Judge Lamberth Finds No Waiver Where Party Produces Privileged Documents Pursuant to a Subpoena 1

Judge Royce C.  Lamberth, who oversaw the Foreign Intelligence Surveillance Court after September 11, 2001, issued a point-blank ruling that a government agency’s disclosure of privileged information to the U.S. Senate’s Permanent Subcommittee on Investigations did not constitute a waiver of the attorney–client privilege or deliberative-process privilege.  Spears v. First American eAppraiseIT, 2014 WL 6783737 (D.D.C. Dec. 2, 2014).  You may read Subpoenathe decision here.

The U.S. Senate’s Permanent Subcommittee on Investigations issued a report in 2011 on the 2007–2008 Wall Street financial collapse.  The report included references and summaries of documents that the Office of the Comptroller of Currency provided to the Subcommittee under seal pursuant to a subpoena duces tecum.

In a subsequent civil lawsuit against First American eAppraiseIT, the plaintiffs subpoenaed the OCC requesting that it produce the three documents behind the summaries that the Subcommittee publicly disclosed in its report.  The documents were a memorandum from OCC (then Office of Thrift Supervision) attorneys to its Chief Counsel, OCC enforcement attorney’s notes containing legal analysis of the investigation of Washington Mutual Bank, and a memorandum of an OCC Regional Appraisal to OCC Enforcement Counsel.

The OCC objected on grounds that the attorney–client privilege and the deliberative-process privilege protected the documents from disclosure.  The plaintiffs agreed with the privilege assertions, but stated that the OCC’s disclosure of the documents to the Subcommittee—and the Subcommittee’s subsequent disclosure in its public report—constituted privilege waiver.

Judge Lamberth, however, rejected these arguments.  He ruled that the OCC had not waived the privileges because the Subcommittee, and not the OCC, had publicly disclosed the documents’ content.  He ruled that the OCC’s disclosure of documents to the Subcommittee was not tantamount to the OCC publicly disclosing the documents, noting that “OCC is not responsible for” the Subcommittee’s report.

Judge Lamberth also held that OCC did not waive the privileges by producing the documents to the Subcommittee because it did so in response to a subpoena.  He held that “documents produced pursuant to a subpoena are not voluntarily disclosed,” noting that “[t]here is less reason to find waiver when documents have been provided pursuant to a subpoena, and provided under seal.”

PoP Analysis.  Judge Lamberth distinguished each case on which the plaintiffs relied in asserting their privilege-waiver argument, but provided little case-law support for his rulings that producing documents pursuant to subpoena does not constitute privilege waiver or that a government branch’s disclosure does not equate to public disclosure by the party originally producing the documents.  Yet, for lawyers looking for authority supporting the argument that producing documents pursuant to a subpoena does not constitute voluntary disclosure and privilege waiver, Judge Lamberth provides it here.

Privilege Protects CIA’s Bay of Pigs Study from Disclosure

In a 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit ruled that the deliberative process privilege protects from a FOIA request a 1973 CIA draft volume about the Bay of Pigs operation.  The draft, the last of a five-volume assessment by former CIA staff historian Dr. Jack Pfeiffer, detailed the author’s conclusions about the failed Cuban invasion. National Security Archives v. Central Intelligence Agency, 2014 WL 2053829 (D.C. Cir. May 20, 2014).  You may read the opinion here.

In April 1961,  President Kennedy authorized a CIA-led invasion of Cuba in an effort to diminish Cuba’s military in preparation for a hopeful democratic revolution and overthrow of Castro’s Communist regime.  The CIA provided air support while Cuban exiles launched from Guatemalan shores and landed on the banks of the Bay of Pigs.

The military operation failed and resulted in several casualties, including the lives of four American pilots.  President Kennedy addressed the pilots’ deaths, and the continued secrecy of their role in the operation, with these short remarks at a press conference.

In 1973, CIA staff historian Dr. Jack B. Pfeiffer drafted what became a five-volume treatise on the Bay of Pigs invasion.  The CIA later released Pfeiffer’s drafts of Volumes I through IV, but never released the fifth volume.  In connection with the 50th anniversary of the Bay of Pigs invasion, the non-profit group National Security Archives submitted a FOIA request for Pfeiffer’s fifth volume.  The CIA refused its production on grounds that the deliberative process privilege protected its disclosure, and defended that position when the requestor filed suit.

The issue reached the U.S. Court of Appeals.  In a 2-1 decision, the Court ruled that the deliberative process privilege covered Dr. Pfeiffer’s fifth-volume draft.  The deliberative process privilege, a branch of the general executive privilege, precludes from disclosure agency communications that are both predecisional and deliberative.  Noting a “concern that is as old as the Republic,” the Court recognized that the privilege permits agency employees to participate in the free, uninhibited exchange of ideas without fear that their discussions will later be disclosed.

The Court held that the deliberative process privilege protects all “draft” agency documents because they are necessarily predecisional and deliberative.  While drafts may become final versions released to the public, the drafts remain predecisional.  The Court rejected all of the requestor’s counterarguments, including that the privilege should not apply because there was no “final” fifth volume, the CIA released the other four volumes, the CIA identified no harm in the fifth volume’s release, and the passage of time (50 years) renders the privilege inapplicable.

With no final version of the last of his five-volume assessment, Dr. Pfeiffer’s draft will always remain a draft that the public will never see short of the CIA’s voluntary disclosure.

Privilege Protects OLC Legal Memo Authorizing FBI’s Phone Records Collection

In another privilege-related victory for the Obama Administration, the Court of Appeals for the D.C. Circuit ruled that the deliberative process privilege protects from disclosure an Office of Legal Counsel memorandum authorizing the FBI’s collection of calling records froOLCm telephone companies without a subpoena.  Electronic Frontier Foundation v. Dep’t of Justice, No. 1:11-cv-00939 (D.C. Cir. Jan. 3, 2014).  You may access the opinion here.


The FBI may use “national security letters” to subpoena telephone records that it certifies are connected to an authorized national security investigation.  See 12 U.S.C. § 3414(a)(5)(A).  In 2007, the Office of Inspector General (OIG) issued an investigative report  finding that the FBI used so-called “exigent letters” to obtain phone records without certifying that the requested records were part of an authorized investigation.

During a second OIG investigation, the FBI’s General Counsel sought legal advice about the FBI’s use of exigent letters to obtain phone records without a subpoena.  The OIG’s January 2010 investigative report stated that the OLC’s legal memorandum provided authority for the FBI’s collection of records from telephone-service providers “without legal process or qualifying emergency” and notwithstanding the Electronic Communication Privacy Act.

Electronic Frontier Foundation, a self-described organization providing the “first line of defense” when “freedoms in the networked world come under attack,” sought the OLC Legal Memo through a FOIA request, and filed suit when the Justice Department refused to produce it.  The DOJ asserted, in part, that the deliberative process privilege protected the OLC memo from disclosure.

Deliberative Process Privilege

The deliberative process privilege protects from discovery (and FOIA requests) documents reflecting opinions, recommendations, and deliberations that are part of the governmental agency decision-making process. The privilege protects only documents that are both deliberative—reflecting the back-and-forth of the deliberation process—and predecisional.

Agency legal opinions generally fall within two categories.  One is the “working law,” which includes legal opinions supplying the basis for an agency policy or decision actually adopted. The deliberative process privilege does not apply to working law documents, and courts require agencies to disclose these documents, including binding agency opinions and interpretations that the agency actually applies.

The second category includes agency legal opinions that concern the advisability of an agency policy but stop short of stating or determining that policy. The deliberative process privilege protects these legal memoranda from disclosure because they are part of the give-and-take of the consultative process that the privilege was designed to protect.


The court ruled that the OLC legal memo did not fall within the “working law” category because the OLC did not have authority to establish FBI policy.  A legal advisor’s final legal opinion is not equivalent to the agency’s final decision and, here, the OLC’s legal memo simply provided legal advice that the FBI considered but ultimately did not adopt.  Accordingly, the deliberative process privilege protected the OLC legal memo from a FOIA disclosure.

String of Victories

The Electronic Frontier decision represents another victory for the Justice Department in protecting OLC legal opinions from disclosure.  As detailed in this PoP Post, a court ruled on January 7, 2013 that the privilege precluded the New York Times’ attempt to obtain an OLC legal memo allegedly supporting President Obama’s January 2012 recess appointment of Richard Cordray as CFPB Director.   And as described in this PoP Post, in a January 2, 2013 decision, a court ruled that the Justice Department may withhold an OLC legal memo prepared for Attorney General Eric Holder that allegedly provided legal support for a U.S. program targeting terrorists, including U.S. citizens, for assassination.