Hunton & Williams v. U.S. Dept. of Justice

• Decision Date: 04 January 2010
• Docket Number: No. 08-1635.,08-1635.
• Citation: 590 F.3d 272
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: HUNTON & WILLIAMS, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellee.

590 F.3d 272

HUNTON & WILLIAMS, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellee.

No. 08-1635.

United States Court of Appeals, Fourth Circuit.

Argued: September 22, 2009.

Decided: January 4, 2010.

ARGUED: Edward Peter Noonan, Hunton & Williams, LLP, Richmond, Virginia, for Appellant. Robert P. McIntosh, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: John Jay Range, Hunton & Williams, LLP, Washington, DC, for Appellant. Dana J. Boente, Acting United

States Attorney, Richmond, Virginia, for Appellee.

Before WILKINSON and MICHAEL, Circuit Judges, and IRENE M. KEELEY, United States District Judge for the Northern District of West Virginia, sitting by designation.

Affirmed in part, vacated and remanded in part by published opinion. Judge WILKINSON wrote the majority opinion, in which Judge KEELEY joined. Judge MICHAEL wrote a dissenting opinion.

OPINION

WILKINSON, Circuit Judge:

This appeal centers on communications between the U.S. Department of Justice ("DOJ") and a telecommunications company, in which the company allegedly lobbied DOJ to take its side in litigation with a client of law firm Hunton and Williams, LLC ("Hunton"). The district court upheld DOJ's decision to deny Hunton's request under the Freedom of Information Act, 5 U.S.C. § 552 (2006), ("FOIA") for records of those communications. Hunton contends that it is entitled to the records, regardless of whether they satisfied the requirements of the so-called common interest doctrine, which enables parties with a shared legal interest to pursue a joint legal strategy. DOJ argues not only that common interest communications are exempt from FOIA, but that we should defer to the agency's invocation of the common interest doctrine without demanding any serious inquiry into the validity of its common interest claims.

Both sides have a point, though only a partial one. DOJ argues persuasively that FOIA does not strip the government of its civil discovery privileges or its valuable right to partner with other parties in litigation or in anticipation of the same. At the same time, however, Hunton correctly contends that common interest assertions by government agencies must be carefully scrutinized. For the doctrine to apply, an agency must show that it had agreed to help another party prevail on its legal claims at the time of the communications at issue because doing so was in the public interest. It is not enough that the agency was simply considering whether to become involved.

I.

A.

This FOIA action grows out of an earlier patent suit brought by New Technology Products, Inc., ("NTP"), a client of Hunton's, against Research in Motion, Ltd., ("RIM"), manufacturer of BlackBerry communications devices. In August 2003, following an earlier jury finding that RFM had infringed various patents held by NTP, the district court in the BlackBerry litigation entered an order enjoining RIM's use of the patented technology. Enforcement of the injunction was stayed, however, pending RIM's appeal, which ultimately resulted in partial affirmation and a remand to the district court. NTP, Inc. v. Research In Motion, Ltd., 418 F.3d 1282, 1326 (Fed.Cir.2005). District court proceedings did not resume until October 2005. Shortly after the jury reached its verdict, proceedings to reexamine NTP's patents were initiated before the United States Patent and Trademark Office (PTO).

While RFM's appeal in the BlackBerry litigation was pending, RIM began contacting officials from various executive branch departments to express its concern about the injunction. On March 10, 2005, several DOJ attorneys, including John Fargo, Director of the Intellectual Property Staff in the Commercial Litigation Branch of DOJ's Civil Division, met with RIM attorney Herbert Fenster. At their meeting, Fenster expressed his opinion that RIM and the federal government had a mutual interest in opposing the BlackBerry injunction because the injunction would interfere with the federal government's BlackBerry use. The United States government is the largest single user of BlackBerry devices, and as a matter of law, it cannot be subject to injunctive relief against the use of patented technology. 28 U.S.C. § 1498(a) (2006); Trojan, Inc. v. Shat-R-Shield, Inc., 885 F.2d 854, 856-57 (Fed.Cir.1989). Fenster offered to furnish DOJ with information and drafts of affidavits RTM was then in the process of obtaining as part of its efforts to overturn the injunction. DOJ contends that, immediately after the meeting, Fenster and Fargo orally agreed to exchange documents on a confidential "common interest" basis.

Fenster continued to discuss the BlackBerry litigation with Fargo in the months that followed, supplying information, documents, and declarations for DOJ's use. The first time the phrase "common interest" appeared in any written communication between RTM and DOJ was October 6, 2005, when Fargo added the disclaimer "protected by joint and common interest privilege" to an email reply he sent to Fenster.

On November 8, 2005, two weeks after proceedings in the BlackBerry patent litigation resumed in district court, DOJ filed a Statement of Interest and requested that the matter be stayed for 90 days. It argued that the injunction contemplated by the district court could operate as a de facto injunction against the government's BlackBerry use and that the government needed more time to consider the issue. According to Fargo, the decision to file the Statement was not made until shortly before the actual filing. On November 10, 2005, two days after the Statement of Interest was filed, Fargo and Fenster signed a written common interest agreement on behalf of DOJ and RTM, which stated that their common interest relationship had come into being on February 4, 2005. On February 1, 2006, DOJ filed a motion to intervene in the district court proceedings, which was granted. The litigation settled the next month.

At some point prior to DOJ's intervention, NTP became concerned about communications between RIM and the PTO in connection with the patent reexamination proceedings, and in January 2006, counsel for NTP filed a FOIA request with the PTO and its parent agency, the Department of Commerce, to obtain any such communications. See Rein v. U.S. Patent & Trademark Office, 553 F.3d 353, 362 (4th Cir.2009). In the wake of that request, Hunton learned of the common interest agreement between DOJ and RIM. Shortly after the BlackBerry litigation settled, Hunton filed a second FOIA request, this time with DOJ, seeking records of communications between RIM and DOJ, as well as related communications between DOJ and other agencies such as the PTO. DOJ withheld roughly half of the documents Hunton requested, and Hunton challenged the withholding of those documents that DOJ claimed were protected from disclosure by Exemption 5 of FOIA. 5 U.S.C. § 552(b)(5). Following an in camera inspection of a substantial portion of the documents DOJ withheld, the district court in Hunton's DOJ FOIA suit granted DOJ's motion for summary judgment for all but three of the documents at issue.

B.

The question of whether a district court properly granted the government summary judgment in a FOIA action is one of law, which we review de novo. Ethyl Corp. v. U.S. E.P.A., 25 F.3d 1241, 1246 (4th Cir.1994). Whether a document fits within one of FOIA's prescribed exemptions is also a matter of law, unless the legal conclusion is based upon factual findings, which we review for clear error. Id.

FOIA provides that federal agencies shall "upon request for records which reasonably describes such records ... make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). The Act specifies nine exemptions from its regime of disclosure, however. 5 U.S.C. § 552(b). In general, these exemptions are to be narrowly construed. Bowers v. U.S. Dept. of Justice, 930 F.2d 350, 354 (4th Cir.1991). The burden of demonstrating that a requested document falls under an exemption rests on the government. 5 U.S.C. § 552(a)(4)(B); City of Virginia Beach, Va. v. U.S. Dep't of Commerce, 995 F.2d 1247, 1252 (4th Cir.1993).

Exemption 5 provides that FOIA disclosure rules do not apply to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). "To qualify, a document must thus satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it," such as the attorney-client, deliberative process, or attorney work product privileges. Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001).

The district court's finding that the documents now at issue are of a character qualifying them for the privileges asserted by DOJ is not challenged in this appeal. The only question we address is whether the district court erred in finding that the materials sought by Hunton qualify as "inter-agency or intra-agency memorandums or letters."

II.

For more than 40 years, the Freedom of Information Act has provided a way for the American people to keep a watchful eye on their government. "The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). The Act discourages agencies from keeping in the dark actions that might not withstand the light of day. For that reason, "disclosure, not secrecy, is the dominant purpose of the Act." Klamath, 532 U.S. at 8, 121 S.Ct. 1060.

FOIA was the first in a series of laws adopted between 1966 and 1976 that were designed...