State of Georgia v. United States Department of Justice

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 4, 2024 Decided August 12, 2025
No. 23-5083
STATE OF GEORGIA AND BRAD RAFFENSPERGER, GEORGIA
SECRETARY OF STATE, IN HIS OFFICIAL CAPACITY,
APPELLEES
v.
UNITED STATES DEPARTMENT OF JUSTICE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-03138)
Jeffrey E. Sandberg, Attorney, U.S. Department of Justice,
argued the cause for appellant. With him on the supplemental
briefs were Brian M. Boynton, Principal Deputy Assistant
Attorney General, Sarah E. Harrington, Deputy Assistant
Attorney General, and Mark B. Stern, Attorney.
Anuja D. Thatte argued the cause for amici curiae NAACP
Legal Defense & Educational Fund, Inc. in support of
appellant. With her on the brief were Jon M. Greenbaum, Ezra
D. Rosenberg, Pooja Chaudhuri, Janai S. Nelson, Samuel

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Spital, Leah C. Aden, Katrina Feldkamp, and Bradley E.
Heard.
Gene C. Schaerr argued the cause for appellees. With him
on the supplemental brief were Christopher M. Carr, Attorney
General, Office of the Attorney General for the State of
Georgia, Stephen J. Petrany, Solicitor General, Erik S. Jaffe,
Brian J. Field, Andrew Strain, and Bryan P. Tyson.
Before: SRINIVASAN, Chief Judge, GARCIA, Circuit Judge,
and ROGERS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SRINIVASAN.
SRINIVASAN, Chief Judge: The Freedom of Information
Act generally requires the government to disclose requested
agency records unless a statutory exemption applies. This case
involves FOIA’s Exemption 5, which allows withholding
“inter-agency or intra-agency memorandums or letters that
would not be available by law to a party . . . in litigation with
the agency.” 5 U.S.C. § 552(b)(5).
As its terms make evident, Exemption 5 assures that the
government need not disclose records under FOIA that would
be privileged from discovery in litigation—including, of
particular salience, materials protected by the attorney work-
product privilege. If not for that exemption, a party opposed to
the government in litigation would be barred from obtaining
the government’s privileged attorney work product through
discovery but could still gain access simply by filing a FOIA
request. Exemption 5 prevents FOIA from forcing the
government to bear that kind of asymmetric disadvantage in
litigation: where opposing counsel would have access to the
government’s litigation strategy notwithstanding the work-

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product privilege but the government would have no parallel
ability to overcome the privilege in the reverse direction.
The issue in this case is whether that type of imbalance
nonetheless arises whenever the government coordinates with
other parties aligned on the same side of a case. For purposes
of the work-product privilege, the government—like any
party—can communicate and share protected materials with
aligned parties without waiving the privilege. That is
especially so when the parties enter into a so-called “common-
interest” agreement designed to enable coordination and
exchanging of documents within the fold of the privilege. But
what about for purposes of FOIA? Does the government’s
sharing of attorney work product with aligned parties mean that
Exemption 5 no longer protects those privileged
communications from disclosure to the opposing side under
FOIA?
Georgia argues in this case that the answer is yes. Georgia
is a defendant in a number of consolidated lawsuits challenging
a state election law. The plaintiffs in the cases include the
federal government and several aligned parties. Those parties
entered into a common-interest agreement to protect their
ability to communicate about the cases under the umbrella of
the attorney work-product privilege. Georgia filed a FOIA
request seeking disclosure of all communications between the
federal government and aligned parties in the cases, regardless
of whether the materials would be protected from discovery in
the ongoing litigation under the work-product privilege.
According to Georgia’s argument, it does not matter if the
materials it seeks are “memorandums or letters that would not
be available by law to [it] in litigation with the agency” within
the meaning of Exemption 5. Georgia emphasizes that the
exemption speaks in terms of “intra-agency memorandums and

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letters”; and to Georgia, because the communications it seeks
were shared between the government and aligned non-
government parties, the materials are not “intra-agency”
records. The result, in Georgia’s view, is that it can obtain the
opposing side’s privileged work product in the cases even if the
opposing side cannot obtain Georgia’s.
We disagree that FOIA requires that anomalous result.
Several of our precedents establish—and the Supreme Court
has assumed—that agency records can qualify as “intra-
agency” materials under Exemption 5 in certain conditions
even if exchanged with outsiders. In that situation, the
outsiders are treated as coming within the hem of the agency
for the purpose of insulating their shared communications from
disclosure pursuant to Exemption 5.
That understanding makes particular sense in the context
of work-product materials shared among aligned parties under
a common-interest agreement grounded in a mutual
expectation of confidentiality. An animating purpose of
Exemption 5 is to prevent parties opposed to the government
in litigation from using FOIA as a workaround to obtain
privileged materials they could not access in the lawsuit. Those
concerns are pronounced when the sought-after records would
disclose the government’s strategy and impressions about an
ongoing case, resulting in precisely the kind of unbalanced
playing field for the government that Exemption 5 aims to
forestall.
We hold that when the government exchanges attorney
work product with aligned parties under a common-interest
agreement rooted in shared interests and a need for
confidentiality, the shared work product qualifies as “intra-
agency” material under Exemption 5. Our conclusion accords
with the only other court of appeals’ decision to consider the

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issue. See Hunton & Williams v. U.S. Dep’t of Just., 590 F.3d
272 (4th Cir. 2010). Because the district court here reached the
opposite conclusion, we reverse its decision in principal part.
I.
A.
Shortly after the 2020 elections, Georgia enacted the
Election Integrity Act, known in the state as SB 202. See 2021
Ga. Laws Act 9. While Georgia touted SB 202 as a much-
needed update to election procedures, various organizations
thought otherwise. From their perspective, the legislation
targeted “every aspect of the voting process . . . to make
absentee, early, and election-day voting more difficult.”
Compl. ¶ 4, The New Ga. Project v. Raffensperger, No. 21-cv-
1229 (N.D. Ga. Mar. 25, 2021), Dkt. No. 1.
Seven organizations separately filed suit in the Northern
District of Georgia to challenge various provisions of SB 202.
See Georgia v. U.S. Dep’t of Just., 657 F. Supp. 3d 1, 6 n.1
(D.D.C. 2023). While each of the seven lawsuits seeks to
invalidate SB 202 as violating voters’ rights under federal law,
they raise varying claims. Five organizations raise claims of
race discrimination under Section 2 of the Voting Rights Act
(VRA) along with separate claims under the Constitution, the
Americans with Disabilities Act, and the Rehabilitation Act.
The remaining two suits raise non-race-based statutory and
constitutional claims.
Shortly after the private organizations filed their seven
suits, the United States Department of Justice (DOJ) initiated
its own challenge to SB 202 in the same court. See Compl.,
United States v. Georgia, No. 21-cv-2575 (N.D. Ga. June 25,
2021), Dkt. No. 1. DOJ brought a race-discrimination claim
under Section 2 of the VRA “to enforce the voting rights

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guaranteed by the Fourteenth and Fifteenth Amendments to the
United States Constitution.” Id. ¶ 3. DOJ’s suit, along with the
other seven challenges, were assigned to the same judge.
DOJ soon began communicating with the other plaintiffs
challenging SB 202 in the same court. The parties’ mutual
engagement is standard practice in complex civil litigation
when parties with aligned interests coordinate for efficiency
and simplicity—often with the court’s encouragement or at its
direction. See Manual for Complex Litigation (Fourth)
§§ 10.22–10.221 (2004).
On July 28, 2021, DOJ and six of the seven plaintiff
organizations—including all five organizations raising claims
of race discrimination—formalized their entry into a common-
interest agreement for sharing communications about the
litigation. The agreement stated that DOJ and the other
plaintiffs “share[d] a common interest in the successful
prosecution of this litigation” and provided that they “may
share (but are not required to share) privileged communications
and other litigation material between and among them without
waiving the attorney-client privilege, the work product
protection or any other privilege or protection.” J.A. 157.
Though seven parties (including DOJ) joined the agreement,
only the six parties litigating race-discrimination claims shared
information after the agreement’s memorialization. The shared
materials were prepared by attorneys and included “documents
discussing legal strategy, potential witnesses, types of
discovery needed, [and] division of labor in a case that would
likely be consolidated.” Decl. of John A. Russ, IV (Russ Decl.)
¶ 28 (J.A. 29).
The decision to form a common-interest agreement proved
prescient. The district court administratively consolidated the
six cases raising race-discrimination claims. See Order, In re

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Ga. Senate Bill 202, No. 21-mi-55555 (N.D. Ga. Dec. 23,
2021), Dkt. No. 1. The court explained that the cases involved
“virtually identical defendants and mostly the same facts and
legal issues,” including “race discrimination, undue burden on
the right to vote and abridgment of free speech, expression[,]
and association.” Id. at 5, 7. In accordance with the court’s
discovery orders, the consolidated plaintiffs (including DOJ)
submitted a joint discovery plan and coordinated on complying
with the court’s overall caps on the discovery—e.g., the
number of total depositions—they could collectively conduct.
B.
In August 2021, roughly one month after DOJ and other
organizations formalized their common-interest agreement for
sharing privileged communications, Georgia submitted a FOIA
request to DOJ. See State of Georgia FOIA Request (Aug. 31,
2021) (J.A. 14–19). The FOIA request ostensibly stemmed
from Georgia’s suspicion that DOJ was involved in
coordinating suits against SB 202 resting on allegedly false
claims of discrimination. Georgia’s FOIA request sought all
“DOJ communications with various non-governmental entities
that are involved in the legal challenges to [SB 202]” within a
date range beginning on November 3, 2020—before the
commencement of the litigation—and ending with the date of
the search. Id. at 2 (J.A. 15).
In December 2021, Georgia brought this suit in the district
court to enforce its FOIA request. See Compl., Georgia v. U.S.
Dep’t of Just., No. 21-cv-3138 (D.D.C. Dec. 1, 2021), Dkt. No.
1; see also 5 U.S.C. § 552(a)(4)(B) (granting jurisdiction in the
District of Columbia for FOIA suits). In response, DOJ
produced nearly one thousand pages of materials. DOJ also
withheld six documents and redacted portions of 52 others.
The withheld documents included communications from July

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to September 2021—all after DOJ joined the litigation—
exchanged between DOJ and other plaintiffs who were parties
to the common-interest agreement.
In support of its withholdings and redactions, DOJ relied
on FOIA’s Exemption 5, which shields from disclosure inter-
or intra-agency materials “that would not be available by law
to a party other than an agency in litigation with the agency.”
5 U.S.C. § 552(b)(5). DOJ explained that the “material
withheld in this case comprises attorney work-product
privileged materials exchanged within the Common Interest
Group.” Russ Decl. ¶ 28 (J.A. 29). Georgia countered that (a)
the withheld materials are not “intra-agency” records under
Exemption 5 because they had been exchanged with non-
government parties, and (b) DOJ had waived any claim to the
work-product privilege by sharing information with third
parties without adequately demonstrating a common interest.
The district court granted summary judgment in Georgia’s
favor on both grounds. The court first rejected DOJ’s argument
that the common-interest doctrine rendered materials
exchanged with non-government litigants “intra-agency”
records for purposes of Exemption 5. The court further
determined that the work-product privilege in any event had
been waived by the sharing of communications with other
parties.
II.
DOJ appeals both aspects of the district court’s ruling,
contending that (a) its communications with aligned non-
government parties under a common-interest agreement
qualify as “intra-agency” exchanges for purposes of Exemption
5, and (b) it did not waive the attorney work-product privilege
by sharing materials within the rubric of a common-interest
arrangement. We agree with DOJ on both scores. Reviewing

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the matter de novo, see Jud. Watch, Inc. v. Dep’t of Just., 432
F.3d 366, 369 (D.C. Cir. 2005), we hold that privileged
attorney work product exchanged with aligned parties under a
common-interest arrangement can be withheld from FOIA
disclosure pursuant to Exemption 5.
A.
Congress enacted FOIA “to pierce the veil of
administrative secrecy and to open agency action to the light of
public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352,
361 (1976) (internal quotation marks and citation omitted). At
the same time, Congress recognized that “public disclosure is
not always in the public interest,” Baldrige v. Shapiro, 455 U.S.
345, 352 (1982), and “it is necessary to protect certain equally
important rights of privacy with respect to certain information
in Government files,” S. Rep. No. 89-813, at 3 (1965).
Congress balanced those competing considerations by
excluding certain materials from FOIA’s disclosure mandate
pursuant to nine enumerated exemptions. See 5 U.S.C.
§ 552(b)(1)–(9). The FOIA exemption at the center of this case
is Exemption 5. Under that exemption, agencies need not
disclose “inter-agency or intra-agency memorandums or letters
that would not be available by law to a party . . . in litigation
with the agency.” Id. § 552(b)(5). The exemption
“incorporates the privileges available to Government agencies
in civil litigation,” U.S. Fish & Wildlife Serv. v. Sierra Club,
592 U.S. 261, 267 (2021), and “exempt[s] those documents
[that are] normally privileged in the civil discovery context,”
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).
While Exemption 5 encompasses the range of privileges
the government can assert in civil litigation, it is “clear that
Congress had the attorney’s work-product privilege
specifically in mind when it adopted Exemption 5.” Id. at 154.

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The work-product privilege “exist[s] to . . . promote the
adversary system by safeguarding the fruits of an attorney’s
trial preparations from the discovery attempts of the opponent.”
United States v. A.T.&T. Co., 642 F.2d 1285, 1299 (D.C. Cir.
1980) (emphasis omitted); see generally Hickman v. Taylor,
329 U.S. 495 (1947). Exemption 5 secures FOIA’s adherence
to that essential guarantee of fairness in the adversary system
in suits involving the government: the exemption enables the
government to litigate without fear that its opponent can gain
access to its attorney work product—and thereby nullify the
privilege—through the mechanism of a FOIA request. As a
general matter, “attorney work product . . . should not be any
more easily discoverable from the Government than from any
other party.” A.T.&T., 642 F.2d at 1301. Exemption 5
vindicates that principle in FOIA.
“FOIA expressly recognizes that important interests are
served by its exemptions and those exemptions are as much a
part of FOIA’s purposes and policies as the statute’s disclosure
requirement.” Food Mktg. Inst. v. Argus Leader Media, 588
U.S. 427, 439 (2019) (cleaned up). With Exemption 5 in
particular, the Supreme Court has underscored the exemption’s
integral role in preserving a balanced playing field in
government litigation.
The Court has explained that FOIA “is fundamentally
designed to inform the public about agency action and not to
benefit private litigants.” Sears, Roebuck & Co., 421 U.S. at
143 n.10 (emphasis added). The Court thus has “consistently
rejected . . . a construction of the FOIA” under which a party
“can obtain through the FOIA material that is normally
privileged.” United States v. Weber Aircraft Corp., 465 U.S.
792, 801 (1984). That kind of construction “would create an
anomaly in that the FOIA could be used to supplement civil
discovery.” Id. The Court does “not think that Congress could

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have intended that the weighty policies underlying discovery
privileges could be so easily circumvented” via the mere
submission of a FOIA request. Id. at 801–02. That
understanding substantially informs our resolution of this
appeal.
B.
Exemption 5 allows the government to withhold records
from disclosure if they satisfy two conditions. See Dep’t of
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1,
8 (2001). First, they must qualify as “inter-agency or intra-
agency memorandums or letters.” 5 U.S.C. § 552(b)(5).
Second, they must “not be available by law to a party . . . in
litigation with the agency,” id.—i.e., they “fall within the ambit
of a privilege against discovery,” Klamath, 532 U.S. at 8. The
two conditions have “independent vitality” in that they both
must be satisfied. Id. at 12. And while they can be taken up in
any order, we will consider them in the order they appear in the
exemption’s terms.
So, we initially examine whether the withheld materials in
this case qualify as “intra-agency memorandums or letters.”
Answering yes, we then assess whether they fall within the
attorney work-product privilege or whether, as Georgia claims,
DOJ waived the privilege by sharing the materials with other
parties. Finding no waiver, we conclude that Exemption 5
shields the withholdings from FOIA’s disclosure mandate.
1.
We first consider whether the withheld communications
qualify as “inter-agency or intra-agency memorandums or
letters” within the meaning of Exemption 5. 5 U.S.C. §
552(b)(5). There is no dispute that the materials amount to
“memorandums or letters,” and DOJ does not contend that they

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are “inter-agency” records. The sole issue then is whether the
withheld information qualifies as “intra-agency.”
a.
To answer that question, we must first understand the
precise nature of the withheld materials. Georgia’s FOIA
request “seek[s] DOJ communications with various non-
governmental entities that are involved in the legal challenges
to” the state’s election law, SB 202. State of Georgia Request
at 1 (J.A. 15). The withheld documents thus all involve
communications between DOJ and non-government parties.
Specifically, the withholdings were all exchanged among
parties to the common-interest agreement. In accordance with
that scope, DOJ confines its position on what counts as “intra-
agency” materials to information shared under a common-
interest agreement.
Common-interest agreements derive from the common-
interest doctrine. Under that doctrine, “[i]f two or more clients
with a common interest in a litigated or nonlitigated matter are
represented by separate lawyers and they agree to exchange
information concerning the matter,” the information remains
“privileged as against third persons.” Restatement (Third) of
the Law Governing Lawyers § 76(1) (A.L.I. 2000). The
rationale is to enable parties with aligned interests to prepare
their case and “coordinate their positions without destroying
the privileged status of their communications.” Id. § 76 cmt. b.
A common-interest agreement protects the privileged status of
shared communications as to both the attorney-client privilege
and (relevant here) the attorney work-product privilege. See
Minebea Co. v. Papst, 228 F.R.D. 13, 16 (D.D.C. 2005).
The “common interest doctrine,” in short, “permits parties
whose legal interests coincide to share privileged materials
with one another in order to more effectively prosecute or

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defend their claims.” Hunton & Williams, 590 F.3d at 277. So
when the government enters into a common-interest agreement
with aligned parties in litigation, the government concludes
that their interests have merged to an extent rendering it in the
public interest to coordinate their mutual efforts and do so
under a cone of confidentiality. The question here is whether
communications among the government and allied parties
within that rubric qualify as “intra-agency” exchanges under
Exemption 5.
b.
The sole court of appeals to have considered that question
answered it affirmatively. Hunton & Williams, 590 F.3d at
277–81. The Fourth Circuit there explained: “Because the
common interest doctrine requires the agency to determine that
the public interest and the litigation partner’s interest have
converged, communications between the agency and its partner
can be understood as ‘intra-agency’ for purposes of Exemption
5.” Id. at 280. Notably, in reaching that conclusion, the court
integrally relied on decisions from our court applying
Exemption 5 in related contexts. See id. at 279–80.
A long line of our court’s decisions establishes that “intra-
agency” for Exemption 5 purposes can encompass materials to
or from persons outside an agency’s employ. See Klamath, 532
U.S. at 9, 12–13 n.4 (discussing decisions); U.S. Dep’t of Just.
v. Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J., dissenting)
(same). As we recently observed, “our court and others have
long treated Exemption 5’s coverage of ‘intra-agency’ records
as extending beyond just [the] category” of materials “authored
by and exchanged between [an] agency’s employees.” Am.
Oversight v. U.S. Dep’t of Health & Hum. Servs., 101 F.4th
909, 914 (D.C. Cir. 2024).

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Our line of decisions began over 50 years ago with Soucie
v. David, 448 F.2d 1067 (D.C. Cir. 1971), where we recognized
what has come to be known as the consultant corollary. Soucie
established that a document created by an agency’s outside
private consultant can qualify as an “intra-agency” record
under Exemption 5. “That exemption,” we explained, “was
intended to encourage the free exchange of ideas during [an
agency’s] process of deliberation and policymaking.” Id. at
1077. We reasoned that “[t]he “government may have a special
need for the opinions and recommendations of temporary
consultants, and those individuals should be able to give their
judgments freely without fear of publicity.” Id. at 1078 n.44.
An outside report thus can “be treated as an intra-agency
memorandum of the [soliciting] agency,” in furtherance of
Exemption 5’s purposes. Id.
Since Soucie, we have continued applying the consultant
corollary to protect materials exchanged with non-agency
outsiders under Exemption 5. See, e.g., McKinley v. Bd. of
Governors of Fed. Resrv. Sys., 647 F.3d 331, 339 (D.C. Cir
2011); Nat’l Inst. of Mil. Just. (NIMJ) v. U.S. Dep’t of Def., 512
F.3d 677, 685 (D.C. Cir. 2008); Jud. Watch, Inc. v. Dep’t of
Energy, 412 F.3d 125, 130–31 (D.C. Cir. 2005); Ryan v. Dep’t
of Just., 617 F.2d 781, 789–91 (D.C. Cir. 1980). Those
decisions rest on “a common sense interpretation of ‘intra-
agency’ that encompasses the advice submitted by such
temporary consultants.” NIMJ, 512 F.3d at 685 (quoting Ryan,
617 F.2d at 790 (quotation marks removed)). “When
interpreted in light of its purpose,” we have determined, “the
language of Exemption 5 clearly embraces [the] situation” of
an agency’s “rely[ing] on the opinions and recommendations
of temporary consultants, as well as its own employees.” Id. at
680 (quoting Ryan, 617 F.2d at 789).

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The Supreme Court has assumed the correctness of those
decisions’ interpretation of “intra-agency,” albeit without
definitively deciding the matter. See Klamath, 532 U.S. at 9–
14 (citing Soucie, among other decisions). In doing so, the
Court described and quoted Justice Scalia’s support of the
decisions in his separate opinion (joined by two other Justices)
in Department of Justice v. Julian, 486 U.S. at 18 n.1 (Scalia,
J., dissenting). See Klamath, 532 U.S. at 9–10. (The majority
in Julian did not reach the issue. See Klamath, 532 U.S. at 10
n.2; Julian, 486 U.S. at 11 n.9.)
Justice Scalia allowed that “the most natural meaning of
the phrase ‘intra-agency memorandum’ is a memorandum that
is addressed both to and from employes of a single agency.”
Julian, 486 U.S. at 18 n.1 (Scalia, J., dissenting). But “[t]he
problem with this interpretation is that it excludes many
situations where Exemption 5’s purpose of protecting the
Government’s deliberative process is plainly applicable.” Id.
“Consequently, the Courts of Appeals have uniformly rejected
it,” he explained. Id. And “[i]t seem[ed] to [him] that these
decisions are supported by a permissible and desirable reading
of the statute”—one that is “textually possible and much more
in accord with the purpose of the provision.” Id.
Under Justice Scalia’s and our court’s understanding of
Exemption 5, “Congress . . . did not intend ‘inter-agency’ and
‘intra-agency’ to be rigidly exclusive terms.” Ryan, 617 F.2d
at 790; see Julian, 486 U.S. at 18 n.1 (Scalia, J., dissenting)
(discussing Ryan and supporting its reading of the statute);
Klamath, 532 U.S. at 12–13 n.4 (declining to decide whether
result in Ryan is correct). The same is true of the immediately
ensuing words in Section 5: “memorandums or letters.” 5
U.S.C. § 552(b)(5). While there is no dispute in this case that
the withheld materials qualify as “memorandums or letters,” it
bears noting that those terms have likewise been given a

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nonrigid construction in accommodation of Exemption 5’s
purposes.
The items held to fall within Exemption 5’s protection of
“memorandums or letters” thus include: agency draft opinions,
U.S. Fish & Wildlife Serv., 592 U.S. at 273; draft historical
manuscripts and reports, Nat’l Sec. Archive v. CIA, 752 F.3d
460, 465 (D.C. Cir. 2014); interview notes, Williams &
Connolly v. SEC, 662 F.3d 1240, 1245 (D.C. Cir. 2011);
agency notebooks, Am. Fed’n of Gov’t Emps. v. U.S. Dep’t of
Com., 907 F.2d 203, 207–08 (D.C. Cir. 1990); cost estimates,
Quarles v. Dep’t of the Navy, 893 F.2d 390, 391–92 (D.C. Cir
1990); and calendar entries, Prop. of the People, Inc. v. Off. of
Mgmt. & Budget, 394 F. Supp. 3d 39, 48–49 (D.D.C. 2019).
Those decisions recognize that effective government
deliberation can take place through a range of documentary
formats beyond traditional “memorandums or letters.” 5
U.S.C. § 552(b)(5). Allowing FOIA to reach materials such as
draft pleadings, computer data, or handwritten notes would
drain Exemption 5 of its protective purpose. See Hunton &
Williams, 590 F.3d at 280–81.
c.
In accordance with our previous decisions, we refrain from
giving “intra-agency” in Exemption 5 an unduly rigid reading
and instead construe it in a common-sense way that accords
with the exemption’s purposes. See NIMJ, 512 F.2d at 680,
685; Soucie, 448 F.2d at 1078 n.44; see also Julian, 486 U.S.
at 18 n.1 (Scalia, J., dissenting). Applying that approach, we
conclude that the government’s attorney work product shared
with aligned parties in litigation under a common-interest
agreement qualifies as “intra-agency” material. That
understanding is “textually possible,” and it is “much more in

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accord with the purpose of the provision.” Julian, 486 U.S. at
18 n.1 (Scalia, J., dissenting).
As for the text, our consultant corollary decisions hold that
non-agency outsiders can be sufficiently aligned and involved
with an agency in certain conditions that their exchanges with
the agency are treated as “intra-agency” under Exemption 5.
See Part II.B.1.b, supra. Considered against that backdrop,
“intra-agency” likewise embraces the circumstances of this
case: communications among an agency and its allied
litigating partners under a common-interest agreement aimed
to preserve the privileged status of their exchanges. After all,
the “Government has the same entitlement as any other party
to assistance from those sharing common interests.” A.T.&T.,
642 F.2d at 1300. And by entering into a common-interest
arrangement with aligned parties in litigation, the government
decides it is in the public interest to carry out their mutual
engagement in the undertaking under a common umbrella of
confidentiality recognized by the law. In that situation, the
other parties to the agreement can be treated as coming into the
agency’s fold for purposes of coordinating strategy and
litigating the case and sharing confidential information to that
end. See Hunton & Williams, 590 F.3d at 280 (“By cooperating
with the agency in pursuit of the agency’s own litigation aims,
the litigation partner in a limited sense becomes a part of the
enterprise that the agency is carrying out.”).
That understanding of “intra-agency” holds particular
sway when considered in light of Exemption 5’s purposes, as
our decisions have consistently done. The central salient
purpose of Exemption 5 in this case is the one elaborated
earlier: preventing parties in litigation from using FOIA as a
collateral means of accessing materials the law excludes from
discovery in the lawsuit. See Part II.A, supra. As the Supreme
Court has long made clear, FOIA is not intended to afford a

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substitute way to obtain “normally privileged” agency records,
uniquely disadvantaging the government’s side in litigation.
Weber Aircraft, 465 U.S. at 801. To that end, “Exemption 5
expresses Congress’s view that the public interest is not served
by stripping government agencies of the privileges otherwise
available to them in litigation.” Hunton & Williams, 590 F.3d
at 277.
Reading “intra-agency” to exclude the withheld materials
in this case, though, would do exactly that. When a
government agency is a party in litigation, Exemption 5
generally prevents the opposing side from using FOIA to
obtain the agency’s privileged attorney work product. That is
a core object of the provision. But if “intra-agency” is rigidly
understood to exclude sharing of materials outside the strict
confines of an agency’s employees, FOIA would instantly
become a gateway to accessing the government’s attorney
work product whenever it is exchanged with aligned parties on
the same side of multiparty litigation.
It would not matter if the attorney work-product privilege
protects the shared materials from discovery in the litigation—
which, as we later explain, would normally be the case. See
Part II.B.2, infra. It also would not matter if the shared records
involve an especially sensitive type of attorney work product—
e.g., a document laying out the government’s legal strategy and
detailing its vulnerabilities. Nor would it matter if the materials
are exchanged under a common-interest agreement, the entire
purpose of which is to preserve the documents’ privileged
status. It would not even matter if the parties on the
government’s side are ordered by the court to coordinate their
work and consolidate their submissions. Regardless of any of
that, FOIA would afford a ready means for the opposing side
to obtain any and all attorney work product shared on the
government’s side.

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We do not believe Congress intended the term “intra-
agency” in Exemption 5 to produce that striking result. And
the implications would be far-reaching. In an array of
situations, the government coordinates with non-agency parties
to advance the public interest. For instance, an agency often
litigates multi-party disputes alongside a range of parties on the
same side. See generally, e.g., West Virginia v. Env’t Prot.
Agency, 597 U.S. 697 (2022). The federal government also
frequently submits amicus briefs and participates in oral
argument in support of other parties. See generally, e.g.,
Moody v. NetChoice, LLC, 603 U.S. 707 (2024); DeVillier v.
Texas, 601 U.S. 285 (2024). In other instances, DOJ may
represent nonagency personnel, such as members of Congress
or judges or other judicial officers. See generally, e.g.,
Martinez v. United States, 838 F. App’x 662 (3d Cir. 2020);
Hodge v. Talkin, 799 F.3d 1145 (D.C. Cir. 2015). And in qui
tam lawsuits, there is extensive coordination between the
government and private relators. See, e.g., United States ex rel.
Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 425–26
(2023).
In all those situations and others, the government naturally
communicates with allied parties in litigation on matters
essential to effective advocacy and central to the work-product
privilege—e.g., developing legal arguments, coordinating
strategy, apportioning workstreams, drafting submissions, and
preparing for court appearances. Throughout, there is an
essential need to “maintain[] the confidentiality of attorney-
client communications in order to promote the rendering of
legal services.” In re Sealed Case, 107 F.3d 46, 49 (D.C. Cir.
1997). Beyond that, the protection of attorney work product is
indispensable to the integrity and fairness of the adversarial
process as a whole. See Hickman, 329 U.S. at 511; United
States v. Deloitte LLP, 610 F.3d 129, 139–40 (D.C. Cir. 2010);
A.T.&T., 642 F.2d at 1299.

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In a host of circumstances, moreover, a court will leave the
government with no choice but to coordinate with aligned
parties. In the consolidated cases at issue here, for instance, the
court hearing the cases imposed collective discovery caps on
DOJ and the other consolidated plaintiffs—i.e., overall limits
on the number of depositions and interrogatories—necessarily
requiring the parties to work closely together. And in
comparable cases, “the United States routinely is required by
district court judges to file coordinated briefs, written
discovery, and other legal documents with other aligned
parties,” including “joint filings (such as briefs, findings of fact
and conclusions of law, etc.) reflecting the views of multiple
plaintiffs including the United States.” Russ Decl. ¶¶ 34–35
(J.A. 31–32).
To be sure, the government could try to engineer its
coordination with aligned parties so as to refrain from
exchanges that would subject its attorney work product to
disclosure under FOIA. Georgia suggested in oral argument,
for instance, that DOJ could confine its communications with
its common-interest partners to oral conversations by phone or
videoconference, without any sharing of written materials that
might constitute FOIA records. See Oral Argument at 39:37–
42:32. The parties then would presumably coordinate their
joint efforts in the consolidated challenges without ever sharing
a document via email or any medium.
It is hard to imagine effective—let alone efficient—
coordination under those kinds of manufactured constraints.
And at any rate, a central purpose of Exemption 5 is to avoid
subjecting the government to asymmetric disadvantages in the
conduct of litigation, which those sorts of doctored restrictions
would surely do. Ultimately, Georgia’s suggestion amounts to
saying that DOJ could avoid the need to disclose privileged
communications under FOIA if it would just forgo

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communications implicating FOIA. Yet the entire object of
Exemption 5 is to protect the government’s privileged
communications, not discourage them.
For all those reasons, we conclude that communications
among the government and aligned parties in litigation under a
common-interest agreement qualify as “intra-agency”
exchanges for purposes of Exemption 5.
d.
In resisting that conclusion, Georgia contends that it
conflicts with our court’s consultant-corollary decisions.
Those decisions, as explained, establish that “intra-agency”
under Exemption 5 can range beyond the strict confines of an
agency’s employ. In that important respect, the consultant-
corollary decisions substantially inform our conclusion that the
communications in this case likewise qualify as “intra-agency,”
as we have set out. But those decisions’ understanding of the
exact conditions in which an outside consultant’s
communications count as “intra-agency” records does not
reflexively control in the distinct context of this case.
This is not a consultant-corollary case: it does not involve
an outside consultant giving advice to an agency as part of the
deliberative process leading to an agency decision. The
consultant corollary arose in and is tied to that setting. “We
first endorsed the corollary in Soucie . . . to account for the
reality that agencies often rely on outside experts for advice in
their deliberative processes.” Am. Oversight, 101 F.4th at 914.
And we recently held that “[t]he consultant corollary is limited
to situations where the outside entity . . . does not ‘represent an
interest of its own, or the interest of any other client, when it
advises the agency.’” Id. at 916 (quoting Klamath, 532 U.S. at
11). We considered the consultant’s absence of a stake in the
outcome of the agency’s deliberative process to be “the

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hallmark of a consultative relationship,” id. at 920, and to put
the consultant in a comparable position to an agency employee
in that context for purposes of Exemption 5’s “intra-agency”
requirement, id. at 918.
This case, however, does not involve a “consultative
relationship,” and DOJ does not attempt to fit within the
consultant corollary. So the question here is not whether an
outside expert’s advice to an agency as part of the agency’s
own deliberative process is protected by Exemption 5. See id.
at 916 (“The key is that the consultant must not have a stake in
the outcome of the agency’s process . . . ” (emphasis added)).
This case instead involves an agency exchanging privileged
attorney work product with aligned outside parties in litigation
under a common-interest agreement.
To elaborate, the consultant corollary centrally concerns
an agency’s internal deliberative process and privileges that are
exclusive to the government in connection with its decisional
process. See id. at 914 (deliberative-process privilege); Soucie,
477 F.2d at 1071–72 (executive privilege); cf. Coastal States
Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir.
1980) (noting that “deliberative process privilege” is “unique
to the government”). Here, by contrast DOJ had completed its
internal process of deciding whether to bring a challenge to SB
202 and had filed its suit; and the agency seeks to preserve the
confidentiality of its attorney work product in the latter external
process (litigation) under a privilege generally available to all
sides and parties in that process (the attorney work-product
privilege). In accordance with those distinctions, what is
centrally at stake in the consultant-corollary cases is the
government’s ability to obtain advice to inform its own
decisional process. E.g., Soucie, 448 F.2d at 1077, 1078 n.44.
What is centrally at stake here is different: the fairness and
integrity of the adversary system writ large, and whether the

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government must disclose its own side’s privileged work
product about litigation strategy when the opposing side need
not.
We acknowledge in this regard that the Supreme Court’s
decision in Klamath, while primarily addressed to the
deliberative-process privilege, noted that the government there
also asserted the attorney work-product privilege. See
Klamath, 532 U.S. at 6–8. But apart from those brief mentions,
the decision’s analysis focused entirely on the deliberative-
process privilege. That is unsurprising given that the decision
concerned the suitability of the government’s reliance there
(unlike here) on the consultant corollary, in connection with the
agency’s own decisional process. See id. at 8–16. Klamath
thus had no occasion to treat with the prospect of the
government’s having to turn over its attorney work product to
the opposing side in litigation—much less with the
implications of a common-interest agreement in that setting or
whether the sharing of information under such an agreement
qualifies as an “intra-agency” communication protected by
Exemption 5. See Hunton & Williams, 590 F.3d at 279
(distinguishing Klamath).
We confront that issue here. In this context, unlike with
the consultant corollary, an agency’s aligned partners
inherently come to the joint enterprise with their own interests
as parties in litigation. Still, when the government joins hands
with them in a common-interest arrangement securing the
confidential sharing of privileged information in furtherance of
the mutual undertaking, they are appropriately treated as
coming within the fold of the agency for that limited purpose
under Exemption 5. FOIA otherwise would severely undercut
the government’s attorney work-product privilege, even
though Congress enacted Exemption 5 with that privilege
specifically in mind. “We do not think that Congress could

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have intended that the weighty policies underlying discovery
privileges could be so easily circumvented” via a FOIA
request. Weber Aircraft, 465 U.S. at 801–02.
That conclusion fully squares with the requirement to give
Exemption 5’s “intra-party” condition “independent vitality.”
Klamath, 532 U.S. at 12. We cannot treat that statutory
language as “a purely conclusory term, just a label to be placed
on any document the Government would find it valuable to
keep confidential.” Id. Our approach does not do so. We do
not consider the “intra-party” requirement satisfied merely
because the materials fall within a privilege of value to the
government. Rather, we conclude that, in the situation of a
common-interest agreement, the circumstances satisfy the
“intra-agency” condition because the outside parties to the
agreement are sufficiently aligned and involved in the agency’s
enterprise. To be sure, the common-interest agreement can
also bear on the remaining condition under Exemption 5:
whether the attorney work-product privilege applies in the
specific circumstances, a subject we turn to below. But so long
as we give the “intra-agency” requirement independent
content, which we do, nothing in Klamath bars—or purports to
bar—the same information from potentially bearing on both
conditions.
e.
Having determined that an agency’s sharing of
information with aligned parties pursuant to a common-interest
agreement qualifies as an “intra-agency” exchange, we now
assess whether the withheld communications in this case fit in
that category. Georgia argues that the withheld materials do
not qualify as “intra-agency” records even if communications
under a common-interest agreement generally do. According
to Georgia, the parties do not share sufficiently common

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interests to implicate the common-interest doctrine. We
disagree. The government bears the burden to show that the
common-interest doctrine applies, see Hunton & Williams, 590
F.3d at 284, and the government has carried its burden.
Aside from two initial emails, the withheld
communications all post-date the parties’ memorialization of
their common-interest agreement. We disregard DOJ’s
challenge as to the two initial emails: DOJ confines that
challenge to a three-sentence footnote in its brief, DOJ Opening
Br. 29 n.7, and we “need not consider cursory arguments made
only in a footnote.” Hutchins v. D.C., 188 F.3d 531, 539 n.3
(D.C. Cir. 1999). What remains, then, is a set of
communications that all plainly took place after the parties had
entered into their common-interest agreement. A “common
interest agreement can be inferred where two parties are clearly
collaborating in advance of litigation,” regardless of whether
there is any written instrument. Hunton & Williams, 590 F.3d
at 284. But here, there is no ambiguity about the existence of
a common-interest arrangement because all the
communications in issue came after the parties had formalized
their agreement.
That set of communications was shared solely among the
six parties (including DOJ) whose cases had been consolidated.
And all of those parties challenged SB 202 on grounds of race
discrimination. To be sure, some of those race-discrimination
claims were brought under the Voting Rights Act and others
under the Constitution, and some may focus on discriminatory
intent while others allege discriminatory effect. But those sorts
of modest variations do not stand in the way of recognizing that
the parties’ commonality of interests is more than enough for
purposes of the common-interest doctrine.

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Common interests “may be either legal, factual, or
strategic in character,” and “[t]he interests of the separately
represented clients need not be entirely congruent.”
Restatement (Third) of the Law Governing Lawyers § 76 cmt.
e. Here, accordingly, the district court consolidated the six
cases involving race-discrimination claims because of the
overlapping nature of the challenges, and the court imposed
collective discovery limits on the premise that the plaintiffs
could coordinate their work and jointly conduct discovery
across their consolidated matters. In United States v. A.T.&T.,
we found an adequate commonality of interests between the
government and a private plaintiff who had brought similar
antitrust claims against A.T.&T. in two separate forums. See
642 F.2d at 1299–300. We explained that the parties were
“proceeding on overlapping . . . issues against a common
adversary,” and that they “shared common interests in
developing legal theories and analyses of documents on which
to proceed on those issues where they both made the same . . .
claims.” Id. at 1300. The same is true in the consolidated cases
here.
2.
We have concluded that the withheld communications in
this case qualify as “intra-agency” materials within the
meaning of Exemption 5. We now address whether they also
satisfy the exemption’s second condition: that they “would not
be available by law to a party . . . in litigation with the agency,”
5 U.S.C. § 552(b)(5)—here, due to the attorney work-product
privilege.
DOJ explains that the withheld materials in this case are
classic attorney work product. See Hickman, 329 U.S. at 511.
The “records include documents discussing legal strategy,
potential witnesses, types of discovery needed, division of

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labor in a case that would likely be [and later was]
consolidated, and the efficient presentation of the case.” Russ
Decl. ¶ 28 (J.A. 29). And the “emails and other documents at
issue were prepared by attorneys for the United States or
attorneys for the Common Interest Group and include those
attorneys’ mental impressions, conclusions, opinions, and legal
theories concerning positions that might be taken in the
litigation.” Id. (J.A. 29–30).
Georgia does not dispute that those kinds of materials fall
squarely within the attorney work-product privilege. Georgia’s
argument instead is that DOJ waived the privilege by sharing
the documents with aligned litigation partners. That is
incorrect.
“[W]hile the mere showing of a voluntary disclosure to a
third person will generally suffice to show waiver of the
attorney-client privilege, it should not suffice in itself for
waiver of the work product privilege.” A.T.&T., 642 F.2d at
1299 (emphasis omitted); see Deloitte LLP, 610 F.3d at 139.
Even as to the attorney-client privilege, in fact, there is no
waiver if the disclosure occurs under the rubric of a common-
interest arrangement. See Restatement (Third) of the Law
Governing Lawyers § 76. Here, accordingly, even if the case
involved the attorney-client privilege rather than the attorney
work-product privilege, disclosure of privileged matter to other
parties pursuant to the common-interest agreement would not
constitute a waiver.
The absence of any waiver is all the more clear with the
attorney work-product privilege. With that privilege,
“disclosing work product to a third party can waive protection
if such disclosure, under the circumstances, is inconsistent with
the maintenance of secrecy from the disclosing party’s
adversary.” Deloitte, 610 F.3d at 140 (internal quotation marks

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omitted). In other words, “voluntary disclosure of attorney
work product to an adversary or a conduit to an adversary
waives work-product protection.” Id.; see A.T.&T., 642 F.2d
at 1299.
The disclosure of attorney work product in this case was
not “to an adversary or a conduit to an adversary” and was not
“inconsistent with the maintenance of secrecy from the
disclosing party’s adversary.” Deloitte, 610 F.3d at 140
(internal quotation marks omitted). To the contrary, the work
product was shared with aligned parties pursuant to a common-
interest agreement. And where there are “common interests on
a particular issue against a common adversary, the transferee is
not at all likely to disclose the work product material to the
adversary.” A.T.&T., 642 F.2d at 1299. That is particularly so
when the parties enter into a common-interest agreement, the
entire purpose of which is to assure that they can exchange
privileged matter without waiving the privilege. There was no
waiver here.
* * * * *
For the foregoing reasons, we affirm the district court’s
grant of summary judgment to Georgia with respect to the two
emails predating memorialization of the common-interest
agreement, but we otherwise reverse the district court’s grant
of summary judgment.
So ordered.

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