21-1266 American Oversight v. U.S. Dep’t of Just. In the United States Court of Appeals for the Second Circuit AUGUST TERM 2021 No. 21-1266-cv AMERICAN OVERSIGHT, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION, Defendants-Appellees. __________ On Appeal from the United States District Court for the Southern District of New York __________ ARGUED: MAY 18, 2022 DECIDED: AUGUST 16, 2022 __________ Before: RAGGI, WESLEY, and CARNEY, Circuit Judges. ________________ In this Freedom of Information Act (“FOIA”) lawsuit filed in the Southern District of New York (Schofield, J.), plaintiff seeks to compel defendants to produce notes and memoranda memorializing interviews conducted by federal prosecutors and law enforcement agents in the course of a criminal investigation. Plaintiff now appeals an award of summary judgment in favor of defendants, arguing that the district court erred in holding that the requested documents are “attorney work product” shielded from production by FOIA Exemption 5. It maintains that, at least as to interviewed “targets” and “subjects” of the investigation, defendants waived attorney- work-product protection for the requested documents by having already disclosed any protected information contained therein to potential litigation adversaries during their interviews. This misperceives both the work-product privilege and what constitutes waiver by disclosure in the circumstances of this case. AFFIRMED. KATHERINE M. ANTHONY (John E. Bies, Emma Lewis, Sarah Colombo, on the brief), American Oversight, Washington, DC, for Plaintiff-Appellant. SARAH S. NORMAND, Assistant United States Attorney (Christopher Connolly, Assistant United States Attorney, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Defendants-Appellees. REENA RAGGI, Circuit Judge: Plaintiff American Oversight brought this Freedom of Information Act (“FOIA”) suit in the United States District Court for 2 the Southern District of New York (Lorna G. Schofield, Judge) to compel defendants, the United States Department of Justice (“DOJ”) and the Federal Bureau of Investigation (“FBI”), to disclose notes and memoranda memorializing interviews conducted by federal prosecutors and law enforcement agents in the course of a criminal investigation into possible campaign-finance-law violations, and subsequent obstruction of justice, by persons associated with the Donald J. Trump 2016 presidential campaign (the “Investigation”). 1 On the parties’ cross-motions for summary judgment, the district court ruled in favor of defendants, holding that the documents at issue were attorney work product, shielded from production by FOIA Exemption 5. See American Oversight v. DOJ, No. 19-CV-8215, 2021 WL 964220 (S.D.N.Y. Mar. 15, 2021). In appealing that judgment, American Oversight now narrows its production demand. It no longer seeks production of all interview notes and memoranda generated during the Investigation. Rather, it seeks such documents only for interviews with “targets” or “subjects” of the Investigation. 2 It argues that because such persons were potential litigation adversaries of defendants at the time of the interviews, defendants necessarily waived any work-product 1 Because the obstruction investigation appears to have grown out of the campaign- finance-law investigation, we refer to them as one in this opinion. 2 As American Oversight acknowledges, “targets” and …
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