Jud. Watch, Inc. v. DOJ, No. 19-879, 2024 WL 1213199 (D.D.C. Mar. 21, 2024) (Nichols, J.)

Jud. Watch, Inc. v. DOJ, No. 19-879, 2024 WL 1213199 (D.D.C. Mar. 21, 2024) (Nichols, J.)

Re:  Request for records concerning meeting between Associated Press (“AP”) reporters and DOJ concerning story regarding, Paul Manafort, former campaign manager for Donald Trump’s 2016 campaign

Disposition:  Denying plaintiff’s motion for summary judgment; granting defendant’s motion for summary judgment

• Exemption 5, Attorney Work-Product Privilege:  The court relates that, “[h]ere the government is withholding handwritten notes taken by two Assistant U.S. Attorneys.”  “The first . . . was present at both the AP meeting and the later DOJ-only meeting.”  “The government argues that the handwritten notes contain [the first AUSA’s] ‘mental impressions concerning information related to potential criminal activity.’”  “[Plaintiff] counters that if it was [the] AUSA’[s] . . . ‘normal course of conduct to take notes to memorialize a meeting’ that it is unlikely that those notes contain his ‘mental impressions and deliberations on an investigation or anticipated litigation.’”  “But [plaintiff] is merely speculating, which is not enough at this stage.”  “After all, [the] AUSA . . . was acting as a DOJ lawyer, not a stenographer.”  “The government argues (and it is reasonable to assume) that the notes he took at a meeting about a possible lead would contain his considered judgment as to what facts he found credible from the AP, which leads could possibly lead to a crime, and what evidence he could actually rely on in the course of his work.”  “And even if he wrote down verbatim only what was said, his notes would still reflect his judgment about what was, or was not, relevant.”  “Such notes are just as much work product as a defense attorney’s handwritten notes of a witness interview or an in-house counsel’s handwritten notes from interviewing employees.”  “For the same reasons, the notes taken by the second AUSA (who attended only the second, DOJ-only meeting) are work product.”
  
  “The government also redacted one sentence in an email between two DOJ attorneys, sent a day after the AP meeting, in which they discussed various issues relating to the Manafort investigation.”  “According to the government, that sentence is a deliberation ‘in which two DOJ attorneys who had attended the AP Meeting discussed potential investigative steps.’”  “Such a discussion was in reasonable anticipation of litigation and is therefore also subject to the work-product doctrine.”