Академический Документы
Профессиональный Документы
Культура Документы
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 1
Page
of 261 of 26
SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 2
Page
of 262 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
TABLE OF CONTENTS
Page
TABLE OF CONTENTS.i
TABLE OF AUTHORITIES...iii
I.
Summary of argument1
II.
III.
A.
B.
C.
D.
E.
B.
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 3
Page
of 263 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
B.
C.
CONCLUSION..21
ii
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 4
Page
of 264 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
TABLE OF AUTHORITIES
Cases:
Page(s)
iii
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 5
Page
of 265 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
Plaintiff Jay Anthony Dobyns, through counsel undersigned, in the abovecaptioned action against defendant United States, on behalf of the Bureau of Alcohol,
Tobacco, Firearms & Explosives (ATF), and pursuant to the Special Masters Order
dated May 14, 2015, Document 379, submits the following reply memorandum
regarding plaintiffs request for the Office of Professional Responsibility (OPR)
documents relevant to this action and the non-disclosed documents relating to the
issues in the Special Masters April 13, 2015 Order in the possession of the current,
post-October 24, 2014 Department of Justice (DOJ) Civil Division counsel.
I.
Summary of Argument.
Substantial evidence is now before the Court supporting the allegations that
Civil Division attorneys committed fraud upon the Court, and also against Jay Dobyns,
by injuring his ability to make arguments in Court that may have changed the trajectory
of certain aspects of the lawsuit. The Office of Professional Responsibility (OPR)
investigative file and evidence withheld by the current Civil Division trial team regarding
fraud and crime may constitute evidence of breaches of ethical rules, material
misrepresentations, and the possible violation of criminal statute 18 U.S.C. 1001(a)
with false statements to this Court and to OPR. Jay Dobyns and this Court have a right
to know the factual evidence that OPR and the current trial team possess.
The course and scope of employment of those investigated attorneys makes the
related documents discoverable. The Department of Justice does not employ attorneys
to commit a crime or a fraud upon the court. Therefore, to the extent that any
communications with counsel or work-product relate to such facts, the attorney-client
privilege and work product protections do not apply; those communications are
1
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 6
Page
of 266 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 7
Page
of 267 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
people, not seven lawyers and witnesses to actions by them that may constitute fraud
on the court, against the plaintiff, and potentially also crimes. That is the consequence
of the Justice Departments tolerance of its conflict of interest between its duties to the
public and its representation of its own employees in their personal capacity.
The conclusion that attorney-client privilege and attorney work product
protections do not apply, is reached without plaintiff even having to invoke the crimefraud exception. However, if and to the extent that the Department of Justice has or
continues to assist attorneys to shield existing evidence that one or more Civil Division
attorneys: (1) encouraged defense witness Charles Higman to threaten plaintiffs
witness Christopher Trainor, (2) threatened Trainors career if he reported the threats
to this Court; (3) encouraged or directed ATFs Michael Gleysteen and/or Ron Turk to
close down the criminal investigation of the Higman threats, and to do so without
interviewing Higman; or 4) conspired to withhold all of the foregoing from this Court;
then the current Justice Department trial team is advancing a crime or fraud upon this
Court. In that case, the crime-fraud exception trumps the attorney-client privilege and
the attorney-work product protections for the current legal team and their documents
related to such evidence of wrong-doing, especially any currently unknown instances.
II.
The Justice Department cannot escape the fact that in 2010 and 2011, in this
action, it participated at length in negotiating and stipulating to an amended protective
order that protects against every privacy and government functionality argument that
3
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 8
Page
of 268 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 9
Page
of 269 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
The privileges fail in the face of the crime-fraud exception, when the evidence
protected by the Justice Department relates to matters not yet before the Court, such
as potentially using Higman to tamper with Trainor, or where fresh evidence may exist
to prove the multiple allegations set forth in plaintiffs opening memorandum, or that is
unknown to either plaintiff or the Court. Based on the Valarie Bacon incident and the
recent pleading series regarding defendants attempted clawback of documents,
reasons exist to believe that DOJs pattern and practice in the trial is being repeating
now, and that OPR and the new trial team possess admissions of witnesses that Civil
Division attorneys assisted Higman to threaten Trainor and encouraged the closure of
ATFs criminal investigative file against Higman, without an interview of him.
Every hole that discovery has down, with respect to DOJ memoranda and
emails on these topics of unethical and fraudulent conduct, has produced relevant
evidence. Plaintiff submits that the parties have reached the point where the
presumptions now favor disclosure of the withheld documents.
C. Factual portions of documents are not protected by the
deliberative process privilege.
Defendant has no persuasive response that factual matters collected by OPR or
the current trial team are not protected by the deliberative process privilege. Most of
what plaintiff seeks do not even have any analytical component to them they are the
records produced to OPR and to the current trial team, and the statements by
witnesses, who merely happen to also be former trial team members. The fact that
those witnesses work for the Justice Department does not translate to defense counsel
having unlimited access to them outside of plaintiffs ability to question and monitor,
along with the right of the Special Master to observe the questioning. This is not
5
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 10
Page
of 26
10 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
inconsistent with the Courts Opinion that the barred attorneys can help in preparing a
defense; however, factual statements as to whether anyone encouraged Higman to
contact Trainor or helped to shut down ATFs criminal investigation Higmans threats
are factual matters that are susceptible to investigation by all parties and the Court.
This is a mainstream interpretation of the deliberative process privilege:
Implicit in the two theories upon which the official
information privilege rests is an important limitation
upon its scope. The privilege protects only
expressions of opinion or recommendations in
intragovernmental documents; it does not protect
purely factual material. (citations omitted)
In re Franklin National Bank Securities Litigation, 478 F. Supp. 577, 581-582 (E.D.N.Y.
1979). Within the District of Columbia Circuit, this exception is well-accepted:
Our review of the withheld documents indicates that several
documents are either wholly factual or contain segregatable
factual sections that would not come under the deliberative
process privilege.
In re Sealed Case, 121 F.3d 729, 740 (D.C. Cir. 1997).
Indeed, access to factual information is a key distinction between it and the
executive privilege afforded the White House:
The protection offered by the more general deliberative
process privilege will often be inadequate to ensure that
presidential advisers provide knowledgeable and candid
advice, primarily because the deliberative process privilege
does not extend to purely factual material.
Id. at 750. The need to expose factual information is in fact the cleave point of the
deliberative and executive privileges. Id. at 751.
Federal courts have found that the mere possibility of a decision based on
factual investigations is insufficient to protect facts from discovery:
6
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 11
Page
of 26
11 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 12
Page
of 26
12 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
Plaintiff conducted as broad a search for case law as it deemed possible in searching
for personnel decisions invoking the deliberative process privilege, without finding the
Special Masters McPeek decision. As clear and forcefully articulated as the Special
Masters opinion is in that decision, defendant failed to produce any other examples of
the deliberative process privilege extended to personnel proceedings or any other
operational, logistical equivalents.
8
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 13
Page
of 26
13 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
Playboy Enterprises, Inc. v. Department of Justice, 677 F.2d 931, 935 (D.C. Cir. 1982).
See Morley at 1129 (On remand [.] the district court also shall make the requisite
segregability determination.)3
D. Importantly, the deliberative process privilege is not intended to
bestow upon the federal government greater evidentiary
privileges than ordinary citizens in court, or beyond what is
necessary to protect uniquely governmental functions.
Far from representing a difficult task, for those DOJ documents where both
facts and analysis appear, especially where a litigant such as Jay Dobyns seeks facts
relating to government misconduct, those categories are likely already separated in
many instances and easily severable:
In other words, the court concluded that the factual material
in the Report is severable from those parts which are
protected. In its brief in this court Playboy endorses this
analysis, emphasizing that it does not "wish to probe the
process whereby the task force assigned reliability or weight
to specific evidence. Rather, it merely seeks the facts that
were uncovered in this investigation of alleged government
misconduct in the early 1960's." (Brief for Appellee at 25-26)
The Department, on the other hand, argues that the entire
Rowe Report reflects the "choice, weighing and analysis of
facts" by the task force, and is therefore protected as a part
of the deliberative process. (Brief for Appellant at 25)
According to the Department "it is the very narration of the
facts that reflects the evidence selected and credited." Id.
We are not persuaded by the Department's argument.
Anyone making a report must of necessity select the facts to
be mentioned in it; but a report does not become a part of
the deliberative process merely because it contains only
those facts which the person making the report thinks
material. If this were not so, every factual report would be
protected as a part of the deliberative process.
Playboy Enterprises, 677 F.2d at 935.
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 14
Page
of 26
14 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 15
Page
of 26
15 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
11
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 16
Page
of 26
16 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
While the deliberative process privilege has its roots in the English crown
privilege and more recently in the executive privilege, courts have restricted its
application and distinguished its applicability from those historical cousins. The first
major separation from related privileges came in Kaiser Aluminum & Chemical
Corporation v. U.S., 157 F.Supp. 940 (C.C. 1958), where the Court examined the
General Services Administrations (GSA) claim of privilege related to certain
documents surrounding a government sales contract. GSA asserted the privilege
claiming that disclosure of the sought documents was contrary to the national interest
because the documents contained recommendations and advice on program policy.
Id. at 942, 944. Framed within the context of the GSAs refusal to produce advisory
opinions related to intra-office policies, the court first examined the claims within the
general context of executive privilege. The court considered the policy concerns of
closing discovery administrators pre-decisional evaluations and discussions, but the
court noted that this privilege was far from absolute. And importantly, the court
established the necessity to consider the circumstances around the demand for this
document in order to determine whether or not its production is injurious to the
12
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 17
Page
of 26
17 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
See also First Eastern Corporation v. Mainwaring, 21 F.3d 465, 469 (D.C. Cir. 1994)
([FN5] Even if the Bank could assert a valid privilege in this case, it is not absolute,
and competing interests would have to be balanced.); and In re Sealed Case, 121
F.3d 729, 751 (D.C. Cir. 1997) (The greater ease with which the deliberative process
privilege can be overcome is another reason to doubt its efficacy in ensuring candid
presidential advice) and In re Sealed Case, 121 F.3d at 737-738 (The deliberative
process privilege is a qualified privilege and can be overcome by a sufficient showing
of need.)
5
13
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 18
Page
of 26
18 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
in light of then existing banking law restrictions on such activities. When denying
application of the claimed privilege, the court emphasized the importance of the narrow
construction of the privilege: Privilege, of course, is a doctrine of concealment. It
means that materials relevant to the issue in court are, for some reason paramount to
the administration of justice, to be hidden from disclosure. It is not to be construed
beyond its necessary application. Id. at 401.
Further, the court recognized the fact-determinative nature of the privilege:
This question cannot be resolved in the abstract. The merits
of the particular matter before the court must be considered,
the necessity of disclosure weighed against the need for
privacy in the light of the circumstances disclosed. Here we
have a claim of subterfuge, of sham, of the use of devices
bordering on fraud whereby, it is alleged, the Comptroller's
office sought to cloak an illegal act in the habiliments of
legal propriety and good faith.
Id. at 402. The court also weighed the competing public interests:
If there were a new weapon of national defense here, the
details of which were sought, if private advices to one of our
ambassadors were to be revealed, or if an informant were
to be named to the press and public, the public interest in
non-disclosure would be clear, as against we would be
required to weigh the private interest asserted. But at the
time this formal claim of privilege was made in this matter a
prima facie case of sham and subterfuge had been made
out. It would seem that the real public interest under such
circumstances is not the agency's interest in its
administration but the citizen's interest in due process.
Id. at 402. The relevance of the documents sought is a crucial part of the analysis:
The information in the reports is relevant to numerous
issues in the litigation; the litigant's claim of need is
concrete, not abstract. Ernst & Ernst, the auditors of FNB,
for example, urge that access to the examiner's evaluation
of FNB's financial condition will assist in defending the
actions against them for negligently conducting their audits.
Where the examiner's investigation paralleled that of Ernst
14
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 19
Page
of 26
19 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
15
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 20
Page
of 26
20 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
Even were the government's case for shielding its documents more persuasive, the
interests of the litigants and the public in disclosure are much more compelling. Id.
IV.
The Special Master is clearly expert in matters of privilege. While respecting the
reasoning of the Special Master in McPeek, plaintiff submits that application of the
deliberative process privilege to all actions of an agency, including disciplining its own
employees, gives an imbalanced advantage to the government as compared to private
litigants whose documents on the same topic would be discoverable.
Moreover, plaintiff submits that the National Labor Relations Board decision and
others actually intend for expansions of the privilege beyond regulation- and policygeneration to be limited and formal:
Accordingly, the courts have recognized little public interest
in the disclosure of "reasons supporting a policy which an
agency has rejected, or reasons which might have supplied,
but did not supply, the basis for a policy which was actually
adopted on a different ground." Sears, 421 U.S. at 152, 95
S. Ct. at 1517. However, the courts have recognized a
strong public interest in the disclosure of reasons that do
supply the basis for an agency policy actually adopted.
Taxation with Representation Fund v. Internal Revenue Service, 646 F.2d 666, 667678 (D.C. Cir. 1981). Indeed, the NLRB decision dealt with very formal apparatus of
decision-making, and not internal logistics of personnel matters:
Crucial to the decision of this case is an understanding of
the function of the documents in issue in the context of the
administrative process which generated them. [.]Under
16
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 21
Page
of 26
21 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
17
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 22
Page
of 26
22 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 23
Page
of 26
23 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 24
Page
of 26
24 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
Jay Dobyns has made sufficiently clear and supported allegations to overcome
the privilege and receive the sought after, relevant documents:
The authorities do not support the application of the
privilege claimed to the facts before us. This is not the
frivolous claim of an idle mischief maker. This is a citizen
who has presented sufficient facts to warrant searching
inquiry. There is no doubt that official records have a
degree of sanctity, but it is not absolute.
Bank of Dearborn v. Saxon, 244 F. Supp. 394, 402-403 (E.D. MI. 1965).6 Reconciling
the publics interest in fair and honest governance and plaintiff Dobyns need for OPRs
and Civil Divisions documents on the one hand, with the Justice Departments desire
to keep evidence relating to allegations of attorney misconduct secret, on the other,
weigh in favor of disclosure of those documents to plaintiff Dobyns:
[W]here there is reason to believe the documents sought
may shed light on government misconduct, the privilege is
routinely denied, on the grounds that shielding internal
government deliberations in this context does not serve the
public's interest in honest, effective government." (citations
omitted)
Hinckley v. United States, 140 F.3d 277, 285 (D.C. Cir. 1998)
See Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 154, 164 (D.D.C. 1999)
(party seeking to overcome deliberative process privilege with a showing of
government misconduct must provide an adequate factual basis for the belief.) And
see Chaplaincy of Full Gospel Churches v. Johnson, CV No. 99-2945, p. 5 (D.D.C.
2003) (Memorandum Opinion) (When there is any reason to believe that government
misconduct has occurred, however, our court of appeals has made clear that the
deliberative-process privilege disappears altogether.); and at 5 (To invoke the
government-misconduct exception, the party seeking discovery must provide an
adequate factual basis for believing that the requested discovery would shed light upon
government misconduct.)
20
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 25
Page
of 26
25 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
CONCLUSION
For the foregoing reasons, plaintiff Jay Anthony Dobyns respectfully requests
that the Special Master order defendant United States and the Justice Department to
produce the Office of Professional Responsibility file and the current trial counsel
documents relating to witness interviews and other evidence of crimes or fraud,
including the interviews of attorneys accused of misconduct, along with the remaining
declarations required by the Special Masters April 13, 2015 Order.
RESPECTFULLY SUBMITTED this 11th day of June, 2015.
/s/ James B. Reed
James B. Reed
BAIRD WILLIAMS & GREER, LLP
6225 North 24th Street, Suite 125
Phoenix, Arizona 85016
Telephone: (602) 445-7720
Attorneys for Jay A. Dobyns
21
Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
Document
Document
401 *SEALED*
442 Filed 08/12/15
Filed 06/11/15
Page 26
Page
of 26
26 of 26
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
The undersigned hereby certifies that on June 11, 2015, a copy of the foregoing
Plaintiff Jay Anthony Dobyns Reply Memorandum re Compliance and Applicability of
Privileges and Exceptions Re Special Masters April 13, 2015 Order was served on
counsel for Defendant electronically, to Robert Kirschman, Civil Division, Commercial
Litigation Branch, United States Department of Justice, 1100 L St. NW, Washington
DC 20005.
22