Earlier this week, a D.C. Circuit panel was not persuaded by the National Association of Criminal Defense Lawyers’ (NACDL) arguments that the U.S. Department of Justice (DOJ) should disclose the Federal Criminal Discovery Blue Book under the Freedom of Information Act (FOIA). The panel upheld a lower court’s decision that the manual falls under the FOIA’s attorney work-product protection.
After the late Alaska Sen. Ted Stevens was convicted in a federal corruption trial, only to have that conviction dismissed after the DOJ prosecutors’ “egregious misconduct” of withholding exculpatory evidence from the defense was discovered, the DOJ created the Blue Book.
According to the DOJ’s argument in the NACDL lawsuit, the Blue Book is not a “neutral analysis of the law.” Rather, the office claimed, it “contains confidential legal analysis and strategies to support the Government’s investigations and prosecutions” and would “essentially provide a road map to the strategies federal prosecutors employ in criminal cases.”
For the NACDL, access to the Blue Book is essential in ensuring that DOJ has reforms in place that will prevent the discovery abuses that occurred in the Stevens case.
Senior Circuit Judge David B. Sentelle, who agreed with the decision because precedent compelled him to, stated in the decision:
“I cannot help but wonder if an insurance defense attorney had written a secret treatise passed around among his bar on how to defend — for example — defective product cases, would we, if that treatise became relevant in specific litigation, afford the protection of the attorney-client privilege to a document not prepared for a particular client or a particular case, but only to educate attorneys of a particular sort in the litigation of a particular kind of case? I think not. But even if we did, I do not think this would justify stretching the FOIA exemption to the point of protecting the departmental tactics and strategies in criminal prosecution from discovery by the citizenry.”
DOJ National Criminal Discovery Coordinator Andrew Goldsmith, one of the original leaders in development of the Blue Book, was pleased after the original 2014 ruling by U.S. District Judge Colleen Kollar-Kotelly. In an interview with Law360, he stated at that time:
“If the ‘Blue Book’ were released and defense counsel nationwide knew how the government would likely litigate discovery-related motions, they would have unfair — and potentially dangerous — insight into the prosecution’s approach to discovery in criminal cases.”
Likely, he is pleased once again with the D.C. Circuit panel’s recent decision.