Common Interest Doctrine Defeats FOIA Claim

The United States Court of Appeals for the District of Columbia Circuit has held that information shared under a common-interest agreement is exempt from FOIA disclosure

We hold that when the government exchanges attorney work product with aligned parties under a common-interest agreement rooted in shared interests and a need for confidentiality, the shared work product qualifies as “intraagency” material under Exemption 5. Our conclusion accords with the only other court of appeals’ decision to consider the  issue. See Hunton & Williams v. U.S. Dep’t of Just., 590 F.3d 272 (4th Cir. 2010). Because the district court here reached the opposite conclusion, we reverse its decision in principal part.

The case

Shortly after the 2020 elections, Georgia enacted the Election Integrity Act, known in the state as SB 202. See 2021 Ga. Laws Act 9. While Georgia touted SB 202 as a much-needed update to election procedures, various organizations thought otherwise. From their perspective, the legislation targeted “every aspect of the voting process . . . to make absentee, early, and election-day voting more difficult.” Compl. ¶ 4, The New Ga. Project v. Raffensperger, No. 21-cv1229 (N.D. Ga. Mar. 25, 2021), Dkt. No. 1.

Seven organizations separately filed suit in the Northern District of Georgia to challenge various provisions of SB 202. See Georgia v. U.S. Dep’t of Just., 657 F. Supp. 3d 1, 6 n.1 (D.D.C. 2023). While each of the seven lawsuits seeks to invalidate SB 202 as violating voters’ rights under federal law, they raise varying claims. Five organizations raise claims of race discrimination under Section 2 of the Voting Rights Act (VRA) along with separate claims under the Constitution, the Americans with Disabilities Act, and the Rehabilitation Act. The remaining two suits raise non-race-based statutory and constitutional claims.

Shortly after the private organizations filed their seven suits, the United States Department of Justice (DOJ) initiated its own challenge to SB 202 in the same court. See Compl., United States v. Georgia, No. 21-cv-2575 (N.D. Ga. June 25, 2021), Dkt. No. 1. DOJ brought a race-discrimination claim under Section 2 of the VRA “to enforce the voting rights guaranteed by the Fourteenth and Fifteenth Amendments to the United States Constitution.” Id. ¶ 3. DOJ’s suit, along with the other seven challenges, were assigned to the same judge.

DOJ soon began communicating with the other plaintiffs challenging SB 202 in the same court. The parties’ mutual engagement is standard practice in complex civil litigation when parties with aligned interests coordinate for efficiency and simplicity—often with the court’s encouragement or at its direction. See Manual for Complex Litigation (Fourth) §§ 10.22–10.221 (2004).

On July 28, 2021, DOJ and six of the seven plaintiff organizations—including all five organizations raising claims of race discrimination—formalized their entry into a common interest agreement for sharing communications about the litigation.

The court

Georgia does not dispute that those kinds of materials fall squarely within the attorney work-product privilege. Georgia’s argument instead is that DOJ waived the privilege by sharing the documents with aligned litigation partners. That is incorrect.

“[W]hile the mere showing of a voluntary disclosure to a third person will generally suffice to show waiver of the attorney-client privilege, it should not suffice in itself for waiver of the work product privilege.” A.T.&T., 642 F.2d at 1299 (emphasis omitted); see Deloitte LLP, 610 F.3d at 139. Even as to the attorney-client privilege, in fact, there is no waiver if the disclosure occurs under the rubric of a common interest arrangement. See Restatement (Third) of the Law Governing Lawyers § 76. Here, accordingly, even if the case involved the attorney-client privilege rather than the attorney work-product privilege, disclosure of privileged matter to other parties pursuant to the common-interest agreement would not constitute a waiver.

The absence of any waiver is all the more clear with the attorney work-product privilege. With that privilege, “disclosing work product to a third party can waive protection if such disclosure, under the circumstances, is inconsistent with the maintenance of secrecy from the disclosing party’s adversary.” Deloitte, 610 F.3d at 140 (internal quotation marks omitted). In other words, “voluntary disclosure of attorney work product to an adversary or a conduit to an adversary waives work-product protection.” Id.; see A.T.&T., 642 F.2d at 1299.

The disclosure of attorney work product in this case was not “to an adversary or a conduit to an adversary” and was not “inconsistent with the maintenance of secrecy from the disclosing party’s adversary.” Deloitte, 610 F.3d at 140 (internal quotation marks omitted). To the contrary, the work product was shared with aligned parties pursuant to a common interest agreement. And where there are “common interests on a particular issue against a common adversary, the transferee is not at all likely to disclose the work product material to the adversary.” A.T.&T., 642 F.2d at 1299. That is particularly so when the parties enter into a common-interest agreement, the entire purpose of which is to assure that they can exchange privileged matter without waiving the privilege. There was no waiver here.

(Mike Frisch)