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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Civil No. 16-CV-556 JRT-HB UPSHER-SMITH LABORATORIES, INC., Plaintiff, v. FIFTH THIRD BANK, Defendant.

MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DISCOVERY OF THIRD PARTY UNITED STATES DEPARTMENT OF JUSTICE

The United States Department of Justice (DOJ) respectfully submits this opposition to Defendant Fifth Third Bank’s (Fifth Third) motion to compel. Fifth Third has requested law enforcement records via a Freedom of Information Act (FOIA) request, a Rule 45 third-party subpoena directed at Special Agent in Charge Richard Thornton, and a request under the DOJ’s Touhy regulations, 28 C.F.R. § 16.21 et seq. 1 Fifth Third moves the Court to compel DOJ to produce the requested investigative records under FOIA and Rule 45. However, the Court lacks subject matter jurisdiction under FOIA and the federal discovery rules to compel production. Specifically, jurisdiction under FOIA depends on the requester filing a complaint against the federal agency alleging a proper FOIA claim.

1

So-called “Touhy regulations” govern a federal agency’s processing of and response to a request for agency records or testimony of federal employees in matters to which the United States or its agencies are not a party. See U.S. ex rel. Touhy v. Ragen. 340 U.S. 462 (1951).

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Fifth Third cannot challenge the FBI’s denial of its FOIA request or seek relief under FOIA in a third party motion to compel. Rather, Fifth Third must file a proper FOIA claim, which is resolved on a complete agency record in a dispositive motion for summary judgment. Further, Fifth Third cannot compel compliance with a subpoena under the discovery rules when the government is not a party to the litigation, as is the case here. The Federal Rules of Civil Procedure do not waive the United States’ sovereign immunity. Rather, the only avenue for review of an agency’s denial of a Touhy request is under the Administrative Procedure Act (APA), which provides for a narrow and deferential standard of review of agency action. Fifth Third has neither brought an APA claim, nor demonstrated in the instant motion that the DOJ’s Touhy denial was arbitrary, capricious, an abuse of discretion, or contrary to law. The facts here ably demonstrate that DOJ’s denial of Fifth Third’s request was necessary under the investigative files privilege . Thus, the Court should deny this motion in its entirety. ARGUMENT I.

NEITHER FOIA NOR THE DISCOVERY RULES PROVIDE A VALID WAIVER OF SOVEREIGN IMMUNITY TO PROCEED AGAINST THE UNITED STATES IN THIS MOTION. Under the doctrine of sovereign immunity, courts lack jurisdiction to hear suits

against federal agencies and their officers absent an explicit statutory waiver of sovereign immunity. United States v. Shaw, 309 U.S. 495, 500-01 (1940); United States v. Kearns, 177 F.3d 706, 709 (8th Cir. 1999). Courts strictly construe “in favor of the sovereign” statutes purporting to waive sovereign immunity. Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999). It is Fifth Third’s burden to demonstrate that there is specific

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statutory authorization to sue a federal agency or its officers. V. S. Ltd. P’ship v. HUD, 235 F.3d 1109, 1112 (8th Cir. 2000). A.

Fifth Third must file a separate complaint under FOIA to invoke the Court’s jurisdiction.

The Court’s jurisdiction under FOIA depends on the requester filing a proper separate complaint against a federal agency. The requirement of filing a complaint is plain from the statutory language that waives the federal agency’s sovereign immunity under FOIA: “On complaint, the district court of the United States . . . has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B) (emphasis added); see Lincoln Nat’l Bank v. Lampe, 421 F. Supp. 346, 348-49 (N.D. Ill. 1976) (in case with nearly identical facts, holding that a FOIA requester who also sought records in a subpoena duces tecum must file a separate complaint under FOIA to invoke the court’s jurisdiction to enjoin the withholding of agency records); Santini v. Herman, 456 F. Supp. 2d 69 (D.D.C. 2006) (same); Burrell v. Rodgers, 438 F. Supp. 25 (W.D. Okla. 1977) (same). A FOIA complaint is nearly always resolved without trial on a dispositive motion for summary judgment, based on agency declarations documenting the search for records and the legal basis for any records withheld from the requester. See, e.g., Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 1985); see also Georgacarakos v. F.B.I., 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (“FOIA cases typically and appropriately are decided on motions for summary judgment.”). Therefore, in addition to the problem of a clear lack

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of jurisdiction, Fifth Third’s non-dispositive motion essentially seeks summary judgment on the issue of whether DOJ’s FOIA response complies with the statutory requirements. Should Fifth Third file a proper FOIA complaint, DOJ is entitled to the opportunity to compile the record for review and make its arguments to the Court under the summary judgment standard in dispositive motion practice. See New York v. Salazar, 701 F. Supp. 2d 224, 233 (N.D.N.Y. 2010) (holding allegations of FOIA violations raised in motion to compel must be addressed to the district judge); Robbins v. U.S. Bureau of Land Mgmt, 219 F.R.D. 685, 688 (D. Wy. 2004) (denying plaintiff’s motion to compel documents in FOIA action, reasoning that motion to compel was procedurally improper in FOIA suit). Fifth Third does not cite a single case in its brief (nor is the Government aware of any) holding that Fifth Third can invoke the Court’s jurisdiction under FOIA by a third party motion to compel, without filing a FOIA complaint. Fifth Third’s citation to U.S. EPA v. General Electric, from the Second Circuit, is unavailing, because that case does not support Fifth Third’s proposition that it can appeal its FOIA request in a motion to compel. 197 F.3d 592 (2d Cir. 1999); Fifth Third’s Mem. in Supp. of Mot. to Compel, ECF No. 72, at 8. Rather, the General Electric court held that an agency’s denial of a Touhy request may be considered via a motion to compel under the Administrative Procedure Act. Id. at 598. The Government will discuss APA review of a Touhy denial in more detail below, but it should go without saying that a Touhy request is not a FOIA request, and the APA is not FOIA. Fifth Third asserts that the FOIA statutory requirements, including FOIA’s standard of review, apply to this motion, but this is mistaken. E.g. Fifth Third’s Mem. in Supp., at

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11. In a properly plead FOIA case in which the Court has jurisdiction, the federal agency has the burden of demonstrating compliance with FOIA requirements, and the agency will often be required to file an index of the records withheld, called a Vaughn index 2 (which is akin to a privilege log in traditional civil discovery). Because Fifth Third has not properly invoked the Court’s jurisdiction under FOIA, the Government has no burden to demonstrate its compliance with FOIA in this motion, nor any obligation to provide a Vaughn index, as Fifth Third requests. All of the cases Fifth Third cites in support of applying FOIA requirements to its motion to compel are cases in which the FOIA requester properly filed a FOIA complaint, giving the court jurisdiction, and the cases were determined in a motion for summary judgment, as referenced above. See, e.g., Fifth Third’s Mem. in Supp., at 11, 22. Without filing a FOIA complaint, Fifth Third cannot obtain judicial review of DOJ’s FOIA response, and Fifth Third’s reliance on FOIA’s standard of review and other statutory requirements in this motion is improper. B.

There is no waiver of sovereign immunity in Rule 45, and the Court cannot compel a federal officer to comply with a subpoena in violation of the agency’s Touhy decision to withhold.

The DOJ’s Touhy regulations govern the procedure for evaluating a request for FBI records when the government is not a party to the litigation. 28 C.F.R. § 16.21 et seq. All federal agencies have so-called Touhy regulations, named after the U.S. Supreme Court’s 1951 ruling in U.S. ex rel. Touhy v. Ragen, which upheld the validity of such regulations.

2

See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).

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340 U.S. 462 (1951). In that case, an inmate (Touhy) of a state penitentiary filed a habeas corpus proceeding against his warden in federal court, alleging Due Process violations. Touhy issued a subpoena duces tecum upon the Special Agent in Charge of the FBI in Chicago, seeking records Touhy believed to be relevant to his claim. Id. at 464-65. DOJ evaluated the request under its regulations that governed the release of agency records at that time, and denied the request. The district court then held the Special Agent in Charge in contempt of court when he refused to the produce the records, but the court of appeals reversed. Id. at 465. The Supreme Court upheld the DOJ’s regulations, and affirmed that the FBI agent could not be held in contempt for refusing to produce the records in contravention of his agency’s determination. Id. at 468. In so holding, the Court reasoned: When one considers the variety of information contained in the files of any government department and the possibilities of harm from unrestricted disclosure in court, the usefulness, indeed the necessity, of centralizing determination as to whether subpoenas duces tecum will be willingly obeyed or challenged is obvious. Hence, it was appropriate for the Attorney General, pursuant to the authority given him by 5 U.S.C. s 22, 5 U.S.C.A. s 22, to prescribe regulations not inconsistent with law for ‘the custody, use, and preservation of the records, papers, and property appertaining to’ the Department of Justice, . . . . Since the Touhy decision, numerous courts have denied motions to compel compliance with a subpoena directed at a federal officer and/or granted the government’s motion to quash where, as here, the government is not a party to the proceeding, and the agency denied the request under its Touhy regulations. See, e.g., Reifsteck v. Paco Bldg. Supply Co., 410 F. Supp. 2d 848 (E.D. Mo. 2006) (granting motion to quash subpoena seeking testimony and documents from EEOC mediator after EEOC denied the request);

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Boron Oil Co. v. Downie, 873 F.2d 67, 73 (4th Cir. 1989) (holding EPA had not waived sovereign immunity, quashing subpoena of EPA employee served in state proceeding where EPA had instructed the employee not to testify); Saunders v. Great W. Sugar Co., 396 F.2d 794, 795 (10th Cir. 1968) (vacating district court order demanding compliance with subpoena duces tecum directed at federal officials where agency had determined the documents were privileged); Moore v. Armour Pharm. Co., 927 F.2d 1194, 1197-98 (11th Cir. 1991) (affirming district court’s decision to quash subpoena for testimony by federal employees where request was denied by the agency). The Second Circuit’s decision in General Electric, cited by Fifth Third, correctly holds that there is no waiver of sovereign immunity under the discovery rules to compel a non-party federal employee or agency to produce records. General Electric, 197 F.3d at 597; see Fifth Third Mem. in Supp., at 8. In General Electric, the defendant in federal environmental litigation moved to enforce a subpoena duces tecum served on the EPA, which was not a party to the litigation. Id. at 593. The court held that a motion to compel was a judicial proceeding that could not be brought against a federal agency without a valid waiver of sovereign immunity. Id. at 597. “The rules governing discovery and the issuance of subpoenas duces tecum for the production of documents by third parties include no express waivers of the type necessary to subject the government to compulsion in judicial proceedings to which it is not a party.” Id. at 598. The General Electric court held that only the APA provided the requisite waiver, which will be discussed in greater detail below. Id., amended on rehearing by U.S. EPA v. General Electric, Co., 212 F.3d 689 (2d

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Cir. 2000) (remanding determination of the applicable standard of review to the district court). Other courts have reached the same conclusion as General Electric under slightly different reasoning, holding that Rule 45’s use of the term “person” does not apply to federal employees or agencies. Rule 45 provides: “Every subpoena must . . . command each person to whom it is directed to . . . produce designated documents . . . .” The U.S. Supreme Court has held several times that there is a presumption the term “person” does not include the sovereign, absent some affirmative showing of statutory intent to the contrary. See Robinson v. City of Philadelphia, 233 F.R.D. 169, 172 (E.D. Pa. 2005) (quoting Vt. Agency of Nat’l Res. V. U.S. ex rel. Stevens, 529 U.S. 765, 780 (2000); Int'l Primate Prot. League v. Adm'rs of Tulane Educ. Fund, 500 U.S. 72, 82–83 (1991)) (citing additional cases). Thus, Rule 45 is not enforceable against federal officials. Robinson, 233 F.R.D. at 172-73 (denying motion to compel compliance with federal subpoenas issued to the FBI for documents and testimony pertaining to active criminal investigation). In conclusion, Rule 45 does not provide a basis for the Court’s subject matter jurisdiction, and the subpoena issued to Special Agent in Charge Thornton is unenforceable. 3

3

The government has not filed an affirmative motion to quash the subpoena in response to Fifth Third’s motion to compel based on considerations of judicial efficiency and to avoid delaying a decision on this matter. Following service of the subpoena on Mr. Thornton, undersigned counsel contacted counsel for Fifth Third, who agreed to forgo the delivery date on the subpoena and pursue a proper Touhy request under DOJ’s regulations, CITE, obviating the need at that time for a motion to quash. Now that Fifth Third has filed a motion to compel, the validity and enforcement of the subpoena in these circumstances are fully and squarely before the Court, and the government views a denial of Fifth Third’s

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II.

THE APA PROVIDES THE ONLY AVENUE FOR REVIEW OF THE DOJ’S DECISION TO WITHHOLD REQUESTED RECORDS IN THIS CASE, AND THE APA’S DEFERENTIAL STANDARD OF REVIEW APPLIES. As General Electric and other decisions hold, the only waiver of sovereign

immunity to challenge an agency’s denial of a non-party request for agency records is found in the APA. General Electric, 197 F.3d at 597; Moore, 927 F.2d at 1197. Further, the Eighth Circuit has considered this question in the context of a subpoena duces tecum issued against a third-party tribal government. Alltel Commc’ns, LLC v. DeJordy, 675 F.3d 1100, 1103 (8th Cir. 2012). In holding that the tribal government was immune from enforcement of the subpoenas, the Dejordy court reasoned by analogy from General Electric and similar cases, recognizing the importance of sovereign immunity and application of the APA’s waiver when the federal government is subject to a third-party subpoena. Id. at 1103-04 (“[Third-party subpoenas] command a government unit to appear in federal court and obey whatever judicial discovery commands may be forthcoming. The potential for severe interference with government functions is apparent.”) The Eighth Circuit has yet to directly determine the standard of review that applies to this motion, and there is a split of authority among the circuits that have considered the question.

As discussed, some courts have held that the Rule 45 subpoena is not

enforceable, but that the agency’s Touhy decision is reviewable under the APA’s § 706(2)(A) standard of review, see Moore, 927 F.2d at 1197, while other courts have applied

motion to compel under Rule 45 as the functional equivalent of the Court granting a motion to quash. Should the Court not reach the question of enforcement of Fifth Third’s subpoena, and/or Fifth Third persists in its attempts to enforce it, the government reserves the right to move the Court to quash the subpoena at a later date.

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the more lenient standard under the discovery rules to determine whether to enforce the subpoena. See Exxon Shipping Co. v. U.S. Dep’t of Interior, 34 F.3d 774, 779-80 (9th Cir. 1994). This Court has considered the proper standard of review and determined that the APA’s § 706(2)(A) arbitrary and capricious standard applies. In Elnashar v. Speedway Superamerica, LLC, Magistrate Judge Mayeron considered the plaintiff’s motion to compel the FBI, a non-party to the plaintiff’s federal employment discrimination suit, to provide information relating to a confidential FBI informant.

Order, Civil No. 02-

4133(JNE/JSM) (D. Minn. Sept. 7, 2004), Doc. No. 84; see Declaration of Pamela Marentette (Marentette Decl.), Ex. 1. Elnashar requested the information in a 30(b)(6) deposition notice. The FBI responded that it was not subject to Rule 30(b)(6) or Rule 45 as a non-party, and that the information would not be provided consistent with DOJ’s Touhy regulations and the confidential informant’s privilege. Id. at 5-6. In determining Elnashar’s motion to compel, the Court held that the APA’s waiver of sovereign immunity and standard of review applied. The Court explicitly rejected the Ninth Circuit’s holding in Exxon Shipping Co., 34 F.3d at 779-80, reasoning that the genesis of the Government’s waiver of sovereign immunity is the APA. This, coupled with the fact that Elnashar is essentially asking this Court to review the actions taken [by] a federal agency pursuant to its regulations, bring this Court to the conclusion that the APA's arbitrary and capricious standard, . . . as opposed to the more lenient standard under Federal Rules of Civil Procedure, should govern this motion. Id. at 16 n.5. The Court then upheld the government’s decision to deny Elnashar’s request, holding that the FBI’s application of the confidential informant’s privilege was reasonable.

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Id. at 17. The District Court summarily affirmed the decision. Order, Elnashar, Civil No. 02-4133 (Oct. 24, 2004), Doc. No. 92; Marentette Decl., Ex. 2. On appeal, the Eighth Circuit upheld the District Court’s denial of the motion to compel, but it did not explicitly discuss the application of the APA standard of review.

Elnashar v. Speedway

Superamerica, 484 F.3d 1046, 1053 (8th Cir. 2007). This Court should follow Elnashar in this case and apply the APA’s § 706(2)(A) standard of review to this motion. Where the APA provides the only limited waiver of sovereign immunity to review an informal agency decision, such as the one at issue here, the APA also provides the applicable standard of review. See, e.g., Cabral v. U.S. Dep’t of Justice, 587 F.3d 13, 22-23 (1st Cir. 2009) (reviewing FBI’s Touhy denial under APA standard of review, holding FBI’s determination was reasonable); COMSAT Corp. v. Nat’l Science Found., 190 F.3d 269, 274 (4th Cir. 1999); CF Indus., Inc. v. DOJ, et al., – Fed. App’x – , 2017 WL 2544160, at *3-*4 (5th Cir. June 9. 2017). This is consistent with the Supreme Court’s discussion of the application of the APA in other contexts, in which the Court has stated that “[t]he scope of judicial review under § 702, however, is circumscribed by § 706.” Webster v. Doe, 486 U.S. 592, 597 (1988). This is also consistent with the Eighth Circuit’s application of the APA waiver and standard of review in similar types of informal agency decisions. See, e.g., Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1184 (8th Cir. 2000) (applying § 706(2)(A) in “reverse” FOIA case, where APA provides the waiver of sovereign immunity to enjoin agencies from releasing disputed information). Most importantly, it is consistent with the doctrine of sovereign immunity, which requires courts to construe a waiver of sovereign

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immunity narrowly and in favor of the sovereign. Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999). III.

DOJ’s

TOUHY

DECISION

TO

WITHHOLD

WAS REASONABLE. Under APA § 706(2)(A), the Court’s review is limited to ascertaining whether the agency considered the relevant information and provided a satisfactory explanation for its decision. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). The “arbitrary and capricious” standard of review is a narrow one. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, at 416 (1971), abrogated on unrelated issue by Califano v. Sanders, 97 S.Ct. 980 (1977). Something more than mere error is necessary to meet the test. N.L.R.B. v. Parkhurst Mfg. Co., 317 F.2d 513, 518 (8th Cir. 1963). The party challenging agency action bears the burden of meeting this standard. Id., see also First Nat. Bank of Fayetteville v. Smith, 508 F.2d 1371, 1376 (8th Cir. 1974). Fifth Third has not and cannot meet its required burden here. In its Rule 45 subpoena, Fifth Third broadly requested the FBI’s “entire file” relating to its investigation of the fraudulent wire transfers; “any and all communications from or with third parties” relating to the FBI’s investigation, and “any and all documents” relating to the FBI’s findings in the investigation. Declaration of Victor Walton (Walton Decl.), Ex. K, Doc No. 73-11. In response, DOJ, acting through undersigned counsel, appropriately declined to comply with the subpoena and referred Fifth Third to its Touhy regulations, inviting Fifth Third to make a request according to those procedures. Id., Ex. L, Doc No. 73-12. Fifth Third then made a proper written Touhy request, slightly narrowing the scope to all

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documents in the FBI’s investigative files relating to Upsher-Smith. Id., Ex. M, Doc No. 73-13. In response, DOJ provided a written decision, consisting of two letters, explaining its application of the Touhy regulations to Fifth Third’s request, listing the factors considered, and providing the reasons why the requested documents are exempt from disclosure under the investigatory files privilege. Walton Decl., Exs. N, P, Doc Nos. 7314, 73-16. As demonstrated by the written decision, DOJ considered the proper regulations and relevant information, and provided a reasonable and satisfactory explanation for its decision. Motor Vehicle Mfrs. Ass’n of U.S., Inc., 463 U.S. at 43. Specifically, DOJ relied on the applicable regulations and followed the proper procedure for analyzing Fifth Third’s request. The U.S. Attorney may only produce requested information where the originating component in control of the information (here, the FBI) does not object, and the disclosure is appropriate under the factors provided in 28 C.F.R. § 16.26(b). See 28 C.F.R. 16.24(b). DOJ informed Fifth Third that the FBI objected to the disclosure, and § 16.26(b)(5) applied to the records. Walton Decl., Ex. N. Section 16.26(b)(5) pertains to disclosure that would “reveal investigatory records compiled for law enforcement purposes, and would interfere with enforcement proceedings or disclose investigative techniques and procedures the effectiveness of which would thereby be impaired.” DOJ further explained that disclosure was inappropriate under § 16.26(a)(1)(2), because the request was overbroad and burdensome, and the records were subject to the investigatory files privilege. Id., Ex. P.

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A.

The investigatory files privilege applies to the requested records.

DOJ provided a thorough basis for its determination that the requested files are privileged as law enforcement records. DOJ explained that it had considered the purpose behind the investigatory files/law enforcement privilege, which is to protect law enforcement proceedings and methods from public disclosure that would impair investigations. See In re The City of New York, 607 F.3d 923, 944-45 (2d Cir. 2010); In re U.S. Dep’t of Homeland Security, 459 F.3d 565, 569-70 (5th Cir. 2006); see also Kuehnert v. FBI, 620 F.2d 662 (8th Cir. 1980) (analyzing law enforcement privilege and affirming the FBI’s determination to withhold investigative records in the analogous context of FOIA Exemption 7). DOJ also stated it had considered the factors often relied on by federal courts to determine whether the “strong presumption against lifting the privilege” should give way, In re City of New York, 607 F.3d at 945, including whether the requester has a compelling need for the information, and whether the information is available from any other source. Id.

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In the meet and confer process, Fifth Third further narrowed its request, seeking any recorded or written statements taken by the FBI of Upsher-Smith witnesses. In response, DOJ confirmed that the only responsive record is the FBI’s interview report of UpsherSmith witness Christine Hopper, the former Senior Accounts Payable Coordinator (Hopper 302). Walton Decl., Ex. Q, Doc No. 73-17. Ms. Hopper was the person contacted by the individuals who perpetrated the fraud against Upsher-Smith, and she authorized the transactions.

Thus, the record supports that DOJ considered the appropriate standards and information in its determination that the investigatory files privilege applies to the requested records. B. Fifth Third did not demonstrate a compelling need for the requested records. In its Touhy request, Fifth Third stated that the requested records were “both relevant and critical” to its defense of the civil suit, because the contemporaneous statements of Upsher-Smith employees “will contradict Upsher-Smith’s current allegations

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against the Bank.” Walton Decl., Ex. M, at 2. However, as the government indicated in its written response, this assessment is based only on speculation. Walton Decl., Exs. P, Q. The government understands that Fifth Third has not taken the deposition of Ms. Hopper. As a former Upsher-Smith employee, Ms. Hopper (and any others) can be compelled to provide testimony under Rule 45, and Fifth Third has not made any showing that she is not amendable to service or would resist the subpoena. Further, Fifth Third’s stated need for the FBI’s interview reports and related documents is based in part on the speculation that Upsher-Smith’s witnesses will be untruthful under oath. Id., Ex. Q. Specifically with respect to Ms. Hopper, the government understands her attorney was present for her FBI interview. In the event that Ms. Hopper would testify falsely, counsel would have the affirmative ethical duty to correct any misstatements to the Court of which he was aware. Minn. Rules of Prof’l Conduct 3.3; Fed. R. Civ. Proc. 11.

In addition, Fifth Third may compel non-privileged

contemporaneous records from Upsher-Smith and rely on its own witnesses and contemporaneous documents in support of its defenses. Finally, it is important to note that the Hopper 302 is not a verbatim witness statement or transcript. Rather, the 302 is a summary of the witness’ statement drafted by the investigative agent, Thornton Decl., § 7, and as such, Fifth Third overstates its value as an impeachment tool. Thus, while DOJ recognizes that the requested records may be considered relevant under Rule 26, the circumstances here fall considerably short of Fifth Third’s high hurdle to overcome the investigatory files privilege, The Eighth Circuit has held that mere speculation that investigative

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records may reveal prior inconsistent statements leading to impeachment is insufficient to overcome the privilege. Stephens Produce Co. v. N.L.R.B., 515 F.2d 1373, 1377 (8th Cir. 1975) (assessing the privilege with respect to investigation by regulatory agency, reasoning that, “where, as here, the privilege has been invoked, it takes something more than the mere hope or surmise that impeaching evidence will be found in the investigatory file or in the questioning of the agency investigator to overcome it”). The record demonstrates that DOJ appropriately considered Fifth Third’s need for the requested records, including the Hopper 302, and any prejudice that would result from withholding, and its decision to deny Fifth Third’s Touhy request was reasonable. 4 C. The Court should not order the documents disclosed subject to the protective order. In the meet and confer process after DOJ issued its written decision, Fifth Third requested that the Hopper 302 be produced subject to the existing protective order in this case, and Fifth Third makes this argument in its motion to compel. Fifth Third’s Mem. in Supp., at 12, 15, 20-21. DOJ considered this request, reviewed the protective order, and determined that production subject to the protective order was not appropriate or required. See Declaration of Kyle Loven (Loven Decl.).

Thus,

4

Even under the cases cited by Fifth Third applying the more lenient discovery standards or a balancing test rather than the APA standard, see Exxon Shipping Co., 34 F.3d at 77980, there is ample support for DOJ’s decision to withhold the records, based on the

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the records are outside the scope of discovery and not subject to disclosure. Fed. R. Civ. P. 26(b)(1). Further, the protective order does not adequately protect the FBI’s interest in preventing premature disclosure. The government is not a party to the litigation, and therefore it will not be a part of the briefing in this case or present at depositions or trial to ensure that the confidential records or the contents of the records are shielded from public disclosure. Federal law enforcement agencies would face an insurmountable burden if their investigative records were discoverable under a protective order in any civil suit in which the records were relevant, despite demonstrating that the records were subject to the investigatory files privilege. 5 IV.

CONCLUSION The only agency action for which the Court has jurisdiction to review is DOJ’s

determination to deny Fifth Third’s Touhy request. The decision is reviewed under the APA, which provides the required waiver of sovereign immunity, and the standard of

5

The cases cited by Fifth Third do not demand the opposite result. In those cases, either the court found that the investigatory files privilege did not apply, that the movant had successfully demonstrated a compelling need to overcome the privilege, and/or the government was a party to the action. Floyd v. City of New York, 739 F. Supp. 2d 376, 386 (S.D.N.Y. 2010) (utilizing a protective order after determining that plaintiff had demonstrated a compelling need for the documents; government was a party to the suit); Zhao v. City of New York, 2007 U.S. Dist. LEXIS 91049 (S.D.N.Y.) (holding that requested records were not subject to the investigatory files privilege; government was a party to the suit); Aguilar v. Immigrations & Customs Enf’t, 259 F.R.D. 51, 57 (S.D.N.Y. 2009) (redacting law enforcement privilege, producing subject to a protective order in which government was a party). The court’s use of a protective order in City of New York v. Beretta U.S.A. Corp. appears unique to the type of case and the law enforcement records at issue, which consisted of extensive firearms tracing data, and is not sufficiently comparable to the privileged records here. 222 F.R.D. 51 (E.D.N.Y. 2004).

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review is also provided by the APA, which provides that the decision must be upheld unless the movant demonstrates the decision was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. On the record before the Court, DOJ’s decision to withhold the requested records was reasonable and proper. Thus, DOJ respectfully requests that the Court deny Fifth Third’s motion in its entirety. Dated: 9/11/17 GREGORY G. BROOKER Acting United States Attorney s/ Pamela Marentette BY: PAMELA A. MARENTETTE Assistant U.S. Attorney Attorney ID Number 389725 600 United States Courthouse 300 South Fourth Street Minneapolis, MN 55415 Phone: 612-664-5600 [email protected] Attorneys for the United States of America

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