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BAIRD, WILLIAMS & GREER, L.L.P.
6225 NORTH 24TH STREET, SUITE 125
PHOENIX, ARIZONA 85016
TELEPHONE (602) 256-9400
FACSIMILE (602) 271-9308

James B. Reed (AZ Bar No. 014015)
Attorneys for Plaintiff Jay Anthony Dobyns
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
JAY ANTHONY DOBYNS,
CASE NO. 08-700C
Plaintiff,
vs.
(Judge Francis M. Allegra)
THE UNITED STATES,
Defendant.

(Judge John M. Facciola –
Special Master)

PLAINTIFF JAY ANTHONY DOBYNS’
REPLY MEMORANDUM RE COMPLIANCE AND
APPLICABILITY OF PRIVILEGES AND EXCEPTIONS
RE SPECIAL MASTER’S APRIL 13, 2015 ORDER

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TABLE OF CONTENTS
Page
TABLE OF CONTENTS…………………………………………………………………….i
TABLE OF AUTHORITIES……………………..………………………………………….iii
I.

Summary of argument………………………………………………………………1

II.

Several themes have emerged as dominant.

III.

A.

The February 8, 2011 Amended Protective Order cures
any concerns by DOJ that legitimate governmental or
personal privacy considerations will impaired by public
viewing of the facts and documents……………………………………..3

B.

Defendant cannot defend its broad assertion of attorney client
and law enforcement privileges and attorney work product
protection regarding witness interviews………………………………….4

C.

Factual portions of documents are not protected by the
deliberative process privilege………………………………………………5

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…………………9

E.

Defendant’s arguments as to the chilling effect that
disclosure of OPR and recent attorney documents will cause,
underestimates the ability of the courts to make proper
decisions on a case by case basis……………………………………….10

The deliberative process privilege does not assist defendant
to the categorical extent sought.
A.

The privilege is rooted in narrow origins………………………………….12

B.

The deliberative process privilege is narrowly construed………………13

i

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TABLE OF CONTENTS, cont’d
Page
I.

The government’s characterization of the deliberative process
privilege misapprehends it.
A.

“Decisions” are intended to be limited to formal proceedings
or policy deliberations………………………………………………………..16

B.

Personal interests of particular employees in avoiding
disclosure of information do not qualify for the privilege…………………17

C.

The misconduct exception to the privilege extends beyond
misconduct in the deliberative process itself, to any
documents shedding light on government misconduct
relevant to the underlying proceeding prompting the
document request……………………………………………………………19

CONCLUSION………………………………………………………………………………..21

ii

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TABLE OF AUTHORITIES
Cases:

Page(s)

Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 154 (D.D.C. 1999)………….20
Bank of Dearborn v. Saxon, 244 F.Supp. 394 (E.D.Mich. 1965)………..13, 14, 15, 20
Chaplaincy of Full Gospel Churches v. Johnson, CV No. 99-2945, p. 5
(D.D.C. 2003) (Memorandum Opinion)………………………………………………….20
Department of the Interior and Bureau of Indian Affairs v.
Klamath Water Users Protective Association, 532 U.S. 1 (2001)………………..18-19
First Eastern Corporation v. Mainwaring, 21 F.3d 465 (D.C. Cir. 1994)…………….13
Founding Church of Scientology of Wash., D.C., Inc. v. Nat'l Sec. Agency,
610 F.2d 824 (D.C. Cir. 1979)…………………………………………………………….13
Hinckley v. United States, 140 F.3d 277 (D.C. Cir. 1998)…………………………..7, 20
In re Franklin National Bank Securities Litigation, 478 F. Supp. 577
(E.D.N.Y. 1979)………………………………………………………..6, 10, 11, 15, 18, 19
In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997)……………………..6, 10-11, 13, 19
Kaiser Aluminum & Chemical Corporation v. U.S., 157 F.Supp. 940
(Cl. Ct. 1958)……………………………………………………………………….12, 13, 18
McPeek v. Ashcroft, 202 F.R.D. 332 (D.D.C. 2001)……………………………………..8
Morley v. Central Intelligence Agency, 508 F.3d 1108 (D.C. Cir. 2007)…………..8, 13
National Labor Relations Board et al. v. Sears, Roebuck & Co.,
421 U.S. 132 (1975)…………………………………………………………….8, 12, 17, 20
Playboy Enterprises, Inc. v. Department of Justice, 677 F.2d 931
(D.C. Cir. 1982)…………………………………………………………………..……….9, 11
Southwest Center for Biological Diversity and Robin Silver, M.D.,
v. United States Department of Agriculture, 170 F. Supp. 2d 931 (D. Ariz. 2000)…….7
Taxation with Representation Fund v. Internal Revenue Service,
646 F.2d 666 (D.C. Cir. 1981)……………………………………………………..13, 16-19

iii

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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 Master’s Order
dated May 14, 2015, Document 379, submits the following reply memorandum
regarding plaintiff’s 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 Master’s 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

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between lawyers at the Department of Justice and individuals merely conferring in a
witness capacity. Those interviews should be entirely discoverable.
To that extent, notes and memoranda disclosing admissions by those witnesses
to the Department of Justice about whether, inter alia, Civil Division attorneys
encouraged or assisted Charles Higman to make one or both telephone calls to
Christopher Trainor, are simply notes of witness meetings that relate to underlying
allegations and should be discoverable. Such communications should have been
undertaken only at a deposition of the Justice Department attorneys implicated in the
misconduct, especially since some of the communications may relate to instances of
crime or fraud that has not yet been detected or alleged to the Court.
For instance, if one of the attorneys did encourage or assist Higman to contact
or threaten Trainor, any awareness by the current trial team of those facts similarly
requires reporting to the Court, just as with the underlying allegations of required
reporting of misconduct. The fact that the Justice Department improperly chose to
conduct such witness interviews where such relevant information was discussed, and
did so outside the presence of the Special Master and the plaintiff and his counsel
means that the Justice Department’s notes and emails are the only method of
discovering what was said about the crime or fraud. Thus, the crime-fraud exception
applies to privileges and protections otherwise available to defendant.

Those communications might
have been protected; but not so for the Justice Department, which serves the American
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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 Department’s 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 plaintiff’s
witness Christopher Trainor, (2) threatened Trainor’s career if he reported the threats
to this Court; (3) encouraged or directed ATF’s 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.

Several themes have emerged as dominant.
A. The February 8, 2011 Amended Protective Order cures any
concerns by DOJ that legitimate governmental or personal
privacy considerations will impaired by public viewing of the
facts and documents.

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

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defendant has offered as a reason to protect documents. Indeed, the original
protective order arose in August 2010, during the deposition of ATF witness William
Newell to protect his personnel files, and then was expanded at the request of the
government to include any matters covered by the Privacy Act or which related to
ongoing law enforcement investigations. The Justice Department sourced the draft of
a protective order, then requested the Amended Protective Order, and now complains
that the Order is valueless when it comes to any of the privileges at issue in this
proceeding. The Justice Department should not be heard to complain about the
deficiencies of a protective order which prevents the very outcome upon which it bases
it deliberative process privilege claim – exposure to the general public. The Amended
Protective Order demonstrates that such will not occur here.
Defendant offers no rationale for why the Amended Protective Order does not
satisfy each and every privacy concern, especially when in camera review can precede
the disclosure of each document to plaintiff. This issue concluded four years ago by
the clear language of the Amended Protective Order.
B. Defendant cannot defend its broad assertion of attorney client
and law enforcement privileges and attorney work product
protection regarding witness interviews.
Defendant has failed to overcome the extensive law cited by plaintiff in his
opening memorandum, that the attorney-client and law enforcement privileges and the
attorney work product protections are limited in scope and are not persuasive or
insurmountable here, particularly where the attorneys accused of misconduct are mere
witnesses when questioned about the allegations now at issue.

4

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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 plaintiff’s opening memorandum, or that is
unknown to either plaintiff or the Court. Based on the Valarie Bacon incident and the
recent pleading series regarding defendant’s attempted clawback of documents,
reasons exist to believe that DOJ’s 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
ATF’s 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 plaintiff’s ability to question and monitor,
along with the right of the Special Master to observe the questioning. This is not
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inconsistent with the Court’s 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 ATF’s criminal investigation Higman’s 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:
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The Ninth Circuit has rejected attempts to characterize
information as pre-decisional by reference "to a decision
that possibly may be made at some undisclosed time in the
future." Assembly, 968 F.2d 916. Without this limitation, the
Assembly court feared that "any memorandum always will
be 'predecisional.'" Id. Here, the Court finds that the
potential future use of Reynolds' data is too remote to
render the requested material predecisional. See also
Coastal States Gas Corp. v. Department of Energy, 199
U.S. App. D.C. 272, 617 F.2d 854, 868 (D.C. Cir. 1980)
("Characterizing these documents as 'predecisional' simply
because they play into an ongoing audit process would be a
serious warping of the meaning of the word.").
Southwest Center for Biological Diversity and Robin Silver, M.D., v. United States
Department of Agriculture, 170 F. Supp. 2d 931, 941 (D. Ariz. 2000).1 The District of
Columbia Circuit Court agrees that no pre-decisional presumption operates:
"Accordingly, to approve exemption of a document as predecisional, a court must be able to pinpoint an agency
decision or policy to which the document contributed." [….]
Communications are "deliberative" if they are "part of the
agency give-and-take by which the decision itself is made.
The agency must establish what deliberative process is
involved, and the role played by the documents in issue in
the course of that process."
Hinckley v. United States, 140 F.3d 277, 284 (D.C. Cir. 1998).
Factual questionnaires and interview notes by Civil Division’s current counsel of
the attorneys and other personnel involved are simply interviews of witnesses, not

1

Defendants have only raised the possibility that release of
the information could adversely affect one study of the
goshawk. They have not shown that release "would actually
inhibit" the decision-making process, and so have not
carried their burden of showing that Reynolds' data falls
within the privilege.
Southwest Center for Biological Diversity, 170 F. Supp. 2d at 940.
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inter-agency communications, similar to the NLRB decision-making process upon
which McPeek v. Ashcroft, 202 F.R.D. 332, 334 (D.D.C. 2001), decision2 relies: “A
member of the staff of the Regional Office then conducts an investigation of the
charge, which may include interviewing witnesses and reviewing documents. 29 CFR
§ 101.4.” National Labor Relations Board et al. v. Sears, Roebuck & Co., 421 U.S. 132,
139 (1975). See Morley v. Central Intelligence Agency, 508 F.3d 1108, 1127 (D.C. Cir.
2007), (“factual material that does not reveal the deliberative process is not protected
by this exemption.") vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984)
(citing Paisley v. CIA, 229 U.S. App. D.C. 372, 712 F.2d 686, 698 (D.C. Cir. 1983)).
The party claiming the deliberative process privilege is required to sever the
deliberative portions of the memorandum from the factual, discoverable parts:
The "deliberative process privilege" of Exemption 5 protects
from disclosure opinions and recommendations on which
governmental decisions are based. (citations omitted) The
exemption does not protect "purely factual material
appearing in ... documents in a form that is severable
without compromising the private remainder of the
documents." EPA v. Mink, 410 U.S. at 91, 93 S. Ct. at 837.

2

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 Master’s McPeek decision. As clear and forcefully articulated as the Special
Master’s 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.
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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.

3

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.

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The deliberative process privilege exists in recognition of the unique functions
undertaken by the federal government, which ordinary citizens do not incur, and which
require accommodation in the scheme of evidentiary privileges. However, that
accommodation is not meant to disproportionately advantage the government in court,
but merely to bring its burdens even with private litigants:
The assumption is that "government, no less than the
citizen, needs open but protected channels for the kind of
plain talk that is essential to the quality of its functioning."
(citations omitted).
In re Franklin National Bank Securities Litigation, 478 F. Supp. at 581. Accordingly,
defendant is owed no more protections for internal emails and communications related
to employee misconduct than is a private, corporate litigant whose emails on that topic
would be entirely discoverable. There is nothing unique to government’s functioning
from hiring, firing or disciplining employees, and therefore there is no fair inclusion of
such topics and facts under the deliberative process privilege for the government.
E. Defendant’s arguments as to the chilling effect that disclosure of
OPR and recent attorney documents will cause, underestimates
the ability of the courts to make proper decisions on a case by
case basis.
Defendant consistently worries that the Special Master will open the door to
accountability of Justice Department attorneys through greater awareness of attorney
conduct – and misconduct. What has emerged from this case is that a turn of the tide
may benefit DOJ by reminding it that its attorneys must comport themselves in
accordance with ethical rules and civil and criminal laws, a net positive result:
For example, where there is reason to believe the
documents sought may shed light on government
misconduct, "the privilege is routinely denied," on the
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grounds that shielding internal government deliberations in
this context does not serve "the public's interest in honest,
effective government." Texaco Puerto Rico, Inc. v.
Department of Consumer Affairs, 60 F.3d 867, 885 (1st
Cir.1995); see also In re Comptroller of the Currency, 967
F.2d at 634 ("the privilege may be overridden where
necessary ... to `shed light on alleged government
malfeasance'") (quoting Franklin Nat'l Bank, 478 F.Supp. at
582); Wetlaufer, supra, at 852 n. 25, 855 (listing cases).
In re Sealed Case, 121 F.3d at 738. The public’s interest in proper government
functioning benefits from a litigant exposuring of misconduct by the government:
Strong competing interests must be weighed against the
government's interest in nondisclosure. Foremost is the
interest of the litigants, and ultimately of society, in accurate
judicial fact finding. See, e. g., Bank of Dearborn v. Saxon,
244 F.Supp. 394, 401-403 (E.D.Mich.1965), aff'd, 377 F.2d
496 (6th Cir. 1967) ("the real public interest under such
circumstances is not the agency's interest in its
administration but the citizen's interest in due process") [….]
In re Franklin National Bank Securities Litigation, 478 F. Supp. at 582.
Even if the Court does not anticipate that accountability in this case will lead the
Justice Department to be required to deal with more good faith with federal courts in
the future, nevertheless, the apocalyptic access to internal Justice Department
communications is unlikely where the courts continue to use case by case discretion:
The official information privilege requires a fresh balancing
of the competing interests in each case where the privilege
is asserted. Holding that the unique circumstances of this
case require the disclosure of the confidential section of the
FNB Examination Reports does not insure that all future
reports will be similarly disclosed.
Id. at 586. Indeed, honorable and ethical employees who see their conduct – and
advice – in a favorable light will not mind airing those insights or facts publicly:

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The probability that an agency employee will be inhibited
from freely advising a decision-maker for fear that his
advice, if adopted, will become public is slight. First, when
adopted, the reasoning becomes that of the agency and
becomes its responsibility to defend.
National Labor Relations Board, 421 U.S. at 161.
III.

The deliberative process privilege does not assist defendant to the
categorical extent sought.
A. The privilege is rooted in narrow origins.

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 Administration’s (“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 GSA’s 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

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consultative functions of government that the privilege of non-disclosure protects.” Id.
at 946. That case-specific demand permeates those cases that follow.
B. The deliberative process privilege is narrowly construed.4
The deliberative process privilege is far from absolute.5 One of the first cases to
recognize important limitations of this privilege was Bank of Dearborn v. Saxon, 244
F.Supp. 394 (E.D.Mich. 1965), where the court examined the attempted use of the
privilege to prevent disclosure of documents related to bank relocation and expansion
4

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

Notwithstanding these significant policy considerations underscoring
the necessity that materials reflecting the deliberative process be
protected, this exception to the general disclosure mandate of FOIA
should be construed "as narrowly as consistent with efficient Government
operation." EPA v. Mink, 410 U.S. 73, 87, 93 S. Ct. 827, 836, 35 L. Ed.
2d 119 (1973) (quoting from legislative analysis and discussions of
Exemption 5, S.Rep.No. 813, p. 9). See also Coastal States, 617 F.2d at
862.
Taxation with Representation Fund v. Internal Revenue Service, 646 F.2d 666, 667
(D.C. Cir. 1981); see also Morley v. Central Intelligence Agency, 508 F.3d 1108, 11141115 (D.C. Cir. 2007), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984).
(“Under FOIA, ‘exemptions from disclosure must be narrowly construed,’ id. at 823,
and ‘'conclusory and generalized allegations of exemptions' are unacceptable,’”) citing
Founding Church of Scientology of Wash., D.C., Inc. v. Nat'l Sec. Agency, 197 U.S.
App. D.C. 305, 610 F.2d 824, 830 (D.C. Cir. 1979) (quoting Vaughn, 484 F.2d at 826).

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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
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& Ernst, the comments in the confidential section will
constitute critical evidence.
In re Franklin National Bank Securities Litigation, 478 F. Supp. at 586-587.
The Eastern District of New York considered a case in which government
officials attempted to shield from disclosure documents that potentially contained
information about their own wrongdoing. There too the court noted the importance of a
fact-intensive inquiry by the court for each particular case: “The official information
privilege is a qualified privilege; it is not absolute. ‘The privilege is a discretionary one
that depends upon ad hoc considerations of competing policy claims.’” In re Franklin
National Bank Securities Litigation, 478 F.Supp. at 582 (citations omitted). Foremost
among those competing interests was “accurate judicial fact finding” and the citizen’s
interests of due process. Id. This case was one of the first where the court recognized
the inapplicability of the privilege when government malfeasance is involved:
Government documents are protected from discovery so
that the public will benefit from more effective government;
when the public's interest in effective government would be
furthered by disclosure, the justification for the privilege is
attenuated. Thus, for example, where the documents
sought may shed light on alleged government malfeasance,
the privilege is denied.
Id. at 582 (citing Bank of Dearborn v. Saxon, 244 F.Supp. 394, 401-03
(E.D.Mich.1965), aff'd., 377 F.2d 496 (6th Cir. 1967)). The court discussed its
examination of the particular documents at issue, emphasizing the case-specific
approach: “[The privilege] requires a fresh balancing of the competing interests in each
case where the privilege is asserted.” Id. at 586. The court found in favor of disclosure,
recognizing the concrete need and the lack of alternate sources for the information:

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“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 government’s characterization of the deliberative process
privilege misapprehends it.
A. “Decisions” are intended to be limited to formal proceedings or
policy deliberations.

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 §
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1 et seq. of the National Labor Relations Act, as amended
by the Labor Management Relations Act, 1947, 61 Stat.
136, 29 U.S.C. § 151 et seq., the process of adjudicating
unfair labor practice cases begins with the filing by a private
party of a "charge," §§ 3 (d) and 10 (b), 29 U.S.C. §§ 153
(d) and 160 (b); 29 CFR § 101.2 (1974); (citations omitted).
Although Congress has designated the Board as the
principal body which adjudicates the unfair labor practice
case based on such charge, 29 U.S.C. § 160, the Board
may adjudicate only upon the filing of a "complaint"; […]
National Labor Relations Board et al. v. Sears, Roebuck & Co., 421 U.S. at 138. The
decisions of which the NLRB decision speaks are administrative law decisions, not
logistical or personnel decisions:
The appeals process affords the General Counsel's Office in
Washington some opportunity to formulate a coherent policy,
and to achieve some measure of uniformity, in enforcing the
labor laws.
National Labor Relations Board, 421 U.S. at 142. The focus in defining the deliberative
process privilege was on policy formulation, not logistical and personnel discipline:
Exemption 5, properly construed, calls for "disclosure of all
'opinions and interpretations' which embody the agency's
effective law and policy, and the withholding of all papers
which reflect the agency's group thinking in the process of
working out its policy and determining what its law shall be."
Davis, The Information Act: A Preliminary Analysis, 34 U. Chi.
L. Rev. 761, 797 (1967); Note, Freedom of Information Act
and the Exemption for Intra-Agency Memoranda, 86 Harv. L.
Rev. 1047 (1973).
National Labor Relations Board, 421 U.S. at 153.
B. Personal interests of particular employees in avoiding disclosure
of information do not qualify for the privilege.

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Personnel decisions are presumptively excluded from the types of decisions
protected by the deliberative process privilege. As the Court of Federal Claims in
Kaiser Aluminum articulated the deliberative process privilege:
The fact that the author is dead is immaterial here. It is not
a privilege to protect the official but one to protect free
discussion of prospective operations and policy.
Kaiser Aluminum & Chemical Corporation v. United States, 157 F. Supp. 939, 947 (Cl.
Ct. 1958). Apart from the privilege’s inapplicability to mere agency operational matters,
the privilege does not protect the communications of parties who are advocating for
their own self-interests. Department of the Interior and Bureau of Indian Affairs v.
Klamath Water Users Protective Association, 532 U.S. 1, 2-3 (2001). The expression
of self-interests takes the communication out of the deliberative process privilege:
As mentioned already, consultants whose communications
have typically been held exempt have not been
communicating with the Government in their own interest or
on behalf of any person or group whose interests might be
affected by the Government action addressed by the
consultant. In that regard, consultants may be enough like
the agency's own personnel to justify calling their
communications "intra-agency." The Tribes, on the contrary,
necessarily communicate with the Bureau with their own,
albeit entirely legitimate, interests in mind. While this fact
alone distinguishes tribal communications from the
consultants' examples recognized by several Courts of
Appeals, the distinction is even sharper, in that the Tribes
are self-advocates at the expense of others seeking
benefits inadequate to satisfy everyone.
Department of the Interior and Bureau of Indian Affairs, 532 U.S. at 12.
Interviews with DOJ personnel accused of wrongdoing fit into this same mold of
self-interested communications having no relationship to the generation of policy or
formal decision or rule-making. The privilege is unavailable to shield those documents.
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C. The misconduct exception to the privilege extends beyond
misconduct in the deliberative process itself, to any documents
shedding light on government misconduct relevant to the
underlying proceeding prompting the document request.
Contrary to defendant’s claim, the misconduct exception is not so limited as to
allow only those instances of misconduct core to the deliberation to escape disclosure.
There is in addition, in some circumstances, a public
interest in opening for scrutiny the government's decision
making process. [….] Government documents are protected
from discovery so that the public will benefit from more
effective government; when the public's interest in effective
government would be furthered by disclosure, the
justification for the privilege is attenuated. Thus, for
example, where the documents sought may shed light on
alleged government malfeasance, the privilege is denied.
In re Franklin National Bank Securities Litigation, 478 F. Supp. at 582. The D.C. Circuit
follows this rule: “the privilege disappears altogether when there is any reason to
believe government misconduct occurred.” In re Sealed Case, 121 F.3d 729, 746 (D.C.
Cir. 1997). Here DOJ is the defendant, and OPR is its subsidiary. A defendant cannot
protect documentation of misconduct with the deliberative process privilege:
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.
Indeed it might be said with considerable force that the
issue before us, a charge of sham and subterfuge
employed by those in high places, is the very kind of issue
with respect to which an aggrieved administrator might well
insist that his entire file in the matter under scrutiny (save
for what might properly be called business secrets) be
spread on the public record so that the falsity of the charge
might be made manifest of all who cared to read.
Bank of Dearborn v. Saxon, 244 F. Supp. 394, 402 (E.D. Mich. 1965).
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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 public’s interest in fair and honest governance and plaintiff Dobyns need for OPR’s
and Civil Division’s documents on the one hand, with the Justice Department’s 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)

6

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.”)

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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 Master’s 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

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CERTIFICATE OF ELECTRONIC SERVICE

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 Master’s 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.

/s/ James B. Reed
James B. Reed

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