opposing the BlackBerry injunction
4 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
because the injunction would interfere with the federal gov-
ernment’s BlackBerry use. The United States government is
the largest single user of BlackBerry devices, and as a matter
of law, it cannot be subject to injunctive relief against the use
of patented technology. 35 U.S.C. § 1498(a) (2006); Trojan,
Inc. v. Shat-R-Shield, Inc., 885 F.2d 854, 856-57 (Fed. Cir.
1989). Fenster offered to furnish DOJ with information and
drafts of affidavits RIM was then in the process of obtaining
as part of its efforts to overturn the injunction. DOJ contends
that, immediately after the meeting, Fenster and Fargo orally
agreed to exchange documents on a confidential "common
interest" basis.

Fenster continued to discuss the BlackBerry litigation with
Fargo in the months that followed, supplying information,
documents, and declarations for DOJ’s use. The first time the
phrase "common interest" appeared in any written communi-
cation between RIM and DOJ was October 6, 2005, when
Fargo added the disclaimer "protected by joint and common
interest privilege" to an email reply he sent to Fenster.

On November 8, 2005, two weeks after proceedings in the
BlackBerry patent litigation resumed in district court, DOJ
filed a Statement of Interest and requested that the matter be
stayed for 90 days. It argued that the injunction contemplated
by the district court could operate as a de facto injunction
against the government’s BlackBerry use and that the govern-
ment needed more time to consider the issue. According to
Fargo, the decision to file the Statement was not made until
shortly before the actual filing. On November 10, 2005, two
days after the Statement of Interest was filed, Fargo and Fen-
ster signed a written common interest agreement on behalf of
DOJ and RIM, which stated that their common interest rela-
tionship had come into being on February 4, 2005. On Febru-
ary 1, 2006, DOJ filed a motion to intervene in the district
court proceedings, which was granted. The litigation settled
the next month.
 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 5
At some point prior to DOJ’s intervention, NTP became
concerned about communications between RIM and the PTO
in connection with the patent reexamination proceedings, and
in January 2006, counsel for NTP filed a FOIA request with
the PTO and its parent agency, the Department of Commerce,
to obtain any such communications. See Rein v. U.S. Patent
& Trademark Office, 553 F.3d 353, 362 (4th Cir. 2009). In the
wake of that request, Hunton learned of the common interest
agreement between DOJ and RIM. Shortly after the Black-
Berry litigation settled, Hunton filed a second FOIA request,
this time with DOJ, seeking records of communications
between RIM and DOJ, as well as related communications
between DOJ and other agencies such as the PTO. DOJ with-
held roughly half of the documents Hunton requested, and
Hunton challenged the withholding of those documents that
DOJ claimed were protected from disclosure by Exemption 5
of FOIA. 5 U.S.C. § 552(b)(5). Following an in camera
inspection of a substantial portion of the documents DOJ
withheld, the district court in Hunton’s DOJ FOIA suit
granted DOJ’s motion for summary judgment for all but three
of the documents at issue.

B.

The question of whether a district court properly granted
the government summary judgment in a FOIA action is one
of law, which we review de novo. Ethyl Corp. v. U.S. E.P.A.,
25 F.3d 1241, 1246 (4th Cir. 1994). Whether a document fits
within one of FOIA’s prescribed exemptions is also a matter
of law, unless the legal conclusion is based upon factual find-
ings, which we review for clear error. Id.

FOIA provides that federal agencies shall "upon request for
records which reasonably describes such records . . . make the
records promptly available to any person." 5 U.S.C.
§ 552(a)(3)(A). The Act specifies nine exemptions from its
regime of disclosure, however. 5 U.S.C. § 552(b). In general,
these exemptions are to be narrowly construed. Bowers v.
6 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
U.S. Dept. of Justice, 930 F.2d 350, 354 (4th Cir. 1991). The
burden of demonstrating that a requested document falls
under an exemption rests on the government. 5 U.S.C.
§ 552(a)(4)(B); City of Virginia Beach, Va. v. U.S. Dep’t of
Commerce, 995 F.2d 1247, 1252 (4th Cir. 1993).

Exemption 5 provides that FOIA disclosure rules do not
apply to "inter-agency or intra-agency memorandums or let-
ters 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).
"To qualify, a document must thus satisfy two conditions: its
source must be a Government agency, and it must fall within
the ambit of a privilege against discovery under judicial stan-
dards that would govern litigation against the agency that
holds it," such as the attorney-client, deliberative process, or
attorney work product privileges. Dep’t of the Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).

The district court’s finding that the documents now at issue
are of a character qualifying them for the privileges asserted
by DOJ is not challenged in this appeal. The only question we
address is whether the district court erred in finding that the
materials sought by Hunton qualify as "inter-agency or intra-
agency memorandums or letters."

II.

For more than 40 years, the Freedom of Information Act
has provided a way for the American people to keep a watch-
ful eye on their government. "The basic purpose of FOIA is
to ensure an informed citizenry, vital to the functioning of a
democratic society, needed to check against corruption and to
hold the governors accountable to the governed." N.L.R.B. v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The
Act discourages agencies from keeping in the dark actions
that might not withstand the light of day. For that reason, "dis-
closure, not secrecy, is the dominant purpose of the Act."
Klamath, 532 U.S. at 8.
 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 7
FOIA was the first in a series of laws adopted between
1966 and 1976 that were designed to bring the activities of
federal agencies out of the shadows of official secrecy. FOIA
and its sister statutes — the Federal Advisory Committee Act,
Pub. L. No. 92-463, 86 Stat. 770 (1972) (codified as amended
at 5 U.S.C. app. at 455 (2006)), and the Government in the
Sunshine Act, 5 U.S.C. § 552b (2006),—reflected a concern
about the effects of self-interested private parties on the
administration of federal law. See H.R. Rep. No. 89-1497, at
26 (1966) (federal agency’s refusal to disclose bids on a mul-
timillion dollar project concealed the fact that the lowest bid-
der had not been chosen and demonstrated the need for
FOIA). Cozy public-private relationships, selective disclo-
sures to favored parties, and ex parte lobbying of agencies by
special interests were among the practices that FOIA sought
to subject to public scrutiny. See N. Dakota ex rel. Olson v.
Andrus, 581 F.2d 177, 182 (8th Cir. 1978) ("Preferential treat-
ment of persons or interest groups fosters precisely the dis-
trust of government that the FOIA was intended to obviate.").
The danger that agencies will be captured by the beneficiaries
of public largesse or the subjects of federal regulation has not
diminished with time, and FOIA’s disclosure mandate contin-
ues to play a vital part in the supervision of federal agencies
by their ultimate principals, the American people.

Although FOIA establishes a broad policy of transparency,
its commitment to that policy is not unlimited. The Act
acknowledges that "public disclosure is not always in the pub-
lic interest." Baldrige v. Shapiro, 455 U.S. 345, 352 (1982).
FOIA’s nine specified exemptions reflect a wide array of con-
cerns, in this case Exemption 5’s recognition that any agen-
cy’s ability to discharge its duties effectively depends on the
agency’s not having to operate "in a fishbowl." Virginia
Beach, 995 F.2d at 1252 (citation omitted). In situations
where the government consults with an attorney, Exemption
5 expresses Congress’s view that the public interest is not
served by stripping government agencies of the privileges oth-
erwise available to them in litigation. FOIA was meant to fos-
8 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
ter political accountability, not to force the United States into
a uniquely disadvantaged litigation posture. Indeed, the
Supreme Court has noted that to allow a party to "obtain
through the FOIA material that is normally privileged would
create an anomaly in that the FOIA could be used to supple-
ment civil discovery. We have consistently rejected such a
construction of the FOIA." United States v. Weber Aircraft
Corp., 465 U.S. 792, 801 (1984) (citations omitted).

III.

Given the tension in FOIA between the public’s interest in
transparency, on the one hand, and in effective public admin-
istration, on the other, it is ironic both sides in this dispute
have adopted rather absolute views of the scope of Exemption
5. Hunton contends that Exemption 5 provides no protection
to communications between RIM and DOJ, regardless of their
congruent interests in the course of actual litigation. DOJ
argues that its common interest agreement should shield all of
its communications with RIM, without any serious consider-
ation of the scope and duration of the agreement. Neither
position fully reflects the balance struck in FOIA and the
cases that have interpreted it.

A.

Hunton argues that communications between RIM and DOJ
are unprotected by Exemption 5 as a matter of law because
RIM is a private party, not a part of DOJ, and those communi-
cations therefore are neither "inter-" nor "intra-agency." The
district court rejected this conclusion, reasoning that commu-
nications between a government agency and a party possess-
ing common and unitary litigation interests should be
understood as "intra-agency" for purposes of Exemption 5.
The common interest doctrine permits parties whose legal
interests coincide to share privileged materials with one
another in order to more effectively prosecute or defend their
claims. In re Grand Jury Subpoenas, 89-3 and 89-4, John
 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 9
Doe 89-129, 902 F.2d 244, 248-49 (4th Cir. 1990). Under
Hunton’s reading, however, the decision of a party, here the
government, to partner with others in the conduct of litigation
would somehow subject that party to the loss of its most basic
civil discovery privileges—namely, the attorney-client and
attorney work product privileges.

This is a sweeping view, and its impact on the govern-
ment’s ability to conduct complex and multi-faceted litigation
would be staggering. We have made clear that the government
was entitled not to favored treatment under Exemption 5, but
simply to a level playing field. "The government has the same
right to undisclosed legal advice in anticipation of litigation
as any private party. And there is nothing in FOIA that pre-
vents the government from drawing confidential counsel from
the private sector. Allowing disclosure here would impair an
agency’s ability to prepare effectively for litigation with pri-
vate parties and thereby thwart its ability to discharge its func-
tions in the public interest." Hanson v. United States Agency
for Int’l Devt., 372 F.3d 286, 294 (4th Cir. 2004). Although
Hunton argues that Hanson is inapplicable because the attor-
ney in that case was employed by a private party working
under a government contract, Hanson’s result was based upon
the presence of shared and substantial interests, not upon
some notion that a government contractor’s attorney is a gov-
ernment attorney. Id. at 292.

Nothing in the "inter-agency or intra-agency" language in
Exemption 5 demands that the government, alone among all
litigants, be stripped of civil discovery privileges when it has
done nothing more than communicate with other litigating
parties with whom it shares a singular and unitary litigation
interest. It is that convergence of interests that entitles the
government to communicate within the terms of the Exemp-
tion and to do so in a manner that does not strip it of those
deliberative privileges that other litigants enjoy and that are
widely recognized as necessary "to encourage full and frank
communication between attorneys and their clients and
10 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
thereby promote broader public interests in the observance of
law and administration of justice." Id. at 291 (citation omit-
ted). What is sometimes termed the common interest doctrine
is in this sense simply a matter of evenhandedness.

Congress’s whole purpose in drafting Exemption 5 was
thus not to have FOIA, which is of course directed only at the
government, place an agency at a serious disadvantage vis-a-
vis private parties who are free of any FOIA constraints. To
allow adverse private litigants to use FOIA to claim this sort
of tactical advantage against the government would run
counter to the Exemption’s goal. For its clear thrust is simply
to ensure that FOIA does not deprive the government of the
work-product and attorney-client protections otherwise avail-
able to it in litigation. Nat’l Labor Relations Bd. v. Sears,
Roebuck & Co., 421 U.S. 132, 149 (1975) (Exemption 5
should be read "to exempt those documents, and only those
documents, normally privileged in the civil discovery con-
text."); see also H.R. Rep. No. 89-1497, at 31 (1966) (Exemp-
tion 5 was intended to allow an agency to withhold materials
that would not be "routinely disclosed to a private party
through the discovery process in litigation with the agency.
. . .").

What the Supreme Court has termed the "Delphic" wording
of Exemption 5, Department of Justice v. Julian, 486 U.S. 1,
11 (1988), is thus clear in this respect—one side in litigation
cannot play by one set of rules and another side play by a
more privileged set of rules. If this were the case, attorneys
on one side of litigation could freely communicate, safe in the
knowledge that their work product and deliberative processes
would be privileged, while the other side would be obliged to
turn over communications of the very same nature to its
adversary. Further, in the absence of coordination, the
government—or any party whose interests align with the
government’s—might find its position strafed inadvertently
by "friendly fire." These are just a few of the problems cre-
ated when one litigant is denied privileges accorded to all oth-
 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 11
ers. FOIA does not require the government to litigate on such
distinctly disadvantageous terms.

This view is entirely consistent with the Supreme Court’s
teaching in Department of the Interior v. Klamath Water
Users Protective Ass’n, 532 U.S. 1 (2001). There the Court
held that Exemption 5 did not apply to communications
between Indian tribes and the Department of the Interior in
connection with two proceedings to determine the allocation
of water rights, one in state court and one within the Interior
Department itself. The Court held that those communications
could not be considered "inter-agency or intra-agency," since
the tribes were communicating with the federal government in
order to secure water rights for themselves. Id. at 14. That
holding did not impact the very different situation here—
namely, one where the two parties share a unitary interest in
achieving a litigative outcome and result.

Indeed, the Court’s opinion in Klamath never discussed the
common interest doctrine. Further, the common interest doc-
trine could not have applied in Klamath because the govern-
ment had not decided what its interests even were or
embarked upon a definite course of action. It was communi-
cating with the tribes to make its own assessment of their
interests and of how those interests compared with the inter-
ests of the public. Id. at 5, 14. Finally, in Klamath, the govern-
ment sought to advance the tribes’ private interests because it
had a fiduciary obligation to do so, not because it thought that
doing so was in the public interest. Id. at. 14. Klamath
addressed the case of self-interested parties attempting to per-
suade the government to adopt a particular policy, but those
concerns are no longer in play once the government is actu-
ally persuaded that the policy is in the public interest, as was
the case in Hanson.

It would eviscerate the meaning of Exemption 5 if we were
to read it to exclude communications between federal agen-
cies and their litigation partners where those communications
12 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
advance an interest that is both common and, in the govern-
ment’s considered view, critical to the public’s interest. In
Klamath, the Supreme Court recognized the general view that
it is "textually possible and . . . in accord with the purpose of
the provision" to regard as "intra-agency" materials prepared
by outside parties with whom a federal agency consults.
Klamath, 532 U.S. at 9-10 (citation omitted). Numerous
Courts of Appeals have done just that. See Stewart v. U.S.
Dept. of Interior, 554 F.3d 1236, 1245 (10th Cir. 2009); Tigue
v. U.S. Dep’t of Justice, 312 F.3d 70, 78 & n. 2 (2d Cir.
2002); Hoover v. U.S. Dep’t of Interior, 611 F.2d 1132, 1138
(5th Cir. 1980); Brockaway v. Department of the Air Force,
518 F.2d 1184, 1191 (8th Cir. 1975); Soucie v. David, 448
F.2d 1067, 1078 n.44 (D.C. Cir. 1971); see also Gov’t Land
Bank v. G.S.A., 671 F.2d 663, 665 (1st Cir. 1982).

Both before and after Klamath, the District of Columbia
Circuit has applied this "consultant corollary" doctrine to
unpaid as well as paid consultants. Klamath expressly
declined to overrule two of the cases in which it did so. Klam-
ath, 532 U.S. at 12 n.4 (citing Public Citizen, Inc. v. Depart-
ment of Justice, 111 F.3d 168 (D.C. Cir. 1997); Ryan v.
Department of Justice, 617 F.2d 781 (D.C. Cir. 1980)). After
all, there is no reason why the advice of a consultant with no
conflict of interest should be protected from disclosure if the
consultant is paid for the advice but unprotected if it is offered
for free. As the D.C. Circuit recently explained in a case
which treated as "intra-agency" the opinions of outside legal
experts who provided free advice concerning the establish-
ment of military tribunals, the consultants’ contributions were
"no less valuable or confidential for the lack of compensation
or formal contract." Nat’l Inst. of Military Justice v. United
States Dep’t of Defense, 512 F.3d 677, 684 (D.C. Cir. 2008),
cert. denied, 129 S.Ct. 775 (2008).

These cases make good sense. Such communications can
be considered "intra-agency" for the simple reason that the
outside attorney or consultant is collaborating with an agency
 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 13
in the agency’s pursuit of the public interest. This same ratio-
nale readily reaches cases in which the government partners
with another party in litigation. Because the common interest
doctrine requires the agency to determine that the public inter-
est and the litigation partner’s interest have converged, com-
munications between the agency and its partner can be
understood as "intra-agency" for purposes of Exemption 5. By
cooperating with the agency in pursuit of the agency’s own
litigation aims, the litigation partner in a limited sense
becomes a part of the enterprise that the agency is carrying
out. See Ryan, 617 F.2d at 789. The underlying idea is essen-
tially the same principle that allows us to refer to certain liti-
gants as "private attorneys general." The point is not that the
outsider attorney general stands to gain from assisting the
government—that is equally true of paid consultants, agency
employees, and for that matter, of agencies themselves. The
point is that there is no conflict of interest when it comes to
advancing the public’s interest because the outsider stands to
gain personally only if the public’s interest is vindicated.

Hunton concedes that the Exemption 5 was not meant to
destroy the common interest doctrine, but argues that the doc-
trine applies only to the issue of whether a record is privi-
leged. Since it is difficult to imagine a situation in which the
common interest doctrine would do any work once a docu-
ment qualified as "inter-" or "intra-agency," however, it seems
clear that the doctrine is relevant to the question of whether
the document qualifies as "inter-" or "intra-agency," not to the
question of whether it is privileged. The common interest doc-
trine, it bears adding, is not a privilege in its own right. In re
Grand Jury Subpoenas, 902 F.2d at 249. Merely satisfying the
requirements of the common interest doctrine without also
satisfying the requirements of a discovery privilege does not
protect documents from disclosure any more than does merely
satisfying the "inter-agency or intra-agency" requirement.

Courts interpreting the various terms used in Exemption 5
have recognized the need to take a functional approach to
14 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
ascertaining their meanings. Thus, although the prefixes
"inter-" and "intra-" may suggest that a document be transmit-
ted from one person to another, "common sense" dictates that
Exemption 5 reaches handwritten notes kept in a file. Conoco
Inc. v. United States Dept. of Justice, 687 F.2d 724, 728 (3rd
Cir. 1982). Likewise, although Exemption 5 addresses itself
only to "letters and memorandums," the privileges Congress
sought to preserve would be gutted if FOIA could be used to
reach items like draft pleadings, litigation exhibits, and data
on government computers. See Chilivis v. S.E.C., 673 F.2d
1205, 1212 n.15 (11th Cir. 1982) ("In adopting exemption 5,
Congress clearly intended to exempt any document connected
with the agency’s deliberative process, not just memoranda
and letters."). To adopt Hunton’s view in its entirety would
send us in an opposite, doctrinaire direction. We would be
required to hold that never, under any circumstances, could
the United States claim the most basic civil discovery privi-
leges when partnering with another party in litigation. To say
that view invites havoc is to understate the matter. We think
the more sensible course is to ask whether a common and sin-
gular public-private interest is present, not to invalidate the
proper assertion of civil discovery privileges wholesale.

B.

1.

The foregoing discussion demonstrates the applicability of
Exemption 5 to DOJ’s filing of its Statement of Interest with
the district court and its signing of the formal common inter-
est agreement with RIM, both of which occurred in early
November 2005. The written agreement explains the parties’
shared interest in limiting the scope of any injunction in the
BlackBerry litigation and clearly manifests an agreement to
work together toward that end. The agreement stated that the
United States government is the single largest user of Black-
Berry technology, and that "[t]he continued ability to employ
those BlackBerry systems and devices is considered of suffi-
 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 15
cient importance to the U.S. as to make necessary the pursuit
of this subject through a common interest agreement." The
agreement defined the scope of the parties’ common interests
clearly, providing, for example, a means to terminate the
agreement if the parties came to believe that their interests
had diverged. DOJ’s decision to intervene in the litigation in
February 2006 provides further evidence that it had commit-
ted to taking RIM’s side.

The Statement of Interest confirms the veracity of the gov-
ernment’s interest in the BlackBerry litigation and explains
that interest in greater detail. In its Statement, DOJ asserted
that the injunction originally entered by the district court
"would amount to a de facto injunction against the govern-
ment’s use of Blackberries" because it would "literally pro-
hibit RIM from providing the services that would be essential
for the federal government, as well as state and local govern-
ments, to continue their use of the BlackBerry devices." Even
if the government’s use were not directly enjoined, there was
a serious risk that the government’s internal communications,
as well as its communications with those whom it needed to
be able to contact via BlackBerry, would be disrupted by an
injunction against RIM.

Nor could the problem be fixed merely by pointing out the
need to protect governmental BlackBerry use. The Statement
explained that "there does not appear to be a simple manner"
by which to segregate government BlackBerry users from
other users. Over several pages, DOJ set forth the technical
complexities that fashioning appropriate injunctive relief
against RIM would involve. For one thing, it simply would
not be possible to distinguish separate communications on an
email-by-email basis. The best that could be hoped for was to
create a list of approved BlackBerry users who would be
given an across-the-board exemption from any injunction,
regardless of whether their communications were being made
in their official capacities. Even then, the government would
be required to carry out "a time-consuming inventory of every
16 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
agency within the federal government" and to create and
maintain a database of BlackBerry information that would
only become "more complicated and prone to error" when due
allowance was made for outside users—such as state and
local governments, government contractors, and non-
governmental organizations like the American Red Cross—
whose ability to communicate with the federal government
was essential to the federal government’s BlackBerry use.
Ensuring that "the federal government’s communications,
which include a raft of time-sensitive official communica-
tions, are not disrupted by any injunction" would be difficult
at best. The task would be Herculean, if not impossible. In
short, the Statement makes it abundantly clear that, in partner-
ing with RIM, DOJ was asserting a genuine public interest in
seeking to ensure that "the federal government’s right to con-
tinue its use of BlackBerry devices is not rendered a nullity."

Moreover, the record in this case suggests that concern
about a BlackBerry injunction against RIM and its impact in
turn on government operations was widespread. As Fargo
noted in his sworn statement, the government’s "ability to
send messages to, and receive messages from[,] public and
private recipients in emergency or crisis situations" was a
source of serious concern. Every member of Congress had
been issued a BlackBerry, for instance, because BlackBerry
technology permitted emergency communications when other
communications systems were inoperative. The Department
of Homeland Security had numerous contacts with Fargo,
including originally alerting Fargo of Fenster’s concerns and
making the request that prompted DOJ to file the Statement
of Interest. Federal officials also received information specifi-
cally pertaining to BlackBerry use by the Defense Depart-
ment, and in response to an interrogatory from Hunton, the
government disclosed that personnel from the Departments of
Defense and Homeland Security may have been informed of
the existence of a "recognized common interest" between
RIM and DOJ.
 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 17
Further, Fargo testified that a number of agencies had con-
tacted DOJ in order to find out what the effect of an injunc-
tion would be on their BlackBerry use, and he discussed his
communications with representatives of the Departments of
Defense, Energy, Health and Human Services, Homeland
Security, and State, the Executive Office of the President and
the Department of Commerce’s Bureau of Industry and Secur-
ity. The government also perceived that it might have a
"broad general interest in avoiding any disruption to first
responders, state and local governments, health care, and the
economy generally that might accompany an injunction."

Thus, as of November 2005, there can be no doubt that the
government had determined that it was in the public interest
for RIM to succeed in its efforts to constrain the scope of
injunctive relief entered in the BlackBerry litigation. The fed-
eral government is BlackBerry’s biggest customer, and it had
an obvious interest in avoiding the serious disruption to its
operations that an overly broad BlackBerry injunction would
entail. And the agreement between RIM and DOJ in Novem-
ber 2005 makes it clear that RIM and DOJ had committed to
working together to achieve that goal. As a result, Exemption
5 properly applies to communications made pursuant to that
agreement. It does not matter that RIM was motivated by the
commercial benefit that would accrue to it if it succeeded in
opposing the BlackBerry injunction while the government
was motivated by concern for the public interest. What mat-
ters is that there was a unity of interest in preserving a non-
disruptive pattern of governmental BlackBerry use, and RIM
and DOJ could rely on one another’s advice, secure in the
knowledge that privileged communications would remain just
that.

2.

Hunton next argues that even if a shared interest of RIM
and the government in narrowing the scope of a BlackBerry
injunction existed once the written common interest agree-
18 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
ment was executed, common interest principles should not
apply to their efforts to limit a BlackBerry injunction because
RIM and DOJ did not face an adverse party on that issue.
Hunton contends that NTP had no interest in an injunction
that was broader than what the law allowed and consistently
attempted to work with DOJ to protect the government’s
BlackBerry use.

Citing language used by the Third Circuit in Haines v. Lig-
gett Group, Inc., 975 F.2d 81, 90 (3d Cir. 1992), Hunton
asserts that an adverse party is a prerequisite for invoking the
common interest doctrine. We need not address the issue here,
however. In this case, there was ample evidence to support the
district court’s conclusion that NTP was, in fact, adverse to
DOJ and RIM when it came to the scope of injunctive relief
in the BlackBerry litigation. NTP in fact opposed DOJ’s
request for an evidentiary hearing regarding the feasibility of
a BlackBerry injunction at the time DOJ filed its Statement of
Interest, for instance, and Fargo testified in his deposition that
he "did regard [NTP] as an adverse party." NTP sent a series
of six requests for information to DOJ, which Fargo viewed
as informal requests for discovery, and NTP disagreed with
DOJ about the length of time that would be needed to phase
in an injunction. Finally, DOJ successfully argued that it
should be allowed to intervene in the BlackBerry litigation
because although NTP had conceded that an injunction should
not infringe the U.S. government’s BlackBerry rights, NTP
had "only offered the court unsupported statements asserting
the ease with which" a workable injunction could be crafted,
without specifying how this could be done.

The foregoing serves to confirm what should be obvious:
DOJ became involved in the BlackBerry litigation because it
was concerned that its interests might be infringed by an
injunctive award in NTP’s favor. NTP stood to benefit from
a broad injunction, while DOJ would likely be harmed by one.
There is every reason to suppose that their interests were in
 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 19
conflict, and the district court’s decision on this point cannot
be said to be clear error.1

IV.

A.

Although the applicability of common interest principles to
communications between RIM and DOJ from November
2005 onward has been firmly established, DOJ’s decision to
withhold materials generated between March and November
2005 presents a much closer question. DOJ urges a broad and
deferential approach to determining whether those communi-
cations are shielded by Exemption 5. The Supreme Court’s
decision in Department of the Interior v. Klamath Water
Users Protective Ass’n, 532 U.S. 1 (2001), makes clear, how-
ever, that any attempt to invoke the common interest doctrine
in order to avoid disclosure under FOIA must be more care-
fully scrutinized. In Klamath, the Court took pains to empha-
size that the words "inter-agency or intra-agency" cannot be
"drain[ed] . . . of independent vitality." Id. at 12. The govern-
ment, not Hunton, bears the burden of demonstrating that the
common interest doctrine applies to materials it has withheld,
and the elements of the common interest doctrine must there-
fore be analyzed with precision.

Klamath reaffirmed that contacts between self-interested
parties and federal agencies are not to be casually exempted
from FOIA’s scheme of disclosure. FOIA gives the public the
1
Hunton also argues that DOJ did not share RIM’s interest in preventing
the entry of a BlackBerry injunction altogether, as opposed to an interest
in ensuring that a BlackBerry injunction was properly narrowed. A fair
interpretation of a common interest agreement, however, must leave room
for the parties to debate the means by which they will secure their com-
mon end. Since defeating a BlackBerry injunction outright was one
way—and may realistically have been the only way—to protect govern-
mental BlackBerry use, discussion of this topic fell within the scope of
RIM’s and DOJ’s common interests.
20 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
right to know about the government’s communications with
an entity that is "pressing its own view of its own interest" on
the government. Id. at 14. The "dispositive point" in Klamath
was that the "apparent object of the Tribe’s communications
is a decision by an agency of the Government to support a
claim by the Tribe that is necessarily adverse to the interests
of competitors." Id. To be sure, Klamath did not foreclose all
confidential communications between federal agencies and
private parties, even self-interested ones. Other exemptions
may remain available. Indeed, in this case, Hunton has not
challenged DOJ’s invocation of Exemption 4, which protects
the exchange of confidential trade secret information. See 5
U.S.C. § 552(b)(4). But Klamath requires the government to
show that communications with a party involve something
other than self-interested lobbying before the agency can
withhold them under the Act. As the Court put it, "the intra-
agency condition excludes, at the least, communications to or
from an interested party seeking a Government benefit at the
expense of other applicants." Klamath, 532 U.S. at 1.

DOJ argues, however, that Klamath "should be confined to
its facts and holding." Appellee’s Br. at 27. The department
asserts that, unlike Klamath, this case does not entail competi-
tion for government benefits at the expense of others. This
assertion is too sweeping. It is undeniable that support from
DOJ in litigation is a very valuable benefit to confer upon a
litigant, and it is equally self-evident that such a benefit
entails a corresponding detriment to the litigant’s opponent.

In Hanson, the only question was whether a common inter-
est existed at all, not, as in this case, whether it extended as
far as the government contended. Hanson, 372 F.3d. at 292.
In this regard, the government argues we should not overturn
the district court’s conclusions concerning the scope of the
common interest doctrine unless the district court committed
clear error. But the appropriateness of the standard used by
the district court to make its determinations is a question of
law, which we review de novo. Ethyl Corp., 25 F.3d at 1246.
 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 21
The legal standard applied here was not the searching one that
Klamath requires.

In the proceedings below, the district court ruled that the
common interest doctrine applied to exempt from FOIA com-
munications between RIM and DOJ from March 2005
onward. It explained that, as of March 2005, the record con-
tained "indicia of joint strategy" between RIM and DOJ, inso-
far as DOJ and RIM "agreed to exchange declarations, other
proposed pleadings, and their views on issues relating to the
effect of any injunction on the government and the public
interest."

This analysis was flawed in two respects. First, although a
common interest agreement can be inferred where two parties
are clearly collaborating in advance of litigation, mere "indi-
cia" of joint strategy as of a particular point in time are insuf-
ficient to demonstrate that a common interest agreement has
been formed. Second, it is not clear that the particular "indi-
cia" identified by the district court pointed to an actual com-
mon interest agreement, as opposed to a mere confidentiality
agreement. Hunton contends that the parties exchanged decla-
rations, proposed pleadings, and views as part of the process
of persuading DOJ to become involved in the BlackBerry liti-
gation. That contention is entirely plausible, particularly to the
extent that the communications were initiated by RIM or
flowed primarily from RIM to DOJ. The district court gave no
indication that there was anything in the documents them-
selves that showed them to be part of a joint litigation effort,
rather than an attempt by RIM to push its arguments on the
government.

Documents exchanged before a common interest agreement
is established are not protected from disclosure. In re Grand
Jury Subpoena: Under Seal, 415 F.3d 333, 341 (4th Cir.
2005). Thus, a proper assessment of the applicability of the
common interest doctrine in this case requires a determination
of the point in time when DOJ decided that it was in the pub-
22 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
lic interest for RIM to prevail in its litigation with NTP and
agreed to partner with RIM in doing so. The danger in this
area is once again that mere lobbying efforts, as opposed to
joint litigation strategy, will be removed from FOIA’s reach.

B.

We thus turn to the record and consider those materials
exchanged between RIM and DOJ between March 2005 and
November 2005. In his affidavit, Fargo, representing DOJ,
stated that he agreed to exchange documents with Fenster,
representing RIM, on a confidential basis at the conclusion of
their March 10, 2005, meeting. Hunton questions whether any
agreement was reached, pointing to the absence of any record
of it in Fargo’s contemporaneous notes. The district court
appears not to have determined whether the parties actually
formed an agreement as of that date, noting only that there
were "indicia of joint strategy" from that point onward.

While agreement need not assume a particular form, an
agreement there must be. If RIM was simply approaching
DOJ over the prospect that there might one day be a joint liti-
gation effort, such contacts and discussions seem too prelimi-
nary to remove from disclosure under Exemption 5. The
record raises a number of questions as to whether a common
interest agreement existed as early as March 2005. First, there
is Fargo’s description of the interest DOJ shared with RIM.
In his deposition, Fargo stated that DOJ and RIM shared an
interest in communicating about the possible effects that an
injunction entered against RIM would have. According to
Fargo, RIM and DOJ agreed that "we would exchange views.
Certainly, they would provide us with views, potential sources
of information, potentially some draft declarations." This
characterization, however, comes close to an agreement to
exchange information in order to make an assessment, rather
than an agreement to undertake a joint legal strategy.

Second, Fargo stated in his deposition testimony that DOJ
did not decide to file a Statement of Interest until shortly
 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 23
before the Statement was filed on November 8, 2005. As late
as October 26, 2005, it appears that Fenster was communicat-
ing with Fargo regarding the "preparation of [a] declaration"
addressing the government’s and the public’s interest. Thus,
DOJ did not decide to become involved in the BlackBerry liti-
gation until some time after the March 10, 2005, meeting, and
there is reason to believe that Fenster was still pressing the
government to take that step as late as October 2005.

Third, the parties failed to create a written common interest
agreement until November 2005. This was the time DOJ filed
its Statement of Interest, further suggesting that the govern-
ment may not have made up its mind in the preceding period,
or at least, not as early as March 2005. Fargo was an experi-
enced attorney who knew how to create such an agreement if
it served the public interest to do so. As DOJ itself notes,
Fargo "routinely" creates common interest agreements and
reviews those created by his staff. Yet neither party made any
kind of "common interest" notation on their written communi-
cations until October 2005. In addition, while Fargo told his
supervisor that he was entering a common interest agreement
in November 2005, he told his supervisor only that he and
Fenster were exchanging materials "on a confidential basis"
prior to that time.

Finally, the record in this case presents the sort of features
that underscore the need for watchfulness where the common
interest doctrine is sought as a means to avoid FOIA’s disclo-
sure requirements. In this regard, it is significant if communi-
cations were initiated by the private party, if the bulk of the
communications came from a private party, and if there are
sparse indications that the government had come to terms
with the public interest at stake in the case. The purposes and
initiatives of the private party are especially important. In the
proceedings below, Hunton suggested that RIM used DOJ in
part as a conduit through which it could present its views to
the PTO. Because PTO reexamination proceedings were
underway, communications between the PTO and RIM were
24 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
in some instances required to be on-the-record and in others
were prohibited outright. The record in this case reveals that
DOJ forwarded draft pleadings supplied by RIM to the PTO.
DOJ maintains that it had an interest in finding out the status
of the reexamination proceedings, but it is not immediately
clear why such an inquiry would require DOJ to pass litiga-
tion materials along from RIM to the PTO. Although the dis-
trict court, after examining the DOJ-PTO communications,
found that the PTO had not disclosed details of the patent
reexaminations for DOJ to relay to RIM, that finding does not
speak to Hunton’s suggestion that RIM was seeking to influ-
ence the PTO. Hunton’s claim raises precisely the sorts of
concerns about self-interested advocacy that were so central
in Klamath—particularly since there was a similar risk in
Klamath that one agency representing private interests in liti-
gation would communicate with a sister agency that was
simultaneously adjudicating closely related claims.

In short, there are a number of items in the record suggest-
ing that DOJ may not have decided to partner with RIM in the
BlackBerry litigation much before November 2005. The fact
that DOJ later concluded it shared RIM’s interest does not
protect communications between the two before that decision
was made. An agreement to hear what RIM had to say and to
keep what it heard confidential must not be confused with a
conclusion that the public interest required taking RIM’s side.

We express no opinion on the ultimate merits of Hunton’s
objections to DOJ’s withholding of these materials. Although
we have highlighted aspects of the record that call DOJ’s
claims into some doubt, the record does not foreclose the pos-
sibility that the parties did indeed reach a common interest
understanding at some point before November 2005, which
the written agreement served only to memorialize. The com-
mon interest doctrine requires a meeting of the minds, but it
does not require that the agreement be reduced to writing or
that litigation actually have commenced. What FOIA requires
is not that the government invariably lose in disclosure dis-
 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 25
putes, but that its claims be carefully evaluated. The analysis
we set forth combines a recognition of the government’s right
to partner with those who share its legal interests with the
judicial skepticism that FOIA demands. It will be the district
court’s job on remand to address any agreement and submis-
sions of the parties under the standards we have identified.

C.

We finally thank our colleague for his thoughtful dissent,
to which a brief response is in order. The dissent asserts that
DOJ cannot invoke Exemption 5 because, notwithstanding the
joint RIM/DOJ effort to defeat the injunction, RIM was "act-
ing in its own interest." But that principle would eviscerate
the government’s discovery privileges, since anyone who
joins forces with the government in litigation will benefit if
the partnership is successful. What the dissent misses is that
where the government decides to work with a party to achieve
a legal result beneficial to both, the danger of "self-
advoca[cy] at the expense of others" subsides. Klamath, 532
U.S. at 12. Within the scope of their shared interest, the time
for advocacy has by then passed. In attempting to realize their
shared goal, each side advises the other with an eye toward
"truth and its sense of what good judgment calls for." Id. at
10. Our remand in this case requires district courts to be atten-
tive both to when a common interest is formed and to what
communications lie within the scope of that interest. By con-
trast, our dissenting colleague recognizes virtually no right on
the part of the government to share common interests at all.

Recognizing the sweeping nature of its approach, the dis-
sent intimates that the result might be different if the govern-
ment were a party in litigation and "a communication,
privileged under the common interest doctrine, between an
agency and a non-agency co-party" were at issue. But why?
The government’s co-party would still from the dissent’s per-
spective be "acting in its own interest." The communications
would still, under the dissent’s view, not be inter- or intra-
26 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
agency. The criteria announced by the dissent have no logical
stopping point short of crippling the government’s discovery
privileges. And beyond that, how is the co-party rule to be
applied, to take just a few examples, to parallel litigation, to
indemnitors who lack formal party status, to amici, to
movants whose request for leave to intervene is under advise-
ment? And further, although privileges may be asserted in liti-
gation, they often protect earlier attorney-client
communications and attorney work product because litigation
is not something that springs forth instantaneously like
Athena from Zeus’s head. The question simply cannot be
resolved by drawing formal or arbitrary lines that overlook
the actual point at which a common interest redounding to the
public benefit is formed.

Words take their meaning only in context. Exemption 5 is
brief and its phrasing is, to the Supreme Court at least, "Del-
phic." Julian, 486 U.S. at 11. This much, however, is true: the
Court has "consistently" held that FOIA is not to be used to
"supplement civil discovery" and obtain "material that is nor-
mally privileged." Weber Aircraft, 465 U.S. at 801. In short,
the government is not to be denied the right, available to
every private litigant, to seek and obtain undiscoverable legal
advice, information, and counsel, including from a common
interest partner. Yet the dissent, through an unfortunate pars-
ing of Exemption 5’s opaque wording, would hobble the gov-
ernment alone in just this fashion and deny Exemption 5 the
only meaning it could have.2
2
We agree with the dissent that the intra-agency prong of Exemption 5
cannot be collapsed into the privilege prong, see Klamath, 532 U.S. at 12,
but as we have already noted, the common interest doctrine is not itself
a privilege. It plays the same role in litigation that the intra-agency
requirement does under FOIA: it identifies those with whom materials of
a privileged nature can be shared.
 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 27
V.

FOIA and its exemptions frequently present a tension. The
Act reflects both a commitment to transparency and to admin-
istrative efficacy, to the public’s right to know and to agen-
cies’ duty to fulfill their stated missions. Here those interests
are obvious. Congress did not intend to shield from the pub-
lic’s eye the efforts of private parties to lobby an undecided
agency to expend public resources and shape agency policy in
ways beneficial to themselves. Neither did it intend, however,
to force federal agencies to surrender critical civil discovery
protections and litigate with one hand behind their backs. It
is the job of the courts, bearing in mind the government’s bur-
den, to give effect to both of the values that FOIA seeks to
advance.

For the foregoing reasons, we affirm the district court’s
conclusion that privileged communications between DOJ and
RIM subsequent to their November 2005 common interest
agreement are protected from disclosure by FOIA Exemption
5. We vacate its conclusion that a common interest relation-
ship existed between RIM and DOJ from March 2005 to
November 2005. On remand, the district court should deter-
mine the point in time when DOJ decided that the public’s
interest converged with RIM’s interest in opposing broad
injunctive relief, that it wanted RIM to prevail in its litigation,
and that it would assist RIM in doing so. The judgment is
hereby

AFFIRMED IN PART,
VACATED AND REMANDED IN PART.

MICHAEL, Circuit Judge, dissenting:

I respectfully dissent. The documents exchanged between
Research in Motion, Ltd. (RIM) and the Department of Jus-
tice (DOJ) about the BlackBerry patent infringement case
(BlackBerry litigation) brought by NTP, Inc. against RIM
28 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
were improperly withheld by DOJ under exemption 5 of the
Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(5).
This conclusion is mandated by Department of the Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001).
Klamath makes clear that RIM’s communications with DOJ
were undertaken in RIM’s own interest as a self-advocate at
the expense of its opponent, NTP. As a result, the communi-
cations did not meet exemption 5’s first condition as "intra-
agency" communications and thus could not be withheld
under exemption 5, even if RIM and DOJ shared a common
interest in the BlackBerry litigation.

I.

FOIA’s exemption 5 allows the government 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). To qual-
ify under exemption 5, "a document must thus satisfy two
conditions." Klamath, 532 U.S. at 8. First, "its source must be
a Government agency." Id. (emphasis added). Second, "it
must fall within the ambit of a privilege against discovery
under judicial standards that would govern litigation against
the agency that holds it." Id. The issue in this appeal is
whether certain communications between RIM and DOJ are
"intra-agency memorandums or letters" that DOJ could with-
hold under exemption 5.

We are bound by Klamath, the Supreme Court decision that
sets the standard for determining when exemption 5 may
extend to communications between outsiders and government
agencies. In Klamath certain Indian tribes sent government-
solicited communications to the U.S. Department of the Inte-
rior (the Department) with respect to pending water allocation
decisions to be made by the Department; and one tribe com-
municated with the Department about the scope of claims the
Department would assert on the tribe’s behalf in state-court
litigation to adjudicate certain water rights. The Department
 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 29
invoked exemption 5 to deny certain FOIA requests, made by
a group adverse to the tribes, for tribe-Department communi-
cations with respect to the water allocation proceedings. The
issue before the Court was whether the documents passing
between the tribes and the Department were "intra-agency
memorandums or letters," a condition necessary to exempt
them from disclosure.

The Court in Klamath began its analysis by emphasizing
that "neither the terms of [exemption 5, which cover ‘intra-
agency memorandums,’] nor the statutory definitions," 5
U.S.C. §§ 551(l), 552(f), "say anything about communications
with outsiders," 532 U.S. at 9. To begin with, the prefix
"intra-" means "within." Webster’s New College Dictionary
595 (3d ed. 2008). Thus, as the Court observed, "the most nat-
ural meaning of the phrase ‘intra-agency memorandum’ is a
memorandum that is addressed both to and from employees of
a single agency." 532 U.S. at 9 (quoting Dep’t of Justice v.
Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J., dissenting))
(emphasis added). The Court recognized, however, that some
courts of appeals "have held that [exemption 5] extends to
communications between Government agencies and outside
consultants hired by them." Id. at 10. It was critical, however,
that those consultants did not represent any other interest
while providing advice to an agency:

In such cases, the records submitted by outside con-
sultants played essentially the same part in an agen-
cy’s process of deliberation as documents prepared
by agency personnel might have done. . . . [T]he fact
about the consultant that is constant in the typical
cases is that the consultant does not represent an
interest of its own, or the interest of any other client,
when it advises the agency that hires it. Its only obli-
gations are to truth and its sense of what good judg-
ment calls for, and in those respects the consultant
functions just as an [agency] employee would be
expected to do.
30 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
Id. at 10-11.

After assuming, without deciding, that communications
from a disinterested consultant to an agency may qualify as
"intra-agency" under exemption 5, the Court held that the
tribal communications to the government in Klamath were not
intra-agency. According to the Court, the intra-agency condi-
tion excludes an outsider’s communication that seeks agency
action "that is necessarily adverse to the interests of [the out-
sider’s] competitors." Id. at 14. Because the tribes were
advancing their own interests, in competition with others,
their communications to the Department of the Interior with
respect to water allocation proceedings were not intra-agency
communications under exemption 5. Put differently, the
tribes, though labeled as consultants by the agency, were sim-
ply not "enough like the agency’s own personnel to justify
calling their communications ‘intra-agency.’" Id. at 12.

Under Klamath the documents passing between RIM and
DOJ were not intra-agency. In communicating with DOJ with
respect to the BlackBerry litigation, RIM was acting in its
own interest as a self-advocate at the expense of its opponent
and competitor, NTP. RIM was in a tight spot when it began
lobbying DOJ in March 2005 to intervene on RIM’s side in
the BlackBerry litigation. RIM faced a district court judgment
that, among other things, (1) determined that RIM’s Black-
Berry system had infringed NTP’s patents and (2) enjoined
RIM from further infringement. Although the broad injunc-
tion was stayed pending appeal, the Federal Circuit, in affirm-
ing the district court in part, cleared the way for the
reinstatement of the injunction on remand.

The prospect of an injunction prompted RIM in January
2005 to retain Herbert Fenster, a Washington, D.C., lawyer,
for the purpose of lobbying the government to oppose any
injunction, or to argue for a limited one, in the BlackBerry lit-
igation. Fenster understood that the government could not be
enjoined from use of the BlackBerry system, but he argued to
 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 31
DOJ that it should oppose an injunction altogether because
the government-related BlackBerry "uses that could be
[exempted] from an injunction were so inextricably inter-
twined with non-government related uses that there would be
no practical way to separate them." J.A. 57. Fenster also
urged DOJ to oppose any injunction because the public
interest—not just the government’s operational interests—
would be impaired by a broad injunction that prohibited com-
mercial use of the BlackBerry system. Fenster continued to
press DOJ to argue for no injunction even after RIM and DOJ
entered into the November 10, 2005, common interest agree-
ment, a document confirming that the government’s declared
interest was limited to requesting the court to fashion an
injunction that would not interfere with the government’s use
of the BlackBerry system.

Fenster’s communications to DOJ on behalf of RIM had
the same characteristics and objectives that led the Supreme
Court in Klamath to reject the argument that the tribes’ com-
munications with the government in that case were intra-
agency. Fenster was a "self-advocate[]" pressing RIM’s view
"at the expense of [NTP]" in urging DOJ to take "position[s]
necessarily adverse to [NTP]." Klamath, 532 U.S. at 12-13. In
other words, the "object of [Fenster’s] communications" was
a series of DOJ decisions that would "necessarily [be] adverse
to the interests of [a] competitor[]," NTP. Id. at 14. Finally,
Fenster was not like a "consultant [who] functions just as an
[agency] employee would be expected to do." Id. at 11. That
is, although his entreaties to DOJ on behalf of RIM were
legitimate, he was not like the consultant whose "only obliga-
tions are to truth and its sense of what good judgment calls
for." Id. at 11 (emphasis added). Klamath affords us no lee-
way. The Fenster-DOJ communications do not qualify as
intra-agency.

The majority argues that when an outsider and the govern-
ment have a unitary interest that fits within the common inter-
est doctrine, communications between the outsider and the
32 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
agency can be understood as "intra-agency" under exemption
5. The common interest doctrine, however, relates only to the
second condition of exemption 5, that is, the communication
"must fall within the ambit of a privilege against discovery."
Klamath, 532 U.S. at 8. Satisfaction of the second condition
cannot serve as automatic satisfaction of the first condition.
As the Supreme Court emphasized in Klamath, there is "no
textual justification for draining the first [intra-agency] condi-
tion of independent vitality," id. at 12, and "the first condition
of Exemption 5 is no less important than the second," id. at
9. Failure to satisfy the first (intra-agency) condition "rules
out any application of Exemption 5" to a communication that
would otherwise be privileged against discovery. Id. at 12.

As I have already discussed, Fenster was not functioning
intra-agency when he urged DOJ to argue against an injunc-
tion, or in favor of one substantially reduced in scope, in the
BlackBerry litigation. This conclusion, of course, means that
the government cannot communicate in secret with an out-
sider who might have useful advice, but who cannot be
regarded as acting intra-agency. In Klamath the Court recog-
nized, and accepted, this very outcome as mandated by Con-
gress in FOIA. The Court agreed with the government’s
argument (1) "that the candor of tribal communications with
the Bureau [of Indian Affairs] would be eroded without the
protections of the deliberative process privilege recognized
under Exemption 5," and (2) "that confidentiality in commu-
nications with tribes is conducive to a proper discharge of [the
government’s] trust obligation [to the tribes]." Id. at 11. How-
ever, the government’s argument "skip[ped] a necessary
step," the Court emphasized, "for it ignore[d] the first condi-
tion of Exemption 5, that the communication be ‘intra-
agency.’" Id. at 12. Here, the majority skips the same neces-
sary step when it holds that the common interest privilege is
sufficient by itself to invoke the protection of exemption 5.

II.

The majority appears to be most concerned with an issue
that is not presented in this case: whether a communication,
 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 33
privileged under the common interest doctrine, between an
agency and a non-agency co-party is exempt from disclosure
under exemption 5. This question should be left for another
day because RIM and the government were not co-parties
here. Rather than seeking to become a party, the United States
filed a statement of interest and later obtained leave to inter-
vene for the limited purpose of appearing at a hearing on
injunctive relief.

Self-serving communications from outsiders, like Fenster’s
on behalf of RIM to DOJ to lobby it to file a statement of
interest, are the very sort of communications that FOIA meant
to expose to the light of day. A statement of interest, which
is authorized by 28 U.S.C. § 517, is designed to explain to a
court the interests of the United States in litigation between
private parties. Blondin v. Dubois, 238 F.3d 153, 159 n.6 (2d
Cir. 2001). It goes without saying that a statement of interest
can affect the outcome. See, e.g., Republic of Austria v. Alt-
mann, 541 U.S. 677, 701-02 (2004). When an outsider, such
as Fenster, who is not acting intra-agency, lobbies the govern-
ment to file a statement of interest supporting the position of
the outsider’s client, FOIA requires that the outsider’s com-
munications be disclosed. In this way, "FOIA’s mandate of
broad disclosure," Klamath, 532 U.S. at 16, serves as a
healthy check on both the government and the lobbyists.

III.

This case disproves the majority’s argument that once the
government decides that it has a common interest with an out-
sider, "the danger of self-advocacy at the expense of others
subsides" or "has by then past." Ante at 25 (internal quotation
marks, alteration, and citation omitted). Here, after DOJ and
RIM formed a common interest in arguing for a limited
injunction against RIM, RIM (through Fenster) continued to
lobby DOJ to go much further and oppose, on public interest
grounds, the award of any injunction at all. Even under the
majority’s approach, communications between RIM and DOJ
34 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE
about the public interest—an area where RIM and DOJ had
not formed a common interest—should be disclosed.

More fundamentally, once RIM and DOJ formed a com-
mon interest in limiting an injunction, RIM’s self-advocacy at
the expense of NTP did not subside or disappear insofar as the
scope of an injunction was concerned. Rather, RIM was
spurred to lobby DOJ to press for the narrowest injunction
possible, whether or not the government’s interest could have
been accommodated by one that was broader. This effort by
RIM—to convince DOJ that the common interest would be
best advanced by an essentially toothless injunction—was at
one level undertaken by RIM in its own interest to weaken the
position of NTP, its competitor. At this level RIM was acting
as a self-advocate and not acting intra-agency.

The majority gets no mileage from the Supreme Court’s
statement in United States v. Weber Aircraft Corp., 465 U.S.
792, 801-02 (1984), that it does not construe FOIA as a mech-
anism for easy circumvention of normal discovery privileges.
The Court emphasized that it would "simply interpret Exemp-
tion 5 to mean what it says." Id. at 804. Later, in Klamath the
Court read exemption 5 as setting forth two conditions of
equal importance. It concluded that exemption 5 was inappli-
cable when the communications were not intra-agency but
"would normally be privileged in civil discovery." Klamath,
532 U.S. at 5. In other words, when communications between
an outsider and the government fail the first (intra-agency)
condition, the communications must be disclosed even if they
meet the second (discovery privilege) condition.

Finally, I do not, as the majority suggests, draw formal,
arbitrary lines or parse words in reading exemption 5. I sim-
ply apply the Supreme Court’s straightfoward interpretation
of exemption 5 in Klamath: the intra-agency condition
excludes a self-interested outsider’s communication that seeks
agency action "that is necessarily adverse to the interests of
[the outsider’s] competitor[]." Id. at 14. RIM’s communica-
 HUNTON & WILLIAMS v. U.S. DEPARTMENT OF JUSTICE 35
tions to DOJ were not intra-agency because RIM acted
throughout in a way that was necessarily adverse to NTP. As
DOJ was formulating its statement of interest in the Black-
Berry litigation, RIM pressed DOJ to argue for a very narrow
injunction, which would benefit RIM at the expense of NTP.
Thus, the government was not immune from RIM’s self-
interested lobbying even after a common interest was formed.
Because this sort of lobbying is not intra-agency, exemption
5 does not shield it from public disclosure.