Convertino v. United States Department of Justice

Procedural entryThis page is a short order in Convertino v. United States Department of Justice. Read the opinion of the Court — 565 F. Supp. 2d 10 →

District Court, District of Columbia·Decided November 16, 2009·No. Civil Action No. 2004-0236·Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) RICHARD G. CONVERTINO, ) ) Plaintiff, ) ) v. ) Civil Action 04-0236 (RCL) ) UNITED STATES DEPARTMENT OF ) JUSTICE, et al., ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION

This matter comes before the Court on the plaintiff’s Motion [116] to Compel Production

from defendant. Upon consideration of the plaintiff’s motion, the defendant’s opposition [129]

thereto, the plaintiff’s reply [145] brief, the defendant’s surreply [149], the applicable law, and

the entire record herein, the Court concludes that the some documents need to be reviewed in

camera before the Court can make a decision regarding the entire motion to compel.

BACKGROUND

Plaintiff, Richard G. Convertino filed the Complaint against the United States

Department of Justice (“DOJ”) on February 13, 2004, raising two counts. (Compl. ¶¶ 24-143.)

One count has been dismissed leaving only whether defendant willfully and intentionally

disclosed information to a reporter for the Detroit Free Press in violation of the Privacy Act, 5

U.S.C. § 552a. (Def.’s Opp’n to Pl.’s Mot. to Compel at 3-4.) The disclosed information most

likely consisted of one or more documents from an investigation into plaintiff’s conduct by

defendant’s Office of Professional Responsibility (“OPR”). (Compl. ¶¶ 109-113.)

The OPR began an investigation in November of 2003 after the United States Attorney’s

1 Office for the Eastern District of Michigan referred allegations of prosecutorial misconduct

against Assistant United States Attorney Richard Convertino—former lead trial counsel in the

case of United States v. Koubriti. (Def.’s Opp’n to Pl.’s Mot. to Compel Ex. 12 at 1.) The OPR

crafted a series of letters stating what issues the OPR would investigate and which it would not.

(Id.) A limited number of people had access to these private letters. On January 17, 2004 an

article addressing the investigation by OPR was written by David Ashenfelter and published in

the Detroit Free Press. (Id.) Following the leak, the Office of the Inspector General (“OIG”)

began an investigation to determine who provided the information to the press, ultimately

concluding that there was insufficient evidence to prove, by a preponderance of the evidence,

who the leaker was. (Id. Ex. 12 at 16.)

Plaintiff filed this motion to compel production of 736 various documents that plaintiff

believes are responsive to his discovery requests. (Id. at 1, Exs. 1 and 2.) Defendant has

categorized these documents as privileged, either by the deliberative process privilege, the work

product doctrine, or the attorney-client privilege and thus claims the documents are not

discoverable. (Id. at 3-27.) Plaintiff has requested that the Court review the documents in

camera “to the extent that the applicability of the deliberative process privilege is not clear . . . .”

(Pl.’s Reply to Def.’s Opp’n to Pl.’s Mot. to Compel at 1.)

DISCUSSION

Fed. R. Civ. P. 26(b)(1) requires a party to disclose any material the other party requests

that is relevant to plaintiff’s claim or defendant’s defense, if it is not protected by a privilege.

See Fed. R. Civ. P. 26(b)(1) (“. . . parties may obtain discovery regarding any matter, not

privileged, that is relevant to the claim or defense of any party.”). Neither party disputes that the

736 documents requested are relevant to the Complaint. (Pl.’s Mot. to Compel at 4-6.)

2 However, many of the 736 documents requested are protected by various privileges. Finding the

documents are relevant, the Court must then decide if the 697 documents, classified by defendant

as protected by the deliberative process privilege, are in fact protected. (Def.’s Opp’n to Pl.’s

Mot. to Compel at 6.)

I. Deliberative Process Privilege

The deliberative process privilege acts to shield documents from discovery requests. It

protects “advisory opinions, recommendations and deliberations comprising part of a process by

which governmental decisions and policies are formulated.” In re Sealed Case, 121 F.3d 729,

737 (D.C. Cir. 1997) (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324

(D.D.C. 1966)). The purpose of the privilege is to protect the decision-making process of the

government by creating an environment where people can freely express their opinions and

debate alternative approaches before a decision is made. See id. To qualify for the privilege the

document must be both “predecisional” and “deliberative.” See Id. “[A] document is

deliberative if it ‘reflects the give-and –take of the consultative process,’ . . . [a document is

predicisional if it] ‘reflect[s] the agency “give-and-take” leading up to a decision that is

characteristic of the deliberative process.’” See Access Reports v. Dep’t of Justice, 926 F.2d

1192, 1195 (D.C. Cir. 1991) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d

854, 866 (D.C. Cir. 1980)).

Although there are too many documents to go into detail on how each satisfies the

privilege requirements, neither party effectively disputes that the documents are both

predicisional and deliberative. (Def.’s Opp’n to Pl.’s Mot. to Compel at 6; cf. Pl.’s Mot. to

Compel at 10-11.) Further, defendant has attached “declarations from officials in the relevant

3 DOJ components formally asserting the deliberative process privilege over the withheld

documents.” (Def.’s Opp’n to Pl.’s Mot. to Compel at 2.)

However, there are certain exceptions that apply to the deliberative process privilege,

making the documents discoverable. “To the extent that the applicability of the deliberative

process privilege is not clear,” plaintiff has requested “that the Court review the documents in

camera to determine whether they are privileged.” (Pl.’s Reply to Def.’s Opp’n to Pl.’s Mot. to

Compel at 19-20.) Finding that the documents are relevant as well as deliberative and

predicisional, the Court is willing to look at a few documents in camera to see if an exception

applies to the documents.

II. Exceptions

The balancing test, which is typically applied to the privilege, is not needed when (1) the

government’s intent is squarely at issue or (2) there is any evidence of governmental misconduct.

See generally Alexander, 193 F.R.D. 1, 10 (D.D.C. 2000) (Lamberth, J.) (explaining the

deliberative process privilege). Plaintiff essentially raises two separate concerns in his Motion to

Compel and his Reply. The first concern, which plaintiff believes entitles him to the disclosure

of the 736 government documents, is the investigation into whether the defendant actually acted

willfully or intentionally in the leak of private information about plaintiff, in violation of the

Privacy Act. The second concern, which plaintiff also believes removes the deliberate process

privilege, is whether defendant retaliated against plaintiff by attempting to cover-up the leaker(s).

(Pl.’s Reply to Def.’s Opp’n to Pl.’s Mot. to Compel at 6.) The Court finds that the second

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