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No. 82-372

Zin t1he ~prenme ~!ou~ of lhe 3inleA ~latreOCTOBER TERM, 1982

FEDERAL TRADE COMMISSION, ET AL., PETITIONERS

V.

GROLIER INCORPORATED

ON WRIT OF CERTIORARI- TO THEUNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

J. rAUlj TlViUUNATH

Assistant Attorney General

KENNETH S. GELLERDeputy Solicitor General

SAMUEL A. ALITO, JR.

Assistant to the Solicitor General

LEONARD SCHAITMAN

Attorney

Department of JusticeWashington, D.C. 20530(202) 633-2217

JOHN H. CARLEYGeneral CounselFederal Trade CommissionWashington, D.C. 20580

BRIEF FOR THE PETITIONERS

REX E. LEESolicitor General

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QUESTION PRESENTED

Whether Exemption 5 of the Freedom of Informa-tion Act, 5 U.S.C. 552(b)(5), continues to exemptfrom mandatory disclosure the work product of gov-ernment attorneys after the litigation for which thematerial was prepared has ended and related litiga-tion does not exist or potentially exist.

PARTIES TO THE PROCEEDING

The parties in the court of appeals, in addition tothose named in the caption, were the members of theFederal Trade Commission. At present, the membersof the Commission are James C. Miller, III, Chair-man, and Michael Pertschuk, David M. Clanton,Patricia P. Bailey, and George W. Douglas, Commis-sioners.

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TABLE OF CONTENTSPage

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Opinions below ------------------------------------------------

Jurisdiction ----------------------------------------------------

Statute involved -----------------------------------------------

Statement .--------------------------------------------- ----

Summary of argument ..------------------------------------

Argument .. ...--------------------------------------------------

The work product of government attorneys is pro-tected from disclosure under Exemption 5 of theFreedom of Information Act after the conclusionof the litigation for which that material was, pre-pared and without regard to the existence or poten-tial existence of related litigation --------------------

A. The work-product privilege continues despitethe termination of the litigation for which itwas prepared and even though no related liti-gation exists or potentially exists ..----------

B. Even if work product may be disclosed in civildiscovery when the case for which it was pre-pared has ended and no related case exists orpotentially exists, the work product of govern-ment attorneys is nevertheless, exempt fromnmandatory disclosure under the FOIA -----

C on clu sion ------- ---- -- --- -- -- -------------- -----

TABLE OF AUTHORITIESCases:

Busse's Estate, In re, 332 Ill. App. 258, 75 N.E.2d3 6 ------ --- ---- ------- --- ---- --- . . . . . . . ---- -- --- -- -- -..................

Department of State v. Washington Post Co., No.81-535 (M ay 17, 1982) ------------------

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Cases-Continued: Page

Duplan Corp. v. Deering Milliken, Inc., 540 F.2d1215 ----------------------------------------------------- 7,16

Duplan. Corp. v. Moulinage et Retorderie deChavanoz, 487 F.2d 480 ----------------------------- 15-16

Duplan Corp. v. Moulinage et Retorderie deChavanoz, 509 F.2d 730, cert. denied, 42i0 U.S.997 ---------------- 6------------------------------I--------16

EPA v. Mink, 410 U.S. 73..................... 36, 37FBI v. Abramson, No. 80-1735 (May 24, 1982) .. 29FOMC v. Merrill, 443 U.S. 340 .-------------------- -6,11, 35Grand Jury Proceedings, In re, 473 F.2d 840 --- 13Gulf Construction Co. v. St. Joe Paper Co., 24

F.R.D. 411 -------------------------------- 32Hanover Shoe, Inc. v. United Shoe Machinery

Corp., 207 F.Supp. 407 ------------------------------- 31Hercules Inc. v. Exxon Corp., 434 F.Supp. 13,6 - 30Hickman v. Taylor, 329 U.S. 495 ----------- 7, 12,13, 15, 18,

19, 21, 26, 36Honeywell, Inc. v. Piper Aircraft Corp., 50 F.R.D.

117 2--------------- ---------------- 7, 3,1Jordan v. U.S. Department of Justice, 591 F.2d

753 .------------------------------------------------------- 34Midland Investment Co. v. Van Alstyne, Noel &

Co., 59 F.R.D. 134----------------------------------- 30-31Murphy, In re, 560 F.2d 326 --------------------------- 4, 7,17NLRB v. Sears, Roebuck & Co., 421 U.S. 132 - 4, 6, 9,11,

15, 16, 28, 35, 37, 38Philadelphia Electric Co. v. Anaconda American

Brass Co., 275 F.Supp. 146 ------------------------- 31Rediker v. Warfield, 11 F.R.D. 125 -------------------- 31Republic Gear Co. v. Borg-Warner Corp., 381 F.2d

551 -------------------------------- ---------------------- 30,31Tobacco and Allied Stocks, Inc. v. Transamerica

Corp., 16 F.R.D. 534------- ----------------- 31United States v. Foster, 309 F.2d 8 ------------------- 27United States v. IBM, 66 F.R.D. 154 ------------------- 31United States v. Leggett & Platt, Inc., 542 F.2d

655, cert. denied, 430 U.S. 945 .------------- 7,16-17, 27United States v. Nobles, 422 U.S. 225 --------------- 7,14Upjohn Co. v. United States, 449 U.S. 383 .- 7, 14, 23, 36

33

33

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Statutes, regulations and rule: Page

Freedom of Information Act, 5 U.S.C. 552:Section (a) (3), 5 U.S.C. 552(a) (3) ------------ 2, 37Section (b) (5), 5 U.S.C. 552;(b) (5) ------- 2, 4, 6,10

Fed R. Civ. P.:Rule 26(b) (1) ------------------------------------- 22, 38Rule 26 (b) (3) . .--------4, 6, 13, 14, 15, 32, 34, 36, 37Rule 26 (c) (2) .------ ----------------------- -------- 36

Rules of the United States Court of Appeals forthe Ninth Circuit, Rule 13(b) (4) ------------------- 22

Miscellaneous:

Comment, Civil Procedures-Discovery-Work-Product Privilege Extends to Subsequent Litiga-tion, 27 Vand. L. Rev. 826 (1974) ..----------------- 33

110 Cong. Rec. 176,67 (1976) .- ---------------------- 10Cooper, Work Product of the Rulemakers, 53 Minn.

L. Rev. 1269 (1969) ---------------------------------- 32H.R. Rep. No. 1497, 89th Cong., 2:d Sess. (1966) ---- 9,11,

37,38McCormick, Evidence § 9'6 (2d ed. 1972) . ..-------- 26-274 J. Moore. Federal Practice T 26.64[21] (1982) -- 32- , - --- - - ,--, 1-' -L-J --

Note, Developments in the Law-Discovery, 74Harv. L. Rev. 940 (1961) .......................

Note, Discovery of an Attorney's Work Product inSubsequent Litigation, 1974 Duke L. J. 799 ........

Notes of Advisory Committee on 1970 Amendmentto Rules, 28 U.S.C. App. 442 .................... --

S. Rep. No. 813, 89th Cong., 1st Sess. (1965)....8 C. Wright & A. Miller, Federal Practice and Pro-

cedure § 2024 (1970) .......................

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3hen r 'uprmw en Ird of t4r 3lnitre tatreOCTOBER TERM, 1982

No. 82-372- I - -- . . Y.---

I .I3'EDERAL TRADE UOOMMISSION, ET AL., PET1TIONERS

GROLIER INCORPORATD~ ~ (mR.)IT JR TNCIORPOR.A TED

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ON WRIT OF CERTIORARI TO THEUNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-14a) is reported at 671 F.2d 553. The opinion of thedistrict court (Pet. App. 21a-23a) is not reported.

JURISDICTION

The judgment of the court of appeals was enteredon February 5, 1982 (Pet. App. 15a), and a timelynt.-fitin, flr rphlirina c w c]nit-d an A,nril 7 1R92

(id. at 16a, 19a). By orders of June 29, 1982, andAugust 3, 1982, the Chief Justice extended the timewithin which to file a petition for writ of certiorarito and including September 4, 1982. The petition wasfiled on September 2, 1982, and was granted on No-

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vember 8, 1982 (J.A. 52). The jurisdiction of thisCourt is invoked under 28 U.S.C. 1254 (1).

STATUTE INVOLVED

Subsection (a) (3) of the Freedom of InformationAct, 5 U.S.C. 552(a)(3), provides:

Except with respect to the records made avail-able under paragraphs (1) and (2) of this sub-section, each agency, upon any request forrecords which (A) reasonably describes suchrecords and (B) is made in accordance withpublished rules stating the time, place, fees. (ifany), and procedures to be followed, shall makethe records promptly available to any person.

Subsection (b) (5) of the Freedom of InformationAct, 5 U.S.C. 552(b) (5) provides:

(b) This section does not apply to mattersthat are-

* * * * *

(5) inter-agency or intra-agency memoran-dums or letters which would not be available bylaw to a party other than an agency in litigationwith the agency.

STATEMENT

This Freedom of Information Act ("FOIA") suitarose out of a request by respondent Grolier Incorpo-rated for documents of the Federal Trade Commission("FTC") concerning, among other things, a covertinvestigation by the FTC of one of Grolier's subsidi-aries, the Americana Corporation (Pet. App. la).'

1 In addition to records relating to the Americana investiga-tion ("Category A" records), Grolier also requested recordsrelating to covert investigations of any of its 14 subsidi-

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This investigation had been undertaken in connectionwith a civil penalty action filed by the Department,ofJustice in 1972 (United States v. Americana Corp.,Civil No. 388-72 (D.N.J.)) (Pet. App. la).2 TheFTC complied in part with the FOIA request, but itwithheld part or all of seven documents relating tothe investigation of Americana. Grolier then broughtsuit in the United States District Court for the Dis-trict of Columbia to compel release of those documents.

The FTC contended that certain of the documents,8including the four still at issue (i.e., Numbers 3, 5,

aries ("Category B" records.) and records relating to covertinvestigations of any person, company, or entity ("CategoryC" records). However, Grolier's district court complaint wasconfined to Category A and B records, and Grolier later with-drew any claim for further disclosure of Category B docu-ments,. Thus, Grolier's appeal involved only Category Arecords. See Appellant's. Opening Brief at 2 n.1.

2 The civil penalty action was based upon an alleged viola-tion of a 1949, cease and desist order prohibiting false adver-tising and misrepresentations in door-to-door sales. The suitwas dismissed with prejudice on Nov. 17, 1976, after the C'om-mission declined to comply with, a district court order direct-ing it to, turn over certain documents to the defendant (Pet.App. la-2a).

3 The FTC ,withheld two other documents-Numbers 1 and2--on the grounds that they were work product and pre-decisional. Court of Appeals Joint Appendix ("C.A. App.")60-61. The: district court upheld the withholding of thesedocuments under the work-product rationale (J.A. 48., 51).Grolier subsequently withdrew its claim for disclosure ofdocument 2 (Pet. App. 2a n.3), and the court of appealsaffirmed the district court's judgment regarding documentI under the pre-decisional rationale (id. at 8a).

The Commission also withheld document 4 as an attorney-client communication (J.A. 36-37). Both the district courtand the court of appeals upheld the withholding of this docu-ment on that basis (J.A. 49, 51; Pet. A.pp. 2a n.3).

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6, and 7), fell within Exemption 5 of the FOIA, 5U.S.C. 552(b) (5), because they were work productcompiled by FTC attorneys in anticipation of the civilpenalty action against Americana and therefore wouldnormally be privileged from discovery in civil litiga-tion. Since Exemption 5 "exempt[s] those docu-ments, and only those documents, normally privilegedin the civil discovery context." (NLRB v. Sears,Roebuck & Co., 421 U.S. 132, 149 (1975)), the FTCmaintained that the documents sought by Grolier wereexempt from disclosure under the FOIA.

After reviewing the documents in camera, the dis-trict court found (Pet. App. 23a) that they "en-compass opinions by attorneys regarding the evi-dentiary needs of the Americana action" and that"I[t]hey also discuss specific methods of obtainingevidence in that litigation." The court held (ibid.)that "the documents :[fell] within the rubric of 'mentalimpressions, conclusions, opinions or legal theories'"under Rule 26(b) (3) of the Federal Rules of CivilProcedure and that they therefore fell within Exemp-tion 5 of the FOIA.

A divided court of appeals vacated the districtcourt's judgment regarding those four documents.The panel majority conceded that ",I[t]here is noquestion that the documents involved were work-product prepared as part of the Americana action"(Pet. App. 2a). However, the majority stated thatthe applicability of Exemption 5 of the FOIA de-pended upon "whether these documents continue tobe privileged against disclosure several years afterthe Americana suit was terminated" (ibid.).

The court below noted (Pet. App. 3a-4a, quotingIn re Murphy, 560 F.2d 326, 334 (8th Cir. 1977)(emphasis added in opinion)) that several courts of

appeals and district courts have held that "there is 'aperpetual protection for work product' extendingbeyond the termination of the litigation for whichthe documents were prepared." But the court con-cluded (Pet. App. 5a) that "[e]xtending the work-product protection only to subsequent related casesbest comports with the fact that the privilege is quali-fied, not absolute." The court reasoned (id. at 6a)that effective legal representation would not be ad-versely affected by disclosure of attorneys' mentalimpressions, conclusions, opinions, or legal theories",[w]hen litigation has ended and no potential forrelated actions exists * * *." Accordingly, the courtheld (id. at 7a; emphasis in original) that "in thecontext of an FOIA request, attorney work-productfrom terminated litigation remains exempt from dis-closure only when litigation related to the terminatedaction exists or potentially exists."

Applying that test to the present case, the court ofappeals rejected the suggestion that Grolier's FOIAsuit constituted related litigation (Pet. App. 8a) andstated (id. at 7a) that "there does not appear to beany suit or potential suit related to the originalAmericana action." The court therefore remandedthe case "for reconsideration of the applicability ofthe work-product privilege in light of the apparentabsence of related litigation" (id. at 7a-8a).

Judge MacKinnon dissented. In his view, the Com-mission properly withheld the requested documentsunder Exemption 5 "because the termination of thelitigation to which the work-product relates does notdestroy this privilege" (Pet. App. 9a). Moreover,assuming that the work-product privilege were limitedby a "related case" rule, Judge MacKinnon concludedthat "the present suit could not be more directlyrelated to the Americana litigation" (id. at 13a).

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The court of appeals subsequently denied the gov-ernment's suggestion for rehearing en banec by a voteof five to four (Pet. App. 19a-20a).

SUMMARY OF ARGUMENT

This is a Freedom of Information Act case inwhich respondent sought disclosure of work productprepared by Federal Trade Commission attorneys fora civil action that ended several years ago. The Com-mission denied disclosure on the ground that thedocuments were protected by the attorney work-product privilege and were accordingly exempt fromdisclosure under the FOIA by virtue of Exemption 5,5 U.S.C. 552(b) (5). That exemption protects "memo-randums or letters which would not be available bylaw to a party other than an agency in litigation withthe agency." It is settled that this exemption wasintended to protect the working papers of governmentattorneys. See FOMC v. Merrill, 443 U.S. 340, 353(1979); NLRB v. Sears, Roebuck & Co., 421 U.S. 132,154 (1975).

The court of appeals nonetheless ordered the docu-ments disclosed, holding (Pet. App. 7a; emphasis inoriginal) that "in the context of an FOIA request,attorney work-product from terminated litigation re-mains exempt from disclosure only when litigationrelated to the terminated action exists or potentiallyexists." This holding is clearly wrong.

.1. The court of appeals' interpretation of theduration of the work-product privilege is not sup-ported by precedent or logic. Certainly nothing inthis Court's decisions or Fed. R. Civ. P. 26(b)(3),which codifies some aspects of the privilege, supportsthe view that the privilege ends upon the conclusionof the litigation for which it was prepared unless

7

related litigation "exists or potentially exists" (Pet.App. 7a). In addition, thle interpretation of the privi-lege adopted by the court below has been rejected bythree other courts of appeals that have considered theissue. In re Murphy, 560 F.2d 326, 335 (8th Cir.1977); Duplan Corp. v. Deering Milliken, Inc., 540F.2d 1215, 1219 (4th Cir. 1976); United States v.Leggett & Platt, Inc., 542 F.2d 655, 660 (6th Cir.1976), cert. denied, 430 U.S. 945 (1977).

The decision below also is fundamentally incon-sistent with the underlying purposes of the work-product privilege. As this Court has recognized, thedisclosure of attorneys' working papers may seri,ouslyundermine the proper functioning of the adversaryprocess. See Upjohn Co. v United States, 449 U.S.383, 398 (1981); United States v. Nobles, 422 U.S.225, 236-240 (1975); Hickman v. Taylor, 329 U.S.495 (1947). In preparing for litigation, an attorneymust "assemble information, sift what he considersto be the relevant from the irrelevant facts, preparehis legal theories and plan his strategy without undueand needless interference" (Hickman v. Taylor, supra,329 U.S. at 511). "This work is reflected * * * ininterviews, statements, memoranda, correspondence,briefs, mental impressions, personal beliefs, and count-less other tangible and intangible ways * * *" (ibid.).If such materials were subject to disclosure, "much ,ofwhat is now put down in writing would remain un-written," and both "the interests of the clients andthe cause of justice would be poorly served" (ibid.).

Subjecting the work-product privilege to the limita-tions imposed by the court of appeals would producemany of the deleterious consequences that the privi-lege was designed to prevent. The concepts of "re-lated" litigation and litigation that "potentiallyexists" (Pet. App. 7a) are so vague that attorneys

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would be unable to predict how they would be appliedin particular cases. Cases may be "related" in in-numerable ways. For example, they may involve simi-lar facts, legal theories, parties, or other personnel.There are also infinite degrees of relatedness. At thevery least, much litigation would be required to de-termine what is meant in this context by "related"cases, and we frankly doubt whether it would bepossible to develop clear standards that would permitattorneys to predict when and under what circum-stances their working papers might be ordered dis-closed. The concept of related litigation that "po-tentially exists" is of even less practical utility.Attorneys and judges would have a difficult timeindeed attempting to ascertain what future lawsuitsmay involve.

As a result of these ambiguities, cautious attorneyswould be forced to assume that any working paperskept after the termination of the litigation for whichthey were prepared might be disclosed to adversariesand others. In many instances, attorneys would re-frain from preparing or collecting work product thatmight prove damaging if released. In addition, manyvaluable files would likely be destroyed upon the con-clusi,on of the litigation for which they were assembled.This would impair the effective representation ofclients, make legal services more expensive, and in-terfere with the functioning of the legal system.

Applying the concepts of related and potential liti-gation would be particularly difficult in FOIA andother government cases. The volume of governmentlitigation (and potential litigation) that would haveto be surveyed is enormous, and most cases involvingthe same agency are related in many important re-spects. For example, they may involve the same stat-utory provisions, similar factual situations, similar

9

investigative strategies or practices, the same or sim-ilar adversaries, and the same agency personnel.

Assuming arguendo that attorneys had a roughidea of what was meant by "related" cases and casesthat "potentially exist," attorneys' trial preparationand representation of clients might well be adverselyaffected by the knowledge that damaging workproduct would be discoverable in subsequent, unre-lated cases. Certain work-product materials may beequally damaging no matter in what context they aredisclosed. These include documents discussing mate-rials that could prove harmful or embarrassing to aclient, as well as documents that reflect unfavorablyupon an attorney's performance. Anxious to preventdisclosure of such materials at any time, attorneyswould probably refrain from preparing, collecting, orpreserving many documents if they were discoverablein subsequent, "unrelated" cases.

2. Even if the court of appeals' decision correctlyreflected the duration of the work-product privilegein civil discovery, the working papers of governmentattorneys would nevertheless be protected from dis-closure under Exemption 5 of the FOIA.

First, Exemption 5 exempts those documents "nor-mally privileged in the civil discovery context"(NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at149). Documents may be obtained despite that ex-emption only if they would "'routinely be disclosed'in private litigation" (id. at 149 n.16, quoting H.R.Rep. No. 1497, 89th Cong., 2d Sess. 10 (1966)).Under the court of appeals' decision, however, workproduct from terminated litigation would be discover-able only if (a) it was sought in an "unrelated"case and there was no potential for related litigationor (b) the party seeking discovery was able to show asufficient need for the materials. Accordingly, since

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work-product materials from terminated cases wouldnot "routinely be disclosed" in civil discovery butwould be discoverable only under certain circum-stances, those materials would be shielded by Exemp-tion 5. Second, as Judge MacKinnon remarked indissent (see Pet. App. 13a), an FOIA suit seekingwork product from an earlier case is clearly "related"to the prior case. This is especially so where, as here,the party making the FOIA request was a party (oris the parent corporation of a party) in the previousaction.

ARGUMENT

THE WORK PRODUCT OF GOVERNMENT AT-TORNEYS IS PROTECTED FROM DISCLOSUREUNDER EXEMPTION 5 OF THE FREEDOM OFINFORMATION ACT AFTER THE CONCLUSION OFTHE LITIGATION FOR WHICH THAT MATERIALWAS PREPARED AND WITHOUT REGARD TO THEEXISTENCE OR POTENTIAL EXISTENCE OF RE-LATED LITIGATION

Exemption 5 of the Freedom of Information Act,5 U.S.C. 552(b) (5), protects from disclosure "mem-orandums or letters which would not be available bylaw to a party other than an agency in litigation withthe agency." This exemption was clearly intended toprotect the working papers of government attorneysfrom disclosure. The Senate Report states (S. Rep.No. 813, 89th Cong., 1st Sess. 2 (1965)) that thematerial protected by Exemption 5 "include[s] theworking papers of the agency attorney and docu-ments which would come within the attorney-clientprivilege if applied to private parties." This Court

4 See also 110 Cong. Rec. 17667 (1976) (remarks of Sen.Long) ("[T]here is nothing in this bill which would overridenormal privileges dealing with the work product * * *.")

has also noted that it is "clear that Congress had theattorney's work-product privilege specifically in mindwhen it adopted Exemption 5." NLRB v. Sears, Roe-buck & Co., supra, 421 U.S. at 154. See FOMC v.Merrill, 443 U.S. 340, 353, 357 (1979) (House andSenate Reports provide "unequivocal support for anExemption 5 privilege for * * * attorney work prod-uct privileges").

Although Exemption 5 was meant to protect thework product of government attorneys from manda-tory disclosure to the public, the court of appeals heldthat such materials lose their privileged status uponthe termination of the litigation for which they wereprepared unless the government is able to demon-strate that related litigation exists or potentially ex-ists. This holding is erroneous for at least two rea-sons. First, the work-product privilege is not subjectto such limitations, in either the civil discovery or theFOIA context. Second, even if such limitations existin civil discovery, disclosure in a subsequentFOIA suit vwould not be warranted. Exemption 5 ap-plies unless covered materials would" 'routinely be dis-closed' in private litigation" (NLRB v. Sears, Roe-buck & Co., supra, 421 U.S. at 149 n.16, quoting H.R.Rep. No. 1497, 89th Cong., 2d Sess. 10 (1966) (em-phasis added) ), and even under the court of appeals'interpretation of the privilege, the working papers ofgovernment attorneys would not "routinely be dis-closed" in civil discovery but could be obtained onlyin limnited circumstances.

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A. The work-product privilege continues despite thetermination of the litigation for which it was pre-pared and even though no related litigation exists orpotentially exists

As noted, the court of appeals held that the docu-ments at issue in the present case, although concededlythe work product of government attorneys (see Pet.App. 2a), were no longer protected by the work-product privilege because the litigation for whichthey had been prepared had ended and related litiga-tion did not exist or "potentially" exist. There is nobasis for these unprecedented limitations upon thework-product doctrine.

1. The attorney work-product privilege was firstrecognized by this Court in Hickman v. Taylor, 329U.S. 495 (1947), a Jones Act suit brought by the rep-resentative of a crewman drowned in a tugboat ac-cident. After counsel for defendants, the tug ownersand underwriters, had interviewed survivors of theaccident, opposing counsel sought to obtain copies ofany written statements provided by the survivors andalso to compel defense counsel to "set forth in detail"any oral statements the survivors had made (id. at498-499). This Court held that the written and oralstatements were privileged and refused to permittheir discovery.

The decision in Hickman was based upon the rec-ognition that discovery of attorney work productwould interfere with sound trial preparation andthereby undermine the adversary process. The Courtstated (329 U.S. at 510-511):

In performing his various duties * *, it isessential that a lawyer work with a certain de-gree of privacy, free from unnecessary intrusionby opposing parties and their counsel. Proper

preparation of a client's case demands that he as-semble information, sift what he considers to bethe relevant from the irrelevant facts, preparehis legal theories and plan his strategy withoutundue and needless interference. That is thehistorical and the necessary way in which law-yers act within the framework of our system ofjurisprudence to promote justice and to, protecttheir clients' interests. This work is reflected, ofcourse, in interviews, statements, memoranda,correspondence, briefs, mental impressions, per-sonal beliefs, and countless other tangible and in-tangible ways-aptly though roughly termed bythe Circuit Court of Appeals in this case as the"work product of the lawyer." Were such ma-terials open to opposing counsel on mere demand,much of what is now put down in writing wouldremain unwritten. An attorney's thoughts, here-tofore inviolate, would not be his own. Ineffi-ciency, unfairness and sharp practices would in-evitably develop in the giving of legal advice andin the preparation of cases for trial. The effecton the legal profession would be demoralizing.And the interests of the clients and the cause ofjustice would be poorly served.

The Court added, however, that the work-productprivilege is not absolute. The Court stated (329 U.S.at 511-512) that "written materials obtained or pre-pared * * * with an eye toward litigation" may bediscovered upon a showing of necessity. On the otherhand, the Court observed (id. at 512-513), the"mental impressions" of counsel may be discovered, ifat all, only in "rare" circumstances. 5

5 Some courts have held that this aspect of the privilege isabsolute. See, e.g., In re Grand Jury Proceedings, 473 F.2d840, 848 (8th Cir. 1973). See also Fed. R. Civ. P. 26(b) (3).

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The considerations that led this Court to recognizethe work-product privilege apply with particular forcein the case of government attorneys. The workingpapers of government lawyers may be sought, notonly in civil discovery, but under the, FOIA as well.Yet, government attorneys are far more likely to bedependent upon the existence of comprehensive writ-ten files than most of their counterparts in privatepractice: government cases tend tobe larger and tolast longer; government attorneys tend to be moretransient; coordination of the positions taken in manyvarieties of cases is of unusual importance; andmaintaining supervision and coordination in an or-ganization as vast and complex as the United Statesgovernment naturally requires great reliance uponpast records.

The strong public policy underlying the work-product doctrine has been repeatedly reaffirmed bythis Court. See, e.g., UJpjohn Co. v. United States,449 U.S. 383, 398 (1981); United States v. Nobles,422 U.S. 225, 236-240 (1975). That policy has alsobeen embodied in Federal Rule of Civil Procedure 26(b) (3), which provides in pertinent part:

(3) Trial Preparation: Materials. Subjectto the provisions of subdivision (b) (4) of thisrule, a party may obtain discovery of documentsand tangible things otherwise discoverable undersubdivision (b) (1) of this rule and prepared inanticipation of litigation or for trial by or foranother party or by or for that other party'srepresentative * * * only upon a showing thatthe party seeking discovery has substantial needof the materials in the preparation of his caseand that he is unable without undue hardship toobtain the substantial equivalent of the materialsby other means.

15

Nothing in this Court's decisions or in Rule 26(b)(3) suggests that the work-product privilege termi-nates with the conclusion of the litigation that gaverise to the work product. On the contrary, Rule 26(b) (3) by its terms protects "documents and tangiblethings * * * prepared in anticipation of litigation orfor trial" (emphasis added) and not just those pre-pared in anticipation of or for the suit then beforethe court. Nor is there a hint in this Court's deci-sions or in Rule 26(b) (3) that the privilege survivesthe termination of the suit for which the work prod-uct was prepared only if related litigation "existsor potentially exists" (Pet. App. 7a), whatever thatmay mean.6

With the exception of the court below, all thecourts of appeals that have reached the issue haveheld that work product from terminated litigation re-mains privileged in subsequent, unrelated cases. InDuplan Corp. v. Momlinage et Retorderie de Chavanoz,487 F.2d 480, 483-484 (4th Cir. 1973), the courtconcluded that perpetual protection for work productbest comports with the rationale of Hickman and ex-plained (id. at 483):

6 Indeed, the perpetual nature of the work-product privilegeis an implicit premise of the Court's analysis in NLRB v.Sears, Roebuck & Co., supra. In that case, Sears filed a FOIArequest seeking, among other things, intra-agency memorandaof the NLRB directing the filing of a complaint. Many suchmemoranda pertained to "cases which had been closed * * *because litigation before the Board had been completed" (421U.S. at 145). However, the Court did not distinguish betweenopen cases and closed cases but rather concluded (id. at 159-160) that all such memoranda had been "prepared in contem-plation of the upcoming litigation [and therefore fell] squarelywithin Exemption 5's protection of an attorney's workproduct."

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[Hickman's] overriding concern is that the law-yer's morale be protected as he performs his pro-fessional functions in planning litigation and pre-paring his case. This work product immunity isthe embodiment of a policy that a lawyer doinga lawyer's work in preparation of a case fortrial should not be hampered by the knowledgethat he might be called upon at any time to handover the result of his work to, an opponent.

The Fourth Circuit specifically rejected the sugges-tion that "documents prepared for one case are pro-tected in a second case only if the two cases are'closely related'" (id. at 484 n.15). The court stated(ibid.) that "to dispose of this delicate and importantquestion by such a technical touchstone is incompati-ble with the essential basis of the Hickman decision."See also Duplan Corp. v. Deering Milliken, Inc., 540F.2d 1215, 1219 (4th Cir. 1976); Duplan Corp. v.Moulinage et Retorderie de Chavanoz, 509 F.2d 730,735 (4th Cir. 1974), cert. denied, 420 U.S. 997(1975).

The Sixth Circuit followed the Fourth in UnitedStates v. Leggett & Platt, Inc., 524 F.2d 655 (6thCir. 1976), cert. denied, 430 U.S. 945 (1977). Inthat case, the government initiated a civil antitrustaction to require a manufacturing company to divestitself of two other recently acquired firms in thesame industry, and the defendant company thensought discovery of work product prepared by gov-ernment lawyers in anticipation of litigation con-cerning similar acquisitions by other companies inthat industry. Holding that work product retains itsprotection when sought in subsequent cases, the courtstated (id. at 660):

Were the work product doctrine an unpenetrableprotection against discovery, we would be less

willing to apply it to work produced in anticipa-tion of other litigation. But the work productdoctrine provides only a qualified protectionagainst discovery, at least of products other than[opinion work product].

Finally, in In re Murphy, 560 F.2d 326 (8th Cir.1977), the Eighth Circuit reached a similar conclu-sion. Rejecting the view that the work product priv-ilege applies only in the very case for which the ma-terials were prepared or in a "related" case, thecourt reasoned (id. at 335; footnote omitted):

If work product is protected in related, butnot unrelated future cases, an attorney wouldbe hesitant to assemble extensive work productmaterials because of the concern that the ma-terials will not be protected in later, unrelatedlitigation. The unrelatedness of£ the subsequentlitigation provides an insufficient basis for dis-regarding the privilege articulated in Hickmanand incorporated in Rule 26(b)(3). The mis-chief engendered by allowing discovery of workproduct recognized in Hickman would apply withequal vigor to discovery in future, unrelatedlitigation.

In the present case, the court of appeals purportedto find support for its decision in the purpose of thework-product privilege (see Pet. App. 6a). It seemsclear, however, that the policy underlying the privi-lege would be poorly served if subjected to the con-straints imposed by the decision below. We will firstdiscuss whether there is any justification for holdingthat the work-product privilege automatically dis-solves upon the conclusion of the litigation in connec-tion with which it was originally prepared. We willthen address the two additional refinements adopted

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by the court of appeals-i.e., the "related" litigationand "potential" related litigation tests.

2. Little discussion is required to demonstrate thatthe policy underlying the work-product doctrinewould be seriously eroded if the privilege immedi-ately evaporated upon the termination of the litiga-tion in connection with which it was prepared. Wereadily acknowledge that the need to shield workproduct is usually strongest during the pendency ofthat litigation, for the more immediate the threat ofdisclosure the greater the effect upon an attorney'spreparation and overall representation is likely to be.But common sense suggests that the possibility of dis-closure at some future date may also have a highlydeleterious effect upon an attorney's preparation andrepresentation and consequently upon the adversaryprocess.

This may be illustrated by considering a slight var-iation of the situation in Hickman. In that case, fivecrewmen .Jrowned in a tugboat accident, but repre-sentatives of four eventually settled their claims. Aspreviously noted, the representative of the fifth crew-man filed suit and sought discovery of the witnessstatements obtained by defense counsel. This Courtrefused to allow discovery of those statements, whichconstituted work product gathered in preparation forthe case before the Court.

Suppose, however, that the other four crewmen,rather than settling their claims, had decided to waituntil after the initial action ended before bringingsuit. Under those circumstances, it could hardly beargued that the policy underlying the work productprivilege would be adequately seTrved if the privilegeterminated upon the completion of the initial suit. Ifthe preparation of defendants' counsel would havebeen adversely affected by the knowledge tha.t his

work product might be revealed during the first suit,the realization that the same materials might be dis-closed in the subsequent actions almost certainlywould have had an equivalent effect.

To take another example, suppose that the com-plaint in Hickmran had been dismissed on groundsthat did not bar reinstitution of suit-for example,for lack of in personam jurisdiction or venue or be-cause suit was brought under the wrong statute orlegal theory. Surely the policy underlying the work-product privilege would demand continued protectionof work product prepared in connection with the first,aborted proceeding.

Even where the likelihood of subsequent relatedlitigation is not as strong as it is in the above ex-amples, an attorney's preparation and representationmight be affected significantly and adversely if heknows that his, work product may be disclosed uponthe conclusion of the suit at hand. For example,sound trial preparation often requires an attorneyto probe all possible weaknesses in his client's case.An attorney may consequently find it necessary orhelpful to prepare memoranda discussing materialsthat reflect unfavorably upon his client, such as ma-terials that might be used to cross-examine or im-peach his client or other persons whom the attorneyis contemplating calling as witnesses. An attorneymay believe that only by collecting and evaluatingsuch materials can he intelligently make or advisehis client concerning numerous litigation decisions,such as whether to file suit, whether to settle a pend-ing action, whether to assert a particular claim ordefense, which witnesses to call at trial, and whichitems of evidence to introduce. However9 if an at-torney believed that documents discussing materialsdamaging to, a client might be disclosed upon comple-

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tion of the case at hand, the attorney's trial prepara.tion could well be altered. Potentially damaging in-formation might not be collected, examined, or re-duced to writing. The attorney and his client mighttherefore be required to make critical litigation de-cisions and perhaps proceed to trial without the bene-fit of the preparation that the attorney would other-wise deem essential. Both the interest of the client andthe adversary process would suffer as a consequence.

If the court of appeals' decision is affirmed, attor-neys' trial preparation might be altered not only toprotect their clients but also to protect themselves.If work product lost all protection following the con-clusion of the case for which it was prepared, attor-neys might hesitate to prepare or retain materialsrevealing or acknowledging their own mistakes. Thistoo would have undesirable consequences, because afrank assessment of the conduct of litigation may ben-efit both an attorney's client and society's larger in-terests. A recognition of past errors may permit theircorrection or may lead to the conclusion that proposedlitigation should not be initiated or that pending liti-gation should be settled or dismissed. Yet many at-torneys, both in government and private practice,would probably be much more reluctant to engage incandid analysis of their own performance or that oftheir colleagues if materials containing such analysiswere subject to disclosure at the conclusion of thepending litigation.

By the same token, if the attorney work-productprivilege dissolved upon the completion of the litiga-tion for which the requested materials were prepared,valuable files might well be destroyed at that time toprevent possible future disclosure. Many irreplace-able documents would be lost, and other documentsdestroyed at the conclusion of one case would have

21

to be prepared or gathered again when subsequentcases arose. The efficient functioning of the legalprocess would accordingly be hampered.

In sum, it seems obvious that the strong publicpolicy underlying the work-product doctrine would befrustrated if the privilege automatically dissolvedupon the completion of the litigation for which thework-product materials were prepared. If the privi-lege were limited in that fashion, "much of what isnow put down in writing would remain unwritten.An attorney's thoughts, heretofore inviolate, wouldnot be his own. Inefficiency, unfairness and sharppractices would inevitably develop in the giving oflegal advice and in the preparation of cases for trial.The effect on the legal profession would be demoraliz-ing. And the interests of the clients and the causeof justice would be poorly served." Hickman v. Tay-lor, suprca, 329 U.S. at 511. On the other hand, rec-ognizing that the work-product privilege is not sub-ject to temporal restraints would not create unduehardship for civil litigants because, at least with re-spect to non-opinion work product, the privilege maybe overcome where suflicient need for the materialsis shown.

3. The court of appeals introduced two qualifica-tions designed to soften the impact of the rule thatwork product loses all protection upon the conclusionof the case for which it was prepared. The courtconcluded that the work-product privilege could sur-vive the termination of the original litigation if(a) related litigation is in existence o,r (b) thereis a potential for such litigation. However, neitherof these qualifications is workable or comports withthe rationale for the privilege.

What the court of appeals meant by "related" liti-gation is far from clear. Cases may be related in

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countless ways. For instance, they may involve simi-lar facts; the same or similar investigative techniques,causes of action, or defenses; or the same lay or ex-pert witnesses, investigators, trial attorneys, or su-pervisory personnel. There are also infinite degreesof relatedness. The very fact that wo,rk product pre-pared for one case is relevant and hence potentiallydiscoverable in another case (see Fed. R. Civ. P. 26(b) (1)) suggests that the two cases are related inat least one significant respect.

Application of the concept of related litigationwould be particularly difficult in cases involving gov-ernment agencies. Because of their continuing en-forcement responsibilities, many federal agencies arealmost constantly engaged in litigation involving thesame laws; recurring factual situations; the sameor similar opposing parties; the same investigative,trial, and supervisory personnel; analogous enforce-ment decisions; and the same or similar investigativeand litigative strategies or techniques. Thus, casesinvolving such agencies are typically related in manysignificant ways, and disclosure of work product fromcases long since closed may reveal privileged informa-tion of considerable value to regulatees and potentialadversaries. In addition, the sheer volume of casesinvolving government agencies would compound thedifficulty of ascertaining whether any are related to

7 For an illustration of some of the ways in which casesmay be related, see Rule 13(b) (4) of the Rules of the UnitedStates Court of Appeals for the Ninth Circuit, which requiresparties to state whether any "related" cases are pending be-fore the court. Under this rule, cases may be deemed relatedif, among other things, they "involve the same or closely re-lated issues," "involve the same basic transaction or event,"or "have any other similarities of which you think the Courtshould be aware."

the litigation for which the work product at issue wascreated.

For the courts that will ultimately be required toadjudicate work-product disputes, the related litiga-tion test would create the difficult, if not impossible,task of specifying what sort of relationship is re-quired and just how close the relationship betweencases must be before they are deemed to be related.At the very least, developing such standards wouldtake many years and much litigation, and we franklydoubt whether it would ever be possible to articulateclear standards capable of producing predictable re-sults. Of course, if attorneys cannot predict whatwould be deemed "related" litigation for these pur-poses, they would not know if, when, and under whatcircumstances their work product may be ordered dis-closed. Collecting and preserving potentially damag-ing or embarrassing work-product materials wouldaccordingly be a risky undertaking from which manycautious attorneys might elect to refrain. As thisCourt has observed (Upjohn Co. v. United States,supra, 449 U.S. at 393), "[al]n uncertain privilege,or one which purports to be certain but results inwidely varying applications by the courts, is littlebetter than no! privilege at all."

Even if attorneys had a rough idea what mightlater be deemed "related" litigation, their trial prep-aration and overall representation might well be ad-versely affected by the knowledge that disclosure ofdamaging work product might be ordered in subse-quent unrelated cases. Although the court of appealsdid not explain the conceptual basis for the relatedlitigation test, in order to comport with the policyunderlying the work-product privilege that test wouldhave to rest upon the premise that disclosure of work

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product in or during the pendency of related litiga-tion is likely to, have a greater adverse impact uponattorneys' trial preparation and representation thanis disclosure in or during unrelated suits. This, couldbe so for two reasons: (a) it could be argued thatattorneys are more likely to foresee (and thus fear)the possibility of disclosure during subsequent relatedcases; and (b) it could be argued that disclosure dur-ing the pendency of such suits is likely to be moredamaging to attorneys and their clients.

If this is indeed the underlying rationale of therelated litigation test, we question the validity of thebroad, unsubstantiated generalizations upon which itis based. While there are undoubtedly circumstancesin which subsequent related cases may be foreseen,there are also, many circumstances in which it isapparent to attorneys that work-product materialsgathered for one case may be relevant to and soughtin other cases that may be deemed unrelated. In ad-dition, the very fact that such materials are soughtby an opposing party in civil discovery and are foundto, be relevant to that suit is, some evidence that theirdisclosure may not be innocuous. Furthermore, itseems obvious that revelation of certain work-product materials may be equally damaging no mat-ter what the context in which they are disclosed. Forexample, documents discussing materials that couldbe used to, impeach a particular client in one casemight alert an adversary to, the possibility of usingthose materials for the same purpose in a subsequent,unrelated case. Documents containing informationthat would damage the business or personal reputa-tion of a client if made public might be just as harm-ful if revealed in an unrelated as opposed to a relatedsuit. And materials that reflect unfavorably upon anattorney's performance would be equally damaging

25

without regard to the nature of the case in whichtheir disclosure is ordered.

Finally, the related litigation test is fatally flawedbecause subsequent unrelated litigation may precedesuits, intimately related to the case in connection withwhich the work-product materials were prepared.Disclosure of those materials in the unrelated suitwould mean that they will be available to adversariesin the related cases not yet begun.

4. Apparently recognizing that the "related litiga-tion" test is inadequate, the court of appeals addedthat the work-product privilege continues as long asthere is a "potential" for related litigation. In ourview, the concept of whether related litigation "poten-tially exists" is meaningless for all practical purposes.To be sure, there are undoubtedly instances in whichthe possibility of subsequent related litigation is clear-for example, where an action is dismissed withoutprejudice-but absent such circumstances it is hardto imagine how a court would go about determiningwhether there is a "potential" for related litigation.8

8 In the present case, the court of appeals concluded (Pet.App. 7a) that "there does not appear to be any suit orpotential s.uit related to the original Americana action."However, the court reached that conclusion by misconstruingand taking out of context a statement made by the FTC inpapers supporting its motion for summary judgment. Pur-suant to a provision o,f the local rules and customary localpractice, petitioners stated (J.A. 291; emphasis added):

Plaintiff Grolier, is also plaintiff in a proceeding to re-view an order of the Commission, Grolier Incorporated v.Federal Trade Commission, now pending in the U.S.Court of Appeals for the Ninth Circuit (No. 78-2159).The action in the Ninth Circuit is not directly related tothis action.

The obvious reason for requiring such a statement in paperssupporting a summary judgment motion is to allow the court

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Indeed, in our litigious society, what sort of litigationdoes not "potentially exist" at any time? Moreover,the concept of litigatioin that "potentially exists," likethe concept of related litigation, would be particularlydifficult to apply in government cases. Because of theenormous volume of government litigation, surveyingall cases in the offing would be a Herculean chore.And no, attorney could accurately predict what evena single agency such as the FTC is likely to, investi-gate in the future, where those investigations arelikely to lead, and what sort of litigation may ulti-mately result.

Thus, the rule adopted by the court of appeals inthis case would seriously undermine the importantpublic policy underlying the work-product privilege.Attorneys preparing for trial would be unable to pre-dict when or if potentially damaging work-productmaterials might be ordered disclosed, and they wouldhave little assurance that such materials, if preparedor collected, would not work to the detriment of theirclients or themselves. The results would be preciselythose this Court sought to avoid in Hickman.9

to ascertain whether a consolidation of actions is appropri-ate, whether any of the claims asserted are controlled by resjudicata or collateral estoppel, and. whether the decision in thecase at hand will affect any other pending litigation. Peti-tioners' statement obviously was not made with the, courtof appeals' "related litigation" test in mind. By seizing uponpetitioners' statement, which as noted was made in an en-tirely different context, the court of appeals masked the diffi-culty of determining whether pending cases, not to mentionpotential cases, are related within the meaning of the court'stest.

9 It is generally recognized that the policies and needsunderlying the attorney work-product privilege are closelyallied to those' of the attorney-client privilege. McCormick,

5. We have already touched upon the reasons whycontinuing protection fo'r work product is especiallyimportant in government litigation and why the con-cepts of "related" and "potential" litigation would beparticularly unworkable in this context. For many ofthese same reasons, we believe that even if the workproduct of private attorneys were subject to temporalrestraints, continuing protection for the work productof government attorneys would be required.

Unlike most private litigants, many governmentagencies exist in large measure for the purpose oflitigating in either administrative or judicial proceed-ings. In addition, most government agencies havespecialized enforcement and litigative responsibilities.Accordingly, they may participate over the years in alarge number of cases involving the same laws andsimilar factual patterns, investigative techniques, evi-d.entiary problems, and trial strategies and decisions.Work product prepared for prior cases is "closed" inonly the most technical sense; it may reveal how theagency customarily deals with recurring legal prob-lems and therefore may be valuable to regulatees andactual or potential adversaries for reasons that areseldom applicable with respect to the wojrk product ofprivate attorneys. To take one example, in UnitedStates v. Leggett & Platt, Inc., supra, in which theSixth Circuit held that work product is perpetuallyprotected, the company against which the governmenthad initiated a civil antitrust action sought discovery

Evidence § 96 (2d ed. 1972). It is therefore significant thatthe attorney-client privilege survives the termination o'f theattorney-client relation that it is intended to serve (see,e.g., United States v. Foster, 309 F.2d 8, 15 (4th Cir. 1962))and even the death of the client (see, e.g., In re Busse's Estate,332 Ill. App. 258, 266, 75 N.E.2d 36, 39 (1947)).

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of work product prepared by government attorneys inanticipation of the same type of litigation with otherfirms in the same industry. If those materials hadbeen ordered disclosed, the defendant company mighthave gained much valuable information about theinvestigative and litigative strategies customarily em-ployed by the government in cases of that sort. Bycontrast, if the antitrust action had been filed by aprivate party, it is doubtful whether disclosure ofwork product from any past case in which that partyhad been involved would yield similar fruit. And un-less the defendant company had previously defendeda similar suit, it is doubtful as well that the govern-ment could have obtained information concerning thedefendant's investigative or litigative techniques byseeking discovery of work product from cases inwhich it was previously involved.

The need to prevent disclosure of materials reflect-ing intra-agency advisory opinions, recommendations,and deliberations also finds expression in the govern-ment's deliberative process privilege, which is notsubject to temporal restraints. See NLRB v. Sears,Roebuck & Co., supra, 421 U.S. at 149-151. Thisprivilege, which is embodied in Exemption 5, ofcourse may not be claimed by private parties. "[T]heultimate purpose of this long-recognized privilege isto prevent injury to the quality of agency decisions,"since such decisions "will clearly be affected by thecommunications received by the decisionmaker on thesubject of the decision prior to the time the decisionis made" (id. at 151). This same objective demandscontinuing protection for much government workproduct prepared for past cases. Since materialsreflecting intra-agency deliberations concerning re-curring litigative problems would be perpetually

privileged, it would be anomolous indeed if a gov-ernment attorney's file memoranda concerning thesame issues lacked similar protection or if confiden-tial materials reflecting how such problems wereapproached in practice were freely discoverable fol-lowing the conclusion of the litigation for which theywere prepared and all "related" litigation and poten-tial litigation. See Department of State v. Washing-ton Post Co., No. 81-535 (May 17, 1982), slip op. 6;FBI v. Abramson, No. 80-1735 (May 24, 1982),slip op. 12-13.

In sum, the work product of government attorneysis fundamentally different from that of private prac-titioners and demands continued protection even ifprivate attorneys' work product is subject to, temporallimitations.

6. We have thus far addressed the application ofthe court of appeals' test in the civil discovery con-text. In a Freedom of Information Act case, like thepresent suit, that test makes even less sense.

Applying its test in the FOIA context, the majorityof the court ,of appeals held that. a FOIA suit seekingwork product from a terminated case may not beregarded as "related" litigation and that the appli-cability of the work-product privilege in the FOIAsuit depends upon the fortuity of whether other litiga-tion related to the original action is then pending or"potentially exists." We find this approach puzzling.

First, we do not understand why a FOIA suit seek-ing documents from a terminated case should not beregarded as related litigation. See Pet. App. 13a(MacKinnon, J., dissenting). Since the documentssought in the FOIA suit would not have been createdor assemnbled were it not for the first action, thetwo cases would appear to be closely related in the

28

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usual sense of that term. This conclusion also seemsconsistent with the apparent rationale for the relatedlitigation test. As previously noted, if there is anybasis for that test, it is that disclosure of workproduct in a related case is more likely to be foreseenand to cause damage to an attorney and his clientthan is disclosure in an unrelated suit. Judged bythese criteria, FOIA suits seeking work product fromterminated cases fully qualify as related litigation.The filing of a FOIA request-a simple, inexpensiveprocedure-is much more likely and foreseeable inmost circumstances than the filing of a civil complaintand the pursuit of work product through civildiscovery.

In any event, even if not all FOIA suits seekingwork product from terminated cases may be regardedas "related" litigation, there is surely no justifica-tion for holding that a FOIA suit may never be a"related" case (see Pet. App. 8a). For example,where, as here, documents are sought by the oppos-ing party in the prior suit or its corporate parent,it seems plain that the two actions are closely related.

7. The court of appeals attempted to bolster itsinterpretation of the work-product privilege by rely-ing upon what it characterized as a "substantial bodyof case law [that] supports the conclusion that thework-product privilege extends to subsequent casesonly when they are related" (Pet. App. 4a; emphasisadded). However, none of the cases cited by the courtof appeals reached that question. In each of thosecases, discovery of attorney work product in a relatedcase was denied. See Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 557 (2d Cir. 1967);Hercules Inc. v. Exxon Corp., 434 F. Supp. 136, 153(D. Del. 1977); Midland Investment Co. v. Van

Alstyne, Noel & Co., 59 F.R.D. 134, 138 (S.D.N.Y.1973); Philadelphia Electric Co. v. Anaconda Amer-ican Brass Co., 275 F. Supp. 146, 148 (E.D. Pa.1967). Indeed, none of those cases even contains dic-tum embracing the court of appeals' position. '10 And

10 In Republic Gear Co., the Second Circuit declined to per-mit discovery of work product prepared for related cases thenpending on a,ppeal. The court distinguished the case before itfrom district court: cases involving work product from com-pleted litigation (381 F.2d at 557 & n.5), but the court did notstate that it would have allowed discovery if the previous liti-gation had been completed or was unrelated to the case athand.

The three district court cases cited by the court of appealsheld that work product from previous related cases is notdiscoverable. Those cases did not state that work productfrom previous unrelated cases is discoverable.

As the court of appeals observed (see Pet. App. 3a), somedistrict courts have "concluded that the work-product privilegeapplies only if the, materials were prepared in anticipation ofthe very suit before the court." As previously discussed,however (see pages 18-21, supra), such a rule would lead toabsurd results. Moreover, as the five exa,mples cited by thecourt illustrate (see Pet. App. 3a), the cases adoptingsuch a rule axe devoid of analysis and rely uncriticallyupon prior district court authority. The, most recent districtcourt case cited in the opinion below, United States v. IBM,6.6 F.R.D. 154, 178. (S.D.N.Y. 1974), relies solely upon a quo-tation from Honeywell, Inc. v. Piper Aircraft Corp., 50 F'.R.D.117, 119 (M.D. Pa. 1970), and the latter case contains noanalysis but merely,cites two of the other cases noted by thecourt of appeals, i.e., Hanover Shoe, Inc. v. United Shoe Ma-chinery Corp., 207 F. Supp. 407, 410, (M.D. Pa. 19,62), andTobacco and Allied Stocks, Inc. v. Transamerica Corp., 16F.R.D. 534, 537 (D. Del. 19,54). Hanover Shoe relies (207F. Supp. at 410) in turn solely upon Tobacco and AlliedStocks in which the court reached its conclusion (16 F.R.D.at 537) by incorrectly reading Rediker v. Warfield, 11 F.R.D.125 (S.D.N.Y. 1951). Rediker concerned material that had

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none of those cases or any other case of which weare aware adopted or approved the "potential" litiga-tion test."

not been prepared in anticipation of any litigation and thuswas not work product at all (id. at 128).

The remaining district court decision cited by the court ofappeals, Gulf Construction Co. v. St. Joe Paper Co., 24 F.R.D.411, 415. (S.D. Tex. 1959), relies. solely upon the fact that"Hickman v. Taylor involved the discovery and productionof statements of witnesses acquired by counsel in anticipationof the litigation then before the court."

11 The commentators cited by the court of appeals (see Pet.App. 4a) also provide no analytical support for the court'sdecision. The court relied upon 8 C. Wright & A. Miller, Fed-eral Practice and Procedure § 2024 at 201 (1970), but thatpassage merely states without elaboration that the "sounderview" is that work product does not lose all protection at thetermination of the litigation for which it was prepared butinstead remains. privileged in subsequent cases "at least ifthe two cases are 'closely related" (emphasis added). In 4 J.Moore, Federal Practice ¶ 26.64[2] at 26-415 (1982), it isstated that "[p] rior to the 19,70 amendments [to Fed. R. Civ.P. 26,(b) (3)], the question as to whether the papers, in oneaction were to be considered 'work product' for purposes of asubsequent one, turned on whether the first action was com-plete and upon the, relationship between the first and secondactions." This statement was merely an attempt to summarizethe holdings of various lower court decisions; prior to 1970and did not take into consideration the decisions of threecourts o'f appeals after 1970 holding that work product isperpetually privileged in civil discovery. Moreover, for rea-sons previously explained (see pages 31-32 & n.10, supra), theaccuracy of that summary is questionable. The' final commen-tator cited by the court of appeals, (Cooper, Work Product ofthe Rulesmakers, 53 Minn. L. Rev. 1269, 1299 n.100 (1969))merely state,s in a footnote and without any supportinganalysis that the work-product privilege should terminate"only when there is no danger of disclosure to others pursu-ing claims related to the claims involved in the litigation giv-

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The remainder of the court of appeals' analysis isequally unpersuasive. The court stated (Pet. App.

ing rise to, the one-time wo,rk product materials." As we haveargued, there is almost always some danger that disclosure ofthe work product o'f government attorneys will assist potentialadversaries or regulatees.

The question involved in this case has attracted surpris-ingly little additional academic comment. One student com-mentator concluded that cases recognizing a perpetual work-product privilege that may be overcome in cases of demon-strated need maintain "the delicate balance between reason-able inquiry through discovery and the privacy and profes-sional integrity of the adversary system." 'Comment, CivilProcedures-Discovery-Work-Product Privilege Extends toSubsequent Litigation, 27 Vand. L. Rev. 826, 833. (1974).Another student note on the issue (Note, Discovery of anAttorney's Work Product in Subsequent Litigation, 1974 DukeL. J. 7991) proposes the following test: "Under the circum-stances existing at the time o.f the preparation of the initialsuit, would there have been in the mind of a reasonable at-torney a belief that there was a substantial probability ofsignificant subsequent litigation to which his present workproduct would be relevant" (id. at 820,; emphasis in original).This test, however, is subject to, many of the same objectionsas the "related" and "potential" litigation tests. As the stu-dent commentator recognized (id. at 821), no. attorney couldpredict with confidence what a. court might view as "sig-nificant" litigation or a "substantial probability." Moreover,an attorney's trial preparation and representation might wellbe adversely affected by the knowledge that there was a chance(although so.mething less, than a "substantial probability")that such materials. might be ordered disclosed. In Note, De-velopments in the Law-Discovery, 74 Harv. L. Rev. 940, 1044(1961), it is stated without analysis or elaboration that thework-product privilege should continue "so long as a likeli-hood of litigation remains." However, since the disclosure ofwork product, whether through civil discovery or the FOTA,may only be ordered in subsequent litigation, the import ofthis statement is unclear.

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5a) that "[e]xtending the work-product protectiononly to subsequently related cases best comports withthe fact that the privilege is qualified, not absolute."But simply because the privilege is qualified in onerespect-i.e., some privileged materials may be ob-tained in civil discovery where sufficient need isshown (see Fed. R. Civ. P. 26(b) (3))-it does notfollow that the privilege must be qualified in everyother respect as well. Merely because a particularlitigant's need for privileged materials may jus.tifydisclosure, it does not follow that the interests servedby the privilege lose all force "[w]hen litigation hasended and no potential for related actions exists"(Pet. App. 6a).

The court next stated (Pet. App. 6a, quoting Jor-dan v. U.S. Department of Justice, 591 F.2d 753, 775(D.C. Cir. 1978); citations omitted; emphasis inoriginal):

The purpose of the privilege * * * "is, to encour-age effective legal representation within theframework of the adversary system by removingcounsel's fears that his thoughts and informationwill be invaded by his adversary * * *" There-fore, in order to fall within the scope of the priv-ilege a document "must 'relate to the conduct ofeither ongoing or prospective trials * * *.'" [12]

12 The quotation from Jordan that work product must "re-late to the conduct of either ongoing or prospective trials"(591 F.2d at 775-776) is taken out of context in the, panelopinion, and its meaning is distorted. The point the Jordancourt was making was that certain documents were not; workproduct because they were not "prepared in anticipation of aparticular trial" or "of trials in general" but "were promul-gated as general standards to guide the Government lawyers"(id. at 775). The quoted sentence meant that a documentcannot be work product unless, when made or compiled, it re-

This is faulty logic. As we have argued, a lawyer'sfears about the possibility that his files may be dis-closed after all related proceedings have terminatedmight discourage him from amassing materials. inpreparation for trial or preserving those files afterthe case has ended. As a result, "effective legal repre-sentation within the framework of the adversary sys-tem" would be undermined.

Finally, the court stated (Pet. App. 6a; emphasisin original):

Moreover, we deal in this case, not with thecivil discovery situation, but rather with a Free-dom of Information Act request. Here, the pre-sumption in favor of disclosure is at its zenith."[D]isclosure, not secrecy, is the dominant ob-jective of the Act." Dep't of Air Force, v. Rose,425 U.S. 352, 361 * * * (1976).

This reasoning is also fallacious. Just because "dis-closure, not secrecy, is the dominant objective of[FOIA]," it does not follow, as respondent main-tains (see Br. in Opp. 10) and the court below sug-gested, that greater disclosure should be available ina FOIA suit than in civil discovery. On the contrary,as we will show, such an interpretation of the FOIAwould contravene both the plain language and legis-lative history of Exemption 5 (see NLRB v. Sears,Roebuck & Co., supra, 421 U.S. at 149); FOMC v.Merrill, supra, 443 U.S. at 353) and would produceabsurd results.

lated to "ongoing or prospective trials" (id. at 775-776).There is no question that the documents at issue here wereprepared in contemplation of specific litigation and accord-ingly were covered by the work-product privilege at leastinitially.

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B. Even if work product may be disclosed 1n civil dis-covery when the case for which it was prepared hasended and no related case exists or potentially exists,the work product of government attorneys is never-theless exempt from mandatory disclosure under theFOIA

As previously noted, the work-product privilege isqualified in civil discovery. Facts in an attorney's filethat are "essential to the preparation of [an adver-sary's] case" may be discovered upon a showing ofnecessity. Fed. R. Civ. P. 26 (b) (3); Hickman v. Tay-lor, supra, 329 U.S. at 511. However, "[i]n order-ing discovery of such materials when the requiredshowing has been made," courts must "protectagainst disclosure of the mental impressions, conclu-sions, opinions, or legal theories of an attorney * * *concerning the litigation" (Fed. R. Civ. P. 26(b) (3);see also Notes of Advisory Committee on 1970Amendment to Rules, 28 U.S.C. App. at 442; UpjohnCo. v. United States, supra, 449 U.S. at 399-401). Be-cause the work-product privilege is qualified, the par-ticular circumstances of the party requesting discov-ery-for example, the party's need for the material inpreparing his case-are an important factor in de-termining whether the privilege will be honored.Moreover, in civil discovery, a court may enter a pro-tective order permitting disclosure of work productonly to particular persons and "only on specifiedterms and conditions" (Fed. R. Civ. P. 26(c) (2)).

Under the FOIA, by contrast, such an individual-ized approach is not possible. The FOIA does not "byits terms, permit inquiry into particularized needsof the individual seeking the information, althoughsuch an inquiry would ordinarily be made of a pri-vate litigant." EPA v. Mink, 410 U.S. 73, 86 (1973).Instead, the FOIA requires information subject to

disclosure to be made "available to any person" (5U.S.C. 552 (a) (3)), and a large percentage of FOIArequests. are made,by firms and individuals, actingin a representative capacity precisely so that the iden-tity of the person, company, or organization seekingthe information will not be known. For these reasons,"at best, the discovery rules can only be applied underExemption 5 by way of rough analogies." EPA v.Mink, supra, 410 U.S. at 86. Accordingly, in NLRBv. Sears, Roebuck & Co., supra, 421 U.S. at 149, thisCourt held that "it is reasonable to construe Exemp-tion 5 to exempt those documents, and only thosedocuments, normally privileged in the civil discoverycontext." The Court carefully emphasized (id. at 149n.16) that "it is not sensible * * * to require dis-closure of any document which would be disclosed inthe hypothetical litigation in which the private party'sclaim is the most compelling." Rather, the questionis whether the information sought would "'routinelybe disclosed' in private litigation" (ibid., quotingH.R. Rep. No. 1497, 89th Cong., 2d Sess. 10 (1966)).

The reason for this construction of Exemption 5 isobvious. If, for example, a person making an FOIArequest for work-product materials were deemed tostand in the shoes of a hypothetical civil litigantcapable of demonstrating a compelling need for dis-closure, the qualified work-product privilege recog-nized in civil discovery would be rendered meaning-less in government litigation. Any civil litigant un-able or unwilling to, make the showing required fordiscovery of work product under Fed. R. Civ. P.26(b) (3) could simply file an FOIA request, and hewould automatically be treated as if such a showinghad been made. In order to prevent such incongruousresults, persons filing FOIA requests must be treatedlike civil litigants with the least compelling claim for

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disclosure, i.e., litigants incapable of showing anyspecial need for the documents sought. Such personsare accordingly entitled to only those materialsthat would be available in civil discovery based upona simple showing of relevance (Fed. R. Civ. P.26(b) (1)). In other words, they are entitled to onlythose documents that would " 'routinely be disclosed'in private litigation" (NLRB v. Sears, Roebuck &Co., s,tpra, 421 U.S. at 149 n.16, quoting H.R. Rep.No. 1497, supra, at 10).

Applying this teaching to the question presentedby the instant case yields a result precisely oppositeto that reached by the court of appeals. Of course,if the work-product privilege is perpetual in the con-text of civil discovery, then work product from termi-nated litigation would not be available under theFOIA regardless of whether there was any potentialfor related litigation. But even if, as the court belowsuggested (Pet. App. 4a), "the work-product privi-lege extends to subsequent cases only when they arerelated," it would not follow that "in the context ofan FOIA request, attorney work-product from termi-nated litigation remains exempt from disclosure onlywhen litigation related to the terminated action ex-ists or potentially exists" (id. at 7a; emphasis inoriginal). On the contrary, work product from termi-nated litigation would not be "routinely" available incivil discovery because it would be available only (a)in unrelated cases where there was also no potentialfor subsequent related cases or (b) where sufficientneed could be shown. As noted, in order to preservethe limitations imposed upon the disclosure of workproduct in civil discovery, a person seeking such ma-terial pursuant toi an FOIA request must be deemedto stand in the shoes of a hypothetical civil litigantwith the least compelling claim for disclosure-in this

U. S. GOVCRNMENT PRINTING OFFICE; 1983 395773 1244

instance!, a litigant in a related case who! is unable todemonstrate special need for the documents. Conse-quently, even if the work-product privilege is subjectto the limitations suggested by the court of appeals,the work product of government attorneys would beprotected under Exemption 5 of the FOIA.

CONCLUSION

The judgment of the court of appeals should bereversed.

Respectfully submitted.

REX E. LEESolicitor General

J. PAUL MCGRATHAssistant Attorney General

KENNETH S. GELLERDeputy Solicitor General

SAMUEL A. ALITO, JR.Assistant to the Solicitor General

LEONARD SCHAITMANAttorney

JANUARY 1983

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