United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge.
The Court ordered a hearing on defendant Edward Novak's motion to suppress the fruits of a search warrant. Novak contends the warrant was procured by knowingly material misrepresentations and omissions. To obtain a hearing, Novak was required to make "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and... the allegedly false statement is necessary to the finding of probable cause." Franks v. Delaware, 438 U.S. 154, 155-56 (1978); see also United States v. McMurtrey, 704 F.3d 502, 508-09 (7th Cir. 2013) (applying Franks to misleading omissions).
The law enforcement officer whose affidavit was submitted in support of the warrant, an agent of the Federal Bureau of Investigation, is expected to testify at the hearing, which is set for Tuesday, September 29, 2014. In anticipation of the hearing, the government has produced some materials to defense counsel but has resisted production of other materials that the defense seeks. The government contends these materials are subject to one or more privileges, in particular the deliberative process privilege or the work product doctrine. It has provided these documents for in camera review.
The second set of documents, which the government provided to the Court on Friday, September 26, 2014, consists of the unredacted versions of internal agency reports seeking approval for consensual monitoring by certain cooperating witnesses. The Court is not in a position to make a ruling on this material without further information from the government regarding the purpose for which the redacted versions have been disclosed to defense counsel. Ruling on that set of documents is therefore deferred.
The first set of documents consists of two earlier drafts of the FBI agent's affidavit that was submitted to obtain the search warrant and e-mail correspondence regarding the drafts between prosecutors and the agent and another investigating agent. The Court concludes that these documents are not protected by the privileges the government cites.
For the deliberative process privilege, the government cites United States v. Zingsheim, 384 F.3d 867 (7th Cir. 2004). In that case, a district judge had issued a "standing order" regarding procedures in all cases in which the government was, at sentencing, moving for a downward departure pursuant to U.S.S.G. § 5K1.1 based upon the defendant's substantial assistance to law enforcement. The order required the government, in any such case, to produce (among other things) recommendations by law enforcement and prosecutorial supervisory personnel approving the proposed sentencing departure, as well as a written report from a committee within the prosecutor's office memorializing the approval process. Zingsheim, 384 F.3d at 869. The Seventh Circuit identified several problems with the district judge's standing order. Among other things, the court stated that "[m]ultiple privileges apply to most if not all of the matters" in question. The court stated:
The attorney-client privilege covers conversations between prosecutors (as attorneys) and client agencies within the government. The work-product privilege applies to many other discussions between prosecutors and investigating agents, both state and federal. The deliberative-process privilege covers memoranda and discussions within the Executive Branch leading up to the formulation of an official position. And the executive privilege shields recommendations to high-ranking officials.
Id. at 871-72 (citations omitted). In the present case, the government does not rely upon (and in any event has made no showing supporting) the attorney-client privilege or executive privilege with regard to the drafts of the affidavit or the correspondence about those drafts.
The government's reliance on the deliberative process privilege is unavailing. That privilege, as the Seventh Circuit summarized it in Zingsheim, "covers memoranda and discussions... leading up to the formulation of an official position." Id. at 872. The Supreme Court decision concerning this privilege that the Seventh Circuit cited in Zingsheim indicated that the privilege's purpose "is to prevent injury to the quality of agency decisions" and that the privilege "protect[s] the decision making processes of government agencies" by "focus[ing] on documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (internal quotation marks omitted).
Based on Zingsheim, an "official position" that brings the deliberative process privilege into play evidently can include a position taken by the government in litigation - in Zingsheim, determination of whether to seek a departure under U.S.S.G. § 5K1.1. But that is not what is at issue here. The draft affidavits and correspondence concern formulation not of a litigation position but rather of testimony to be presented to a court by a witness, namely the FBI agent. The government cites no case saying that the deliberative process privilege covers discussions between the government and a witness, even a law enforcement witness, regarding that person's anticipated testimony.
The work product privilege likewise does not preclude disclosure of the draft affidavits and correspondence. As indicated in the Supreme Court decision that the Seventh Circuit cited in Zingsheim, the work product doctrine recognizes "a qualified immunity from discovery for the work product of [a] lawyer.'" FTC v. Grolier Inc., 462 U.S. 19, 24 (1983) (quoting Hickman v. Taylor, 329 U.S. 495, 511 (1947)). In Hickman, the Court stated that
[w]ere such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.
Hickman, 329 U.S. at 511.
The work product privilege is not absolute, however, and it is overcome by a showing of substantial need. As ...