United States Court of Appeals
For the First Circuit
No. 01-1234
STATE OF MAINE,
Plaintiff, Appellee,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, UNITED STATES
GEOLOGICAL SURVEY, UNITED STATES FISH AND WILDLIFE SERVICE,
UNITED STATES DEPARTMENT OF COMMERCE, AND NATIONAL MARINE
FISHERIES SERVICE,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Selya, Circuit Judge,
Rosenn* and Cyr, Senior Circuit Judges.
Leonard Schaitman, Assistant United States Attorney, with whom
Matthew M. Collette, Assistant United States Attorney, Paula B.
Silsby, United States Attorney, and Stuart E. Schiffer, Acting
Assistant Attorney General, were on brief for appellants.
Christopher C. Taub, Assistant Attorney General of Maine, with
whom Paul Stern, Deputy Attorney General of Maine, and G. Steven
Rowe, Attorney General of Maine, were on brief for appellees.
July 30, 2002
*
Of the Third Circuit, sitting by designation
AMENDED OPINION
ROSENN, Senior Circuit Judge. This appeal raises
recurring questions in litigation with agencies of the United
States arising out of the tension between the substantive
provisions of the Freedom of Information Act (FOIA or the Act), 5
U.S.C. § 552, and the application of the attorney-client and work-
product privileges. In January 2000, the State of Maine (Maine)
submitted a series of FOIA requests to the United States Fish and
Wildlife Service, a component of the Department of Interior (DOI),
and the National Maritime Fisheries, a component of the Department
of Commerce (DOC)(collectively the Services) for documents relating
to the efforts of the Services to list Atlantic salmon in eight
rivers within Maine under the protection of the Endangered Species
Act (ESA), 16 U.S.C. §§ 1531-1544.
The DOI provided Maine with approximately 1400 documents
but withheld 308 documents, claiming attorney-client or work-
product privileges. Maine filed an action in the United States
District Court for the District of Maine to enjoin the Services
from improperly withholding those documents. On cross-motions for
summary judgments, the district court allowed the DOI to withhold
a number of documents but ordered that 197 documents be disclosed
immediately to Maine. It found them unprotected by the attorney-
client or work-product privileges. The DOI timely appealed.
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Following our issuance of an opinion in this case, the DOI filed a
petition for rehearing and Maine responded. We withdrew our
original opinion and vacated the judgment. We now affirm, reverse,
and vacate in part.
I.
Background
To provide a better understanding of the issues raised on
appeal and the litigious climate in which Maine made its requests,
we set forth the background history of this litigation.
The genesis of these proceedings is that in 1991, the
United States Fish and Wildlife Service designated Atlantic salmon
in five rivers within Maine as “candidate species” under the
Endangered Species Act.1 In 1993, the Services received petitions
to list all Atlantic salmon throughout the United States under the
ESA. In 1995, the Services decided that nationwide listing was
unwarranted. However, they determined that Atlantic salmon in
1
Congress enacted the ESA to protect species deemed to be
either endangered or threatened. The DOI and the DOC jointly
administer the ESA. Endangered is defined as: “in danger of
extinction throughout all or a significant portion of its range.”
16 U.S.C. § 1532(6). Threatened is defined as: “likely to become
an endangered species within the foreseeable future throughout all
or a significant portion of its range.” Id. § 1532(20). Species
is defined as: “any distinct population segment of any species.”
Id. § 1532(16). Although the normal listing procedures must comply
with the Administrative Procedures Act (APA), the Services have the
power to temporarily bypass the APA if an “emergency posing a
significant risk to the well-being of any species” exists. Id. §
1533(b)(7).
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seven rivers within Maine were a “distinct population segment,”
eligible for protection under the ESA and in danger of extinction.
The Services, therefore, proposed to list the salmon in these seven
rivers as “threatened” under the ESA.
Opposed to such a listing, Maine proposed the Atlantic
Salmon Conservation Plan for Seven Maine Rivers. In December 1997,
the Services, satisfied with the Conservation Plan, withdrew the
listing proposal. The compromise obligated Maine to issue annual
reports which were to be made available for public comment. With
the withdrawal of the proposed listing, the Services advised Maine
that they would maintain oversight of the species. They also
outlined circumstances under which the process for listing Atlantic
salmon in Maine rivers would be reinstated. In January 1999, Maine
circulated its draft 1998 annual report, which it issued in April
1999 as a final report after comments from the Services and the
public.
In the meantime, in January 1999, the Defenders of
Wildlife filed an action in the United States District Court for
the District of Columbia challenging the withdrawal of the
Services’ 1997 listing as violative of the ESA and the APA. In
March 1999, Maine moved to intervene as defendant.2 The Defenders
2
Maine also pleaded a cross-claim against the Services
challenging the listing of Atlantic salmon, but stipulated to a
dismissal of the cross-claim without prejudice. Maine threatened
to challenge the validity of any final listing should it ever come
to pass.
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sought, among other relief, to have the Services list the Atlantic
salmon under the emergency listing provision of the ESA. In August
1999, Trout Unlimited filed a suit raising substantially the same
issues in the same court as the Defenders. In the midst of the
Defenders and Trout lawsuits and Maine’s threat of future legal
action, the Services in November 1999 conducted another status
review and decided to list the Atlantic salmon as being in danger
of extinction in eight rivers within Maine.3
In resisting the proposed listing, Maine made a series of
FOIA requests to the Departments and their components seeking
documents pertaining to the decision to list the Atlantic salmon in
eight Maine rivers as endangered. The DOI satisfied Maine’s first
request made in December 1999. Maine made a second request, which
is the subject of this appeal, on January 18, 2000, to both
Departments, DOI and DOC, seeking all documents, data, studies, and
correspondence pertaining to the Services’ consideration of whether
to list Atlantic salmon in eight Maine rivers.4 In response, the
DOI released approximately 1400 documents. It withheld 308
documents as protected from disclosure under the attorney-client
3
In November 2000, after public hearings and comments, the
Services issued their final decision that became effective on
December 18, 2000. It listed as endangered a distinct population
of wild Atlantic salmon. In December 2000, Maine filed an action
in the United States District Court for the District of Maine
challenging the validity of the final decision.
4
The disputes with respect to documents from the DOC and its
division have been successfully resolved in the district court.
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and work-product privileges subsumed by the FOIA exemption 5 U.S.C.
§ 552(b)(5).5 The DOI asserts that all withheld documents were
generated between January 1999 and January 2000, a period in which
the Defenders and Trout lawsuits were pending.
Unsuccessful in administrative appeals, Maine filed an
action in June 2000, in the United States District Court for the
District of Maine alleging that the DOI improperly withheld 308
documents. On cross-motions for summary judgment, the district
court issued its decision and order on December 26, 2000, as
amended on January 2, 2001. Maine v. DOI, 124 F. Supp. 2d 728 (D.
Me. 2001). It ordered the DOI immediately to disclose 197
documents to Maine, finding them not exempt under either the
attorney-client or work-product privileges.6 Although the district
court stayed the immediate disclosure order pending appeal, the DOI
released 84 documents and challenged disclosure of the remaining
113 documents.7
5
In two documents, the DOI claimed an exemption under 5
U.S.C. § 552(b)(6), the privacy exemption, to which the district
court agreed. These documents are not at issue here.
6
As to the remaining documents, the district court found
seventy-one documents to be exempt and ordered an in camera review
of forty documents. None of those documents are at issue before
this Court, but the district court stayed the in camera review
pending the outcome of this interlocutory appeal.
7
The district court exercised subject matter jurisdiction
pursuant to 5 U.S.C. § 552(a)(4)(B). This Court has appellate
jurisdiction over the interlocutory order. Irons v. FBI, 811 F.2d
681, 683-84 (1st Cir. 1987) (upholding interlocutory appellate
jurisdiction pursuant to either 28 U.S.C. § 1292(a)(1) or
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II.
On appeal, the DOI raises two primary issues. First, as
to the attorney work-product privilege, the DOI claims that the
court erred in requiring a withholding agency to demonstrate that
a document was prepared “primarily” for litigation purposes to
protect it from disclosure under the FOIA, 5 U.S.C. § 552(b)(5).
Second, the DOI argues that the district court erred in rejecting
the agency’s assertion of attorney-client privilege for documents
containing legal advice and analysis from agency attorneys and
draft materials written by agency officials on the ground that the
documents do not reveal confidential communications from clients.
The FOIA requires government agencies to “make . . .
promptly available” to any person, upon request, whatever “records”
the agency possessed unless those records fall within one of the
statute’s exemption. 5 U.S.C. § 552(a)(3), (b). Even if some
information within a document is exempt, the withholding agency
must still disclose reasonably segregable non-exempt information.
Id. § 552(b). Several years ago, this court had the occasion to
review the policy, purpose and sweep of FOIA in Church of
Scientology International v. United States Department of Justice,
30 F.3d 224 (1st Cir. 1994). Writing for the court, Judge Coffin
noted that the statute’s basic purpose is to open agency action to
collateral order jurisdiction over FOIA orders directing immediate
disclosure).
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the light of public scrutiny. Id. at 228. The policy underlying
the statute, he wrote, “is thus one of broad disclosure, and the
government must supply any information requested by an individual
unless it determines that a specific exemption, narrowly construed,
applies.” Id.
When an aggrieved party files an action under the Act
because documents are withheld, the burden under the statute is on
the agency to demonstrate the applicability of a claimed exemption.
5 U.S.C. § 552(a)(4)(B). The district court must make a de novo
determination whether the agency has met its burden. Id.
To facilitate a broad disclosure and assist the requester
and, if necessary, a reviewing court, in determining whether the
claim of exemption is justified, a practice has developed for the
withholding agency to supply the requester with a Vaughn index.
The index takes its name from Vaughn v. Rosen, 484 F.2d 820 (D.C.
Cir. 1973), and requires a correlation of the information that an
agency decides to withhold with the particular FOIA exemption and
the agency’s justification for withholding. Maynard v. CIA, 986
F.2d 547, 556 (1st Cir. 1993). The index includes “a general
description of each document sought by the FOIA requester and
explains the agency’s justification for nondisclosure of each
individual document or portion of a document.” Church of
Scientology Int’l, 30 F.3d at 228. Thus, the index compels the
agency to scrutinize any material withheld in justification of its
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claimed exemption, assists the court in performing its duties, and
gives the requester as much information as is legally permissible.
Id.
Here, the DOI claims that 5 U.S.C. § 552(b)(5), which
exempts from disclosure “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,” shields from
disclosure the documents at issue. The Supreme Court has
interpreted that exemption to protect from disclosure those
documents that normally are privileged from civil discovery. NLRB
v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see also Church
of Scientology Int’l, 30 F.3d at 236. Thus, the attorney-client
and work-product privileges are included within the scope of the
fifth exemption of FOIA. Sears, Roebuck & Co., 421 U.S. at 154.
Although enacted to inform the public about government
agencies’ actions, FOIA “was not designed to supplement the rules
of civil discovery, and [a requester’s] right to obtain information
is neither enhanced nor diminished because of its needs as a
litigant.” Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1134-
35 (4th Cir. 1977)(citing Sears, Roebuck & Co., 421 U.S. at 143
n.10). With these principles in mind, we address the issues before
us and turn to the exemptions claimed by the DOI under the work-
product and attorney-client privileges.
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A.
Attorney Work-Product Privilege
The attorney work-product privilege first established in
Hickman v. Taylor, 329 U.S. 495 (1947), codified in Fed. R. Civ. P.
Rule 26(b)(3) for civil discovery, protects from disclosure
materials prepared by attorneys “in anticipation of litigation.”
Since Hickman, courts have reaffirmed the “strong public policy” on
which the work-product privilege is grounded. E.g., United States
v. Adlman, 134 F.3d 1194, 1197 (2d Cir. 1998). The privilege
protects work done by an attorney in anticipation of, or during,
litigation from disclosure to the opposing party.
The specific problem posed by the parties here is the
interpretation of the “in anticipation of litigation” requirement
in a FOIA context. The DOI submits that the district court erred
in holding that the documents DOI claims are privileged as
attorney work-product must not only identify the litigation for
which each document was prepared but also establish that counsel
prepared the document primarily for litigation purposes.
Relying on the Supreme Court’s admonition to interpret
FOIA exemptions narrowly, the district court held that the
determinative question here is whether the prospect of litigation
“served as the primary motivating factor for the preparation of the
documents.” Maine, 124 F. Supp. 2d at 743 (citing Scott Paper Co.
v. Ceilcote Co., 103 F.R.D. 591, 594 (D. Me. 1984))(emphasis
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added). The court reasoned that without such demonstration,
documents created for a dual purpose, as is common with
controversial rule proposals, “would eviscerate the purposes of the
FOIA” by potentially allowing an agency to withhold any document
created during a decision to promulgate a controversial rule. Id.
To do so would do nothing to advance the core purpose of the
attorney work-product privilege which is to protect “the adversary
trial process itself.” Id. Thus, the court held that to sustain
its burden of establishing the attorney work-product privilege, the
DOI’s Vaughn index must identify the litigation for which each
document was prepared and establish that the document was prepared
primarily for litigation purposes. Id. at 743-44.
The DOI argues that the district court’s reliance on
Scott Paper Company v. Ceilcote Company, 103 F.R.D. 591, 594 (D.
Me. 1984), a district court opinion, to require that counsel show
that the document was prepared “in anticipation of litigation” and
that litigation was “the primary factor” contradicts the purpose of
Fed. R. Civ. P. Rule 26 and court of appeals cases. The DOI
asserts that numerous courts of appeals have rejected the district
court’s approach here and adopted a “because of” standard. The
“because of” standard is one that determines whether a document is
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prepared because of existing or expected litigation. United States
v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998).8
In DOI’s petition for rehearing, it augments and
clarifies its views as to the application of FTC v. Grolier, Inc.,
462 U.S. 19 (1983) to the issue before us and emphasizes that the
district court interpreted the relevant FOIA exemption too
narrowly. The district court erred, the DOI argues, in holding
that the documents are protected by the attorney work-product
privilege only if the “primary motivating factor” for their
creation was to assist in litigation. DOI strenuously argues that
the applicable law, even in the FOIA context, is Rule 26 of the
Federal Rules of Civil Procedure9 and case law governing the
8
Other courts of appeals that have adopted this standard
include: National Union Fire Ins. Co. v. Murray Sheet Metal Co.,
Inc., 967 F.2d 980, 984 (4th Cir. 1992); Simon v. G.D. Searle &
Co., 816 F.2d 397, 401 (8th Cir. 1987); Senate of Puerto Rico v.
DOJ, 823 F.2d 574, 586 n.42 (D.C. Cir. 1987); Binks Mfg. Co. v.
National Presto Indus., Inc., 709 F.2d 1109, 1118-19 (7th Cir.
1983); In re Grand Jury Proceedings, 604 F.2d 798, 803 (3d Cir.
1979).
9
Federal Rule of Civil Procedure 26(b)(3) provides in
pertinent part that "a party may obtain discovery of documents and
tangible things otherwise discoverable . . . and prepared in
anticipation of litigation or for trial by or for another party or
by or for that other party's representative (including the other
party's attorney, consultant, surety, indemnitor, insurer, or
agent) only upon a showing that the party seeking discovery has
substantial need of the materials in the preparation of the party's
case and that the party is unable without undue hardship to obtain
the substantial equivalent of the materials by other means. In
ordering discovery of such materials when the required showing has
been made, the court shall protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the
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privilege, particularly FTC v. Grolier, Inc. and United States v.
Adlman.
In Grolier, the question was the extent, if any, to which
the work-product component of Exemption 5 applies when the
litigation for which the requested documents were generated had
been terminated. Although the issue was not identical to the
question before us, the Supreme Court concluded that whatever
problems are engendered in construing Rule 26(b)(3) in the civil
discovery area, the Rule “provides a satisfactory resolution to the
question of whether work-product documents are exempt under the
FOIA.” 462 U.S. at 25-26. Without any need to rely exclusively
upon any particular construction of Rule 26(b)(3), the Court held
that the test under Exemption 5 “is whether the documents would be
‘routinely’ or ‘normally’ disclosed upon a showing of relevance.”
Id. at 26. This was hardly a bolt from the blue. Several years
before, the Court explained in NLRB v. Sears Roebuck & Co., 421
U.S. 132, 149 (1975), that Exemption 5 “exempt[s] those documents,
and only those documents, normally privileged in the civil
discovery context.”
Adlman provides the most exhaustive discussion, albeit in
a non-FOIA context, of the standard adopted by the district court
here, as well as the one the DOI advances to this court. The court
litigation."
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of appeals described the issue and the competing standards as
follows:
It is universally agreed that a document whose purpose is to
assist in preparation for litigation is within the scope of
the Rule and thus eligible to receive protection if the other
conditions of protection prescribed by the Rule are met. The
issue is less clear, however, as to documents which, although
prepared because of expected litigation, are intended to
inform a business decision influenced by the prospects of the
litigation. The formulation applied by some courts in
determining whether documents are protected by work-product
privilege is whether they are prepared "primarily or
exclusively to assist in litigation" - a formulation that
would potentially exclude documents containing analysis of
expected litigation, if their primary, ultimate, or exclusive
purpose is to assist in making the business decision. Others
ask whether the documents were prepared "because of" existing
or expected litigation — a formulation that would include
such documents, despite the fact that their purpose is not to
"assist in" litigation.
134 F.3d at 1197-98 (emphasis added).
The Adlman Court reasoned that the “primary” standard is
at odds with the text and the policies of Rule 26 because nothing
in it suggests that documents prepared for dual purposes of
litigation and business or agency decisions do not fall within its
scope. Id. at 1198-99. Thus, that court rejected the “primary”
purpose standard as at odds with the literal terms and purpose of
the Rule. Id. Instead, the court adopted the formulation of the
work-product rule enunciated by Wright and Miller, 8 Fed. Practice
& Procedure, § 2024 at 343 (1994), and adopted by a number of
circuits, that documents should be deemed prepared for litigation
and within the scope of the Rule if, “in light of the nature of the
document and the factual situation in the particular case, the
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document can be fairly said to have been prepared or obtained
because of the prospect of litigation.” Id. 1202.
Maine does not dispute the reasoning or pertinence of
these cases in its answer to the petition for rehearing. Rather,
it submits, as it has before, “that the precise scope of the work-
product privilege is essentially irrelevant. This is so because
defendants failed to demonstrate that the documents at issue fall
within even the broad scope of the privilege set forth in the cases
upon which defendants rely. There is nothing to suggest that the
documents were created for any reason other than to assist the
defendants in taking a routine administrative action – implementing
a listing under the Endangered Species Act.” See Answer of Maine
at 1-2.
In light of the decisions of the Supreme Court, we
therefore agree with the formulation of the work-product rule
adopted in Adlman and by five other courts of appeals. (See n.9
supra). Thus, we must conclude that in the instant case it was
error to require the DOI to demonstrate that the withheld documents
were created primarily for litigation purposes in order to claim
the work-product privilege under 5 U.S.C. § 552(b).
This conclusion does not end our inquiry. Maine argues
that the “defendants produced so little information regarding the
withheld documents that there is simply no way of determining why
a particular document was prepared, what the document discusses, or
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whether it should be protected from disclosure.” See Answer of
Maine at 13. The DOI, on the other hand, argues that the district
court also erred in finding that the DOI failed sufficiently to
identify the litigation for which the alleged work-product
documents were prepared. This court previously has held:
[A]t a minimum, an agency seeking to withhold
a document . . . must identify the litigation
for which the document was created (either by
name or through factual description) and
explain why the work-product privilege applies
to all portions of the document.
Church of Scientology Int’l, 30 F.3d at 237. Although the
identification and explanation requirements are not to be given a
hypertechnical construction, they can neither be brushed aside nor
satisfied by vague generalities.
The DOI relies on the two declarations of Edward T.
Keable, the Attorney-Advisor, Office of the Solicitor, United
States Department of the Interior, that the DOI submitted in
support of its summary judgment motion. In the first declaration,
Keable asserts that the withheld documents are privileged and
refers to his written legal opinion that was sent to Maine during
the administrative appeal. However, the declaration is conclusory
and not of much help here. In the second declaration, Keable
identifies the following lawsuits related to the listing process:
(1) Defenders of Wildlife v. Babbitt; (2) Trout Unlimited v.
Babbitt; (3) Maine v. Department of Interior; (4) Maine’s threat to
challenge the final rule; and (5) Maine Aquaculture Association
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threat of suit if pen permits are modified to protect wild salmon.
The declaration is peremptory; it offers no information that the
documents requested were prepared for any of these lawsuits. In
both the legal opinion and in the corresponding transmittal letter,
the DOI explicitly acknowledged it has not identified the
litigation to which the withheld documents relate. Rather, it
reasoned that because there already have been three law suits
directly related to the listing, “it is reasonable for the
attorneys advising the Department to anticipate more litigation at
various stages in the process.”
An examination of the Vaughn index also is not helpful.
Although the index identifies the documents and describes the
general subject matter of each, it fails to demonstrate that any
particular document was prepared for litigation and fails to
correlate the documents to the lawsuits referred to in the Keable
declarations. The mere relation of documents to litigation does
not automatically endow those documents with privileged status.
The burden was on the DOI to make the correlation between each
withheld document and the “litigation for which the document was
created,” and the district court found that the DOI did not make
it. We see no compliance with this court’s minimum requirements
laid out in Church of Scientology International and perceive no
error by the district court in this regard.
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The problem that now confronts us is that the district
court did not identify the documents that it considered non-exempt
because of the DOI’s failure to satisfy the district court’s
“primary” standard or its failure to identify the litigation for
which the documents were created, or both. Our examination of the
Vaughn index and the lengthy footnote 18 of the district court, 124
F. Supp. 2d at 745 n.18, leads us to the conclusion, however, that
the majority of the documents at issue here were found non-exempt
by the district court because the DOI failed to identify the
litigation for which the documents were created. As explained, the
Vaughn index and the Keable declarations are of little help in
identifying the litigation responsible for their creation.10 The
DOI admitted as much in its legal opinion and in the corresponding
transmittal letter.
As to documents 71, 72, 80, 81, 91, 92, 207, 208, 234,
and 267, the DOI’s reference to the emergency listing proposal
could arguably be deemed to identify the litigation, mainly, the
Defenders and Trout lawsuits. The district court stated that the
descriptions of the emergency listing proposal, however, were
“ambiguous . . . explanations of the contents of the documents and
their possible relevance to litigation.” We see no reason to
disagree. The Adlman court emphasized that the “because of”
10
We believe that document 218 may sufficiently satisfy the
work-product rule. This document, therefore, is protected and
exempt from disclosure.
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standard does not protect from disclosure “documents that are
prepared in the ordinary course of business or that would have been
created in essentially similar form irrespective of the
litigation.” Adlman, 134 F.3d at 1202 (citing Fed. R. Civ. P.
26(b)(3), Advisory Committee’s Note; National Union Fire Ins. Co.
v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992)).
This is true even if the documents aid in the preparation of
litigation. Id.
On further review of the Vaughn index, we conclude that
the references to the emergency listing process are insufficient
descriptions to determine whether the documents were created
because of the Defenders and Trout lawsuits, or were “prepared in
the ordinary course of business or . . . would have been created in
essentially similar form irrespective of the litigation.” Thus,
although we conclude that the district court erred in holding that
the “primary” standard is the applicable test, under the
circumstances, its resolution of the documents to be released
remains unaffected.
Finally, the DOI argues that the district court erred in
concluding that FOIA does not exempt from disclosure factual
material in an otherwise privileged attorney’s work-product.
Maine, 124 F. Supp. 2d at 744-45. Maine moots the issue by
withdrawing its request for those nineteen documents still on
appeal that the district court ordered disclosed based on this
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legal holding. At oral argument, counsel for Maine also advised
the court that it will make a similar withdrawal with respect to
the documents subject to in camera review. Therefore, we will
vacate that portion of the district court’s order that held that
FOIA exemption 5 does not encompass factual components of a
privileged attorney work-product. Medical Prof’l Mut. Ins. Co. v.
Breon Lab., Inc., 141 F.3d 372, 376 (1st Cir. 1998) (“If a judgment
is rendered moot during an appeal, either through happenstance or
unilateral action by the prevailing party, normally the court
dismisses the appeal and orders the judgment vacated.”) (citing
United States Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S.
18, 25 (1994)).
B.
Attorney-Client Privilege
We now consider the attorney-client privilege. The DOI
contends that the court either misunderstood the scope of the
attorney-client privilege or applied it very narrowly in finding 81
of the still remaining 94 documents on appeal unprotected by the
attorney-client privilege. This privilege protects confidential
communications made by a client to his attorney. In re Grand Jury
Subpoena, 274 F.3d 563, 571 (1st Cir. 2001). The attorney-client
privilege “is the oldest of the privileges for confidential
communications recognized by law.” Weinstein’s Federal Evidence,
§ 503.03 (2d Ed.). The modern rationale for the privilege is more
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practical and expansive, promoting full disclosure by clients to
their attorneys; “it enables attorneys to act more effectively,
justly, and expeditiously.” Id. The privilege also protects from
disclosure documents provided by an attorney if the party asserting
the privilege shows:
(1) that he was or sought to be a client of [the attorney];
(2) that [the attorney] in connection with the [document]
acted as a lawyer; (3) that the [document] relates to facts
communicated for the purpose of securing a legal opinion,
legal services or assistance in legal proceedings; and (4)
that the privilege has not been waived.
United States v. Bay State Ambulance and Hosp. Rental Serv., Inc.,
874 F.2d 20, 27-28 (1st Cir. 1989) (quoting United States v.
Wilson, 798 F.2d 509, 512 (1st Cir. 1986)).
The DOI here asserts that the court held certain
documents unprotected by the privilege because they did not reveal
a confidential communication. This, it submits, is contrary to
Town of Norfolk v. United States Army Corps of Engineers, 968 F.2d
1438, 1457-58 (1st Cir. 1992), which holds that an attorney’s
advice to a client is protected if it relates to a confidential
communication. The DOI, however, mischaracterizes the district
court ruling. The district court held that the DOI failed to
demonstrate a confidential factual communication and “also [failed]
to explain how the withheld legal analysis would reveal any such
fact if it existed.” Maine, 124 F. Supp. 2d at 742.
Further, relying on Town of Norfolk, the DOI argues that
the court’s erroneous view of the scope of the privilege led the
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court to reject the privilege for documents at the heart of the
exchange of information and advice between the attorney and his
client. It points to the attorney’s advice, the agency’s proposed
actions, comment on and analysis of the lawyers’ draft pleading,
the opposing party’s pleadings, and discussions of strategy between
the lawyer and the client.
The DOI’s arguments are misplaced. In Town of Norfolk,
the court made a finding, absent here, that “by the content of the
letters, it is clear that they relate to facts communicated for the
purpose of securing a legal opinion, legal services or assistance
in a legal proceeding.” 968 F.2d at 1458 (internal quotation marks
and citation omitted). Here, the DOI has failed to explain, or
even attempt to explain except in conclusory statements, how the
documents claimed to be protected establish that they relate to a
confidential client communication. It further asserts that the
district court erred in requiring the DOI to show definitively that
each document reveals the substance of a confidential fact
communicated by the client. As we already noted, the court’s
conclusion of inapplicability of the attorney-client privilege was
premised on its determination that the DOI failed to establish the
requisite element of a client-communicated confidential fact.
The DOI erroneously assumes that the requirement of
client communicated confidentiality is satisfied merely because the
documents are communications between a client and attorney. The
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error in this assumption can be found by referring to Mead Data
Central, Inc., 566 F.2d at 253, where the court held that the
attorney-client privilege “does not allow the withholding of
documents simply because they are the product of an attorney-client
relationship . . . . It must also be demonstrated that the
information is confidential.” (emphasis added)(footnote omitted).
Like the district court here, the Court of Appeals for
the District of Columbia Circuit in Mead found certain documents
unprotected by the attorney-client privilege because the
withholding agency failed to demonstrate the confidentiality of the
information on which they are based. The court found that the
withholding party simply failed to demonstrate that the withheld
documents contain or relate to information that the client intended
to keep confidential and it thus failed to establish an essential
element of the privilege. 566 F.2d at 253-54.
We need not discuss each document for which the DOI
claims the attorney-client privilege because they all suffer from
the same infirmity. The Vaughn index states the names of the
individual or individuals preparing each document withheld, the
recipient, the claimed privilege, a general description of the
document, and the date. A strong example of the index in support
of the attorney-client privilege is entry number 112:
14-page draft statement materials facts from
an agency official to the DOJ lawyer
representing the Services in the Defenders of
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Wildlife case in order to assist the lawyer in
preparing pleadings in the case.
In Church of Scientology International, this court
rejected index entries as insufficient “because they fail to
specify whether the source was provided an express or implied grant
of confidentiality, or do not provide sufficient detail about the
surrounding circumstances to support an expression of implied
confidentiality.” 30 F.3d at 238. The above entry, like the
others, including those claimed under work-product privilege,
except one, is very general, without any explanation justifying the
privilege, and fails to identify any circumstance expressly or
inferentially supporting confidentiality.
We therefore conclude that Judge Carter, in his analysis
of the index and supporting affidavits, committed no error.
C.
Summary Judgment
Lastly, the DOI argues that the court acted prematurely
in granting summary judgment. Relying on Church of Scientology
International, 30 F.3d at 239-40, Judge Carter stated:
When an agency has failed to provide
sufficient detail in its Vaughn index and/or
affidavits in support of its claim of
exemption and nonsegregability, a district
court may require supplementation of the
Vaughn index, conduct an in camera review of
the documents in question, authorize limited
discovery, or order immediate disclosure of
the documents.
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Maine, 124 F. Supp. 2d at 737. The judge concluded that DOI met
its burden of establishing the privileged claim for some of the
documents. For many, he concluded that the DOI failed to supply
sufficient information to meet its burden of establishing the
claimed privilege. Id. at 738.
The DOI contends that the court erred on cross-motions
for summary judgment in granting immediate disclosure based on an
inadequate Vaughn index instead of providing the DOI with an
opportunity to submit additional affidavits and to revise its
Vaughn index. It argues that at the very least there exist genuine
issues of material fact to preclude granting of summary judgment
and ordering immediate disclosure.
As Maine points out, the DOI also requested that this
case proceed to disposition on its motion for summary judgment.
Further, the DOI has unilateral and uninhibited access to the
content of the withheld documents. In Church of Scientology
International, this court remanded the case and instructed the
parties that after the government has provided additional
information, the district court could choose to permit discovery
limited to specified documents, conduct in camera review of
selected documents, order release of some documents, or a
combination of these procedures. 30 F.3d at 239-40. This is the
course that the court followed here. It conducted a comprehensive
and painstaking review of the documents and the Vaughn index to
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arrive at its decision. It ordered immediate disclosure for some
documents where the DOI failed to satisfy the legal prerequisites
of the claimed privilege.
Although in Irons v. Bell we cautioned against ordering
immediate disclosure of documents based on an agency’s admittedly
flawed affidavit, especially where the supporting affidavit
involves a novel question of law, 596 F.2d 468, 471 n.6 (1st Cir.
1979), we perceive no error by this court. The Court of Appeals
for the Third Circuit similarly frowned upon immediate disclosure
in Coastal States Gas Corporation v. Department of Energy, but
noted that it in no way encouraged agency delay. 644 F.2d 969, 979
(3d Cir. 1981)(Coastal II). It would in the future follow the
suggestion of the court in Coastal States Gas Corporation v.
Department of Energy, 617 F.2d 854 (D.C. Cir. 1980)(Coastal I),
requiring agencies to supply sufficient information the first time
so as to allow courts to make a reasoned determination pertaining
to the legitimacy of the claimed exemptions. Coastal II, 644 F.2d
at 981. Of special pertinence here, the Coastal II court also
concluded that to survive summary judgment, it would not be
unreasonable to require an agency to stand on its first Vaughn
index. Id. at 984.
In the instant case, the DOI opposed the discovery of
these documents and never requested a hearing or oral argument. It
stood on its motion for summary judgment. The DOI never submitted
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a supplemental or revised index justifying the withholding of the
documents under the claimed privilege. The district court adhered
to the common standard summary judgment procedure and, under the
circumstances, did not abuse its discretion in denying the agency
“a second chance.”
III.
Conclusion
In sum, as Maine has withdrawn its request for documents
related to the district court’s holding that factual materials in
a privileged attorney work-product are not exempt from disclosure,
we will vacate that part of the district court’s order. The
district court’s standard that a document may not be exempt under
the attorney work-product privilege unless the prospect of
litigation “served as the primary motivating factor” must be
rejected. Under the circumstances already explained, the error is
harmless here. For the reasons set forth above, the district
court’s rulings on the attorney-client privilege are affirmed. The
order granting Maine’s motion for summary judgment and directing
the disclosure of the 94 withheld documents is affirmed except as
to document 218.
Affirmed, reversed, and vacated in part. All parties shall bear
their own costs.
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