American Oversight v. U.S. Dep’t of Just.

21-1266
American Oversight v. U.S. Dep’t of Just.
In the
United States Court of Appeals
for the Second Circuit
A UGUST TERM 2021
No. 21-1266-cv
A MERICAN O VERSIGHT,
Plaintiff-Appellant,
v.
U NITED S TATES D EPARTMENT OF JUSTICE , F EDERAL BUREAU OF
INVESTIGATION,
Defendants-Appellees.
__________
On Appeal from the United States District Court
for the Southern District of New York
__________
ARGUED: MAY 18, 2022
DECIDED: A UGUST 16, 2022
__________
Before: R AGGI, WESLEY , and C ARNEY , Circuit Judges.
________________
In this Freedom of Information Act (“FOIA”) lawsuit filed in
the Southern District of New York (Schofield, J.), plaintiff seeks to
compel defendants to produce notes and memoranda memorializing
interviews conducted by federal prosecutors and law enforcement

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agents in the course of a criminal investigation. Plaintiff now appeals
an award of summary judgment in favor of defendants, arguing that
the district court erred in holding that the requested documents are
“attorney work product” shielded from production by FOIA
Exemption 5. It maintains that, at least as to interviewed “targets”
and “subjects” of the investigation, defendants waived attorney-
work-product protection for the requested documents by having
already disclosed any protected information contained therein to
potential litigation adversaries during their interviews. This
misperceives both the work-product privilege and what constitutes
waiver by disclosure in the circumstances of this case.
AFFIRMED.
K ATHERINE M. A NTHONY (John E. Bies,
Emma Lewis, Sarah Colombo, on the brief),
American Oversight, Washington, DC, for
Plaintiff-Appellant.
SARAH S. NORMAND, Assistant United States
Attorney (Christopher Connolly, Assistant
United States Attorney, on the brief), for
Damian Williams, United States Attorney
for the Southern District of New York, New
York, NY, for Defendants-Appellees.
R EENA R AGGI, Circuit Judge:
Plaintiff American Oversight brought this Freedom of
Information Act (“FOIA”) suit in the United States District Court for

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the Southern District of New York (Lorna G. Schofield, Judge) to
compel defendants, the United States Department of Justice (“DOJ”)
and the Federal Bureau of Investigation (“FBI”), to disclose notes and
memoranda memorializing interviews conducted by federal
prosecutors and law enforcement agents in the course of a criminal
investigation into possible campaign-finance-law violations, and
subsequent obstruction of justice, by persons associated with the
Donald J. Trump 2016 presidential campaign (the “Investigation”).1
On the parties’ cross-motions for summary judgment, the district
court ruled in favor of defendants, holding that the documents at
issue were attorney work product, shielded from production by FOIA
Exemption 5. See American Oversight v. DOJ, No. 19-CV-8215, 2021
WL 964220 (S.D.N.Y. Mar. 15, 2021).
In appealing that judgment, American Oversight now narrows
its production demand. It no longer seeks production of all interview
notes and memoranda generated during the Investigation. Rather, it
seeks such documents only for interviews with “targets” or “subjects”
of the Investigation.2 It argues that because such persons were
potential litigation adversaries of defendants at the time of the
interviews, defendants necessarily waived any work-product
1 Because the obstruction investigation appears to have grown out of the campaign-
finance-law investigation, we refer to them as one in this opinion.
2 As American Oversight acknowledges, “targets” and “subjects” are terms of art in the
context of DOJ investigations, with (1) “target” defined as “a person as to whom the
prosecutor or the grand jury has substantial evidence linking him or her to the commission
of a crime and who, in the judgment of the prosecutor, is a putative defendant”; and (2)
“subject” defined as “a person whose conduct is within the scope of the grand jury’s
investigation.” DOJ, Justice Manual § 9-11.151 (2020). Because we understand the parties
to use “target” and “subject” as so defined, we do likewise in this opinion, unless otherwise
noted.

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protection for the requested documents by disclosing information
that would be memorialized therein to these adversaries during their
interviews. The argument misperceives the work-product privilege
and what would constitute its waiver by disclosure to a litigation
adversary in the circumstances of this case.
For the reasons explained in this opinion, we conclude that (1)
defendants have shown that the documents at issue are work product
protected from disclosure by FOIA Exemption 5, and (2) American
Oversight has failed to demonstrate defendants’ waiver of work-
product protection. Accordingly, we affirm the challenged judgment
in favor of defendants.
BACKGROUND
The background facts pertinent to this appeal derive largely
from the sworn declarations of government officials in support of
defendants’ motion for summary judgment and from matters of
which we may take judicial notice. The declarations are those of
(1) Thomas McKay, an Assistant United States Attorney (“AUSA”) in
the Southern District of New York (“SDNY”); (2) Ebony Griffin, a
FOIA Attorney-Advisor with DOJ’s Executive Office for United States
Attorneys; and (3) Michael Seidel, Acting Section Chief of the FBI
Record/Information Dissemination Section, Information
Management Division. In FOIA cases, courts accord such
declarations “a presumption of good faith,” Carney v. DOJ, 19 F.3d
807, 812 (2d Cir. 1994) (internal quotation marks omitted), such that,
at least as to unchallenged facts asserted therein, the declarations can
be relied on to support an award of summary judgment, see Grand
Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999) (stating that

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summary judgment may be granted to government on basis of its
own affidavits if they are sufficiently detailed and “not called into
question by contradictory evidence in the record or by evidence of
agency bad faith” (internal quotation marks omitted)).
I. The Investigation
Between 2018 and 2019, DOJ prosecutors in the SDNY, working
in conjunction with agents of the FBI, conducted the Investigation
here at issue. A single prosecution resulted, that of Trump
Organization attorney Michael Cohen. On August 21, 2018, Cohen
pleaded guilty to an eight-count information charging him with
violations of campaign-finance, tax, and financial-fraud laws insofar
as he (1) paid money to two women in amounts exceeding individual
campaign contribution limits;3 (2) issued those payments from a
corporation in violation of the prohibition on corporate campaign
contributions; and, unrelatedly, (3) evaded personal income tax
liability; and (4) made false statements to a bank to secure a loan.
Prior to this FOIA action, defendants had never publicly identified
any persons—other than Cohen—interviewed in the course of the
3 The alleged campaign contributions were payments of more than $100,000 each to
purchase the rights to two women’s stories of claimed affairs with Donald Trump, which
payments were intended to prevent such stories from influencing the 2016 presidential
election. See Gov’t Sentencing Mem., United States v. Cohen, No. 1:18-CR-602, ECF No. 27,
at 11–14 (S.D.N.Y. Dec. 7, 2018).

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Investigation, much less identified any such persons as “targets” or
“subjects.”4
II. The FOIA Request
American Oversight describes itself as a “nonpartisan,
nonprofit watchdog that uses public records requests backed by
litigation to fight corruption, drive accountability, and defend
democracy.”5 On July 22, 2019, it filed with both DOJ and the FBI the
FOIA request here at issue. Therein, American Oversight sought
production of the following materials:
1. All FBI form 302s reflecting the content of
all interviews conducted as a part of the
government’s investigation of potential
campaign finance violations committed by
President Trump, the Trump Organization,
Michael Cohen, or others representing
President Trump or the Trump
Organization, as well as any other
investigation of other potential violations
related to that investigation (including, for
example, obstruction of justice). . . .
4 Defendants advise that certain persons—Cohen, Keith Davidson, and John Gauger—
themselves publicly acknowledged being interviewed. See infra at 9. Press reports also
identified—although defendants never confirmed—that persons interviewed in
connection with the Investigation included former White House Communications Director
Hope Hicks and former Director of Oval Office Operations Keith Schiller. See N. Hong, R.
Ballhaus, & R. Davis O’Brien, Hush-Money Probe Gathered Evidence from Trump’s Inner Circle,
Wall St. J. (Apr. 10, 2019), https://www.wsj.com/articles/hush-money-probe-gathered-
evidence-from-trumps-inner-circle-11554897911.
5 See About, American Oversight, http://www.americanoversight.org/about (last visited
Aug. 15, 2022).

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2. All other records intended to summarize,
memorialize, or record witness interviews
or witness statements collected or used in
the investigation(s) described in Item 1,
including written proffers, written
summaries of oral proffers, transcripts or
recordings of any witness interviews or
statements, and any other record
summarizing, memorializing, or
reproducing the content of witness
interviews or statements collected or used in
connection with the above-described
investigation.
J. App’x at 18–19. American Oversight requested such materials for
the period from September 1, 2016, through the date of search and
asked that they be produced “at least within twenty business days.”
Id. It submitted that expedited production was warranted by
“widespread and exceptional media interest” in the Investigation and
“possible questions concerning the government’s integrity” in
conducting it, particularly “public concerns that DOJ has not pursued
criminal charges against [then-President Trump] because of his
position of power rather than the absence of evidence of his guilt.” Id.
at 21–22.
III. The FOIA Action
A. The Complaint
On September 4, 2019, after defendants still had not produced
the requested materials, American Oversight commenced this
lawsuit, charging defendants with violating the FOIA and requesting
an order that, among other things, would direct defendants (1) to

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conduct the necessary searches expeditiously, and (2) to produce “any
and all non-exempt records responsive to American Oversight’s
FOIA request and indexes justifying the withholding of any
responsive records withheld under claim of exemption.” Id. at 16. In
their October answer, defendants stated that they “had not completed
processing of the FOIA request,” id. at 29, and asserted as a defense
that “[s]ome or all of the requested records and information are
exempt from disclosure, in whole or in part,” id. at 31.
B. The Withheld or Redacted Documents
The parties subsequently conferred, whereupon, on February
7, 2020, DOJ—acting on behalf of both defendants—identified 30
responsive documents, five of which it produced in part and 25 of
which it withheld in full. On June 19, 2020, DOJ produced redacted
versions of two previously withheld documents. To justify its
withholdings and redactions, DOJ invoked FOIA Exemptions 3, 5, 6,
7(A), 7(C), and 7(E). See 5 U.S.C. § 552(b). American Oversight agreed
not to challenge these exemptions as to three of the 30 identified
documents, leaving 27 at issue.
AUSA McKay described the 27 disputed documents as
interview records, of which 21 are Form FD-302s (“302s”) produced
by FBI special agents;6 three are interview memoranda prepared by
SDNY special agents; and three are handwritten notes, two prepared
6 An FBI guide referenced by the parties indicates that agents use 302s to memorialize
interviews “[w]hen it is anticipated that the results of an interview may become the subject
of court testimony.” See FBI, Domestic Investigations and Operations Guide § 18-33 (Mar. 3,
2016). The guide further states that 302s “must contain a record of statements made by the
interviewee and not contain the interviewer’s opinion or contextual comments.” Id.

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by prosecutors and one by an FBI special agent. McKay Decl. ¶ 11.
McKay further stated that for “22 of the 27” memorialized interviews,
“prosecutors conducted the questioning.” Id. ¶ 14. The other five
interviews were conducted by agents (with a prosecutor participating
in one such interview by telephone), but only after discussions with
prosecutors as to “the topics to be covered and certain questions to be
asked.” Id.
In terms of substantive information, the redacted documents
disclose the identity of three interviewees—Michael Cohen, Keith
Davidson, and John Gauger—who had already publicly
acknowledged being interviewed. The documents further reveal that
Cohen and Davidson were interviewed pursuant to “proffer
agreements.”7 Redactions otherwise delete from the documents the
contents of these persons’ interviews, except for the following
previously published statement by Cohen:
COHEN did not want the payments to
“come out,” and COHEN felt that, after the
search of his premises, he was “an open
book[.]” COHEN felt that his false
statements to the House of Representatives
and the Senate were “a big concern.”
J. App’x at 158.8
7 Such agreements frequently afford an interviewee use immunity for statements made
during the interview. See, e.g., United States v. Blau, 159 F.3d 68, 71 (2d Cir. 1998); United
States v. Cruz, 156 F.3d 366, 368 (2d Cir. 1998).
8 Defendants advise that the statement was published in Special Counsel Robert Mueller’s
2019 “Report on the Investigation into Russian Interference in the 2016 Presidential
Election.”

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C. Summary Judgment Motions
The parties cross-moved for summary judgment. In support of
their motion, defendants argued, inter alia, that the 27 interview
records at issue were attorney work product, shielded from
production by FOIA Exemption 5.9 To support their claim,
defendants primarily relied on AUSA McKay’s declaration, which
states in relevant part that the withheld interview records “were
prepared in anticipation of litigation.” McKay Decl. ¶ 13.
Specifically, prosecutors and/or Special
Agents acting at the substantial direction of
prosecutors conducted these interviews in
connection with the prosecutors’ evaluation
of whether criminal prosecutions were
warranted. The interviews were recorded
[i.e., memorialized in writing] to gather and
assess the extent to which evidence could be
obtained to support criminal charges and
that could be presented to a grand jury or at
trial. The prosecutors anticipated the
9 We focus here on Exemption 5 because it was the basis for the district court’s judgment.
Defendants also invoked FOIA Exemptions 6 and 7(C), which shield certain records, “the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”
5 U.S.C. § 552(b)(6), (b)(7)(C). They did not rely on FOIA Exemptions 3, 7(A), or 7(E)
despite invoking them earlier. Exemption 7(A), which pertains to any law enforcement
record—not just work product—the disclosure of which “could reasonably be expected to
interfere with enforcement proceedings,” id. § 552(b)(7)(A), might well have shielded the
disputed documents during the life of the Investigation. See Grand Cent. P’ship, Inc. v.
Cuomo, 166 F.3d at 485 n.5 (“[Exemption 7(A)] is not applicable in the absence of some
evidence that ‘enforcement proceedings’ are actually being conducted.”); see also Citizens
for Resp. & Ethics in Washington v. DOJ, 746 F.3d 1082, 1097 (D.C. Cir. 2014) (holding that
Exemption 7(A) does not apply after investigation concludes). But with the Investigation
now seemingly concluded, defendants rely on Exemption 5, which shields work product
even “after termination of the litigation for which the documents were prepared.” FTC v.
Grolier Inc., 462 U.S. 19, 25–27 (1983).

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potential for criminal charges during the
investigation and at the time the witness
interviews leading to the creation of
interview records were conducted. The
records were generated because of the
prospect of litigation.
Id.
McKay further states that “[d]isclosure of the interview records
would reveal the prosecutors’ selection of witnesses to interview, as
well as their mental impressions, legal theories, case analysis, and
strategic decisions.” Id. ¶ 14. He maintains that “[d]isclosure of the
questions asked by prosecutors would reveal the topics discussed
(and not discussed) with each witness, the focus and emphasis of the
prosecutors, and their thinking about the substance of the case.” Id.
D. The Summary Judgment Award for Defendants
On March 15, 2021, the district court denied summary
judgment to American Oversight and granted it to defendants,
relying exclusively on FOIA Exemption 5. See American Oversight
v. DOJ, 2021 WL 964220, at *2 (holding documents “properly withheld
in full or in part under FOIA Exemption 5 because they are attorney
work product prepared in anticipation of litigation”); id. at *4 (finding
it unnecessary to address arguments pertaining to Exemptions 6 and
7(C)). In so ruling, the district court found that the records (1) had
been prepared either by prosecutors or by agents working at the
substantial direction of prosecutors; (2) had been prepared in
anticipation of litigation; (3) had not been previously disclosed; and
(4) that disclosure “would reveal prosecutors’ selection of witnesses
to interview, as well as their mental impressions, legal theories, case

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analysis, and strategic decisions.” Id. at *3 (quoting McKay Decl.
¶ 36).
In urging otherwise, American Oversight had argued that the
records were not work product because, at the time of their creation,
the government anticipated their disclosure during any subsequent
prosecutions. The district court was not persuaded, observing that
“[d]isclosure obligations are different under the FOIA and in criminal
proceedings.” Id. American Oversight also had argued that the
government failed to show that memorializing agents were acting
under the substantial direction of prosecutors (as required for non-
lawyer memoranda to constitute attorney work product), but the
district court found to the contrary based on AUSA McKay’s
declaration. See id. at *4.
Finally, the district court rejected the argument on which
American Oversight primarily relies on this appeal: that DOJ waived
any work-product protection “because the content of the interviews
necessarily was disclosed to the DOJ’s litigation adversaries, the very
people who were interviewed.” Id. at *3. The district court reasoned
that (1) the documents themselves—notes and memoranda
memorializing interviews—had never been shared with any
interviewees; (2) the documents “necessarily reflect” undisclosed
matters such as “the thought process of those who created them—
including what is omitted, what is recorded, how it is recorded, how
it is characterized, what is emphasized, how it is organized, and so
forth”; and (3) releasing the documents “would reveal the never
disclosed fact of who were the uncharged subjects and targets” of the
investigation. Id.

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After the district court’s March 16, 2021 entry of final judgment
for defendants, American Oversight timely filed this appeal.
DISCUSSION
I. The FOIA and Its Exemptions
We review de novo an award of summary judgment in a FOIA
case. See, e.g., New York Times Co. v. DOJ (“N.Y. Times v. DOJ”), 939
F.3d 479, 488 (2d Cir. 2019). In conducting such review here, we are
mindful both that FOIA “strongly favor[s] public disclosure of
information in the possession of federal agencies” and that an agency
withholding documents responsive to a FOIA request bears the
burden of showing that a FOIA exemption shields the materials at
issue. Knight First Amend. Inst. at Columbia Univ. v. U.S. Citizenship &
Immigr. Servs. (“Knight v. USCIS”), 30 F.4th 318, 327 (2d Cir. 2022).
An agency can carry this burden at the summary judgment
stage through sworn declarations that are factually uncontroverted
and sufficiently detailed to have the exemption appear “logical and
plausible.” Id. (citation omitted). As this court recently stated in
Knight v. USCIS,
Summary judgment is appropriate where
the agency declarations describe the
justifications for nondisclosure with
reasonably specific detail, demonstrate that
the information withheld logically falls
within the claimed exemption, and are not
controverted by either contrary evidence in
the record or by evidence of agency bad
faith.

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Id. (internal quotation marks omitted). Upon such a showing, a
plaintiff who nonetheless seeks to compel disclosure “must make a
showing of bad faith on the part of the agency . . . or provide some
tangible evidence that an exemption claimed by the agency should
not apply or summary judgment is otherwise inappropriate.” Carney
v. DOJ, 19 F.3d at 812 (citations omitted).
The FOIA affords nine, exclusive exemptions from its
otherwise broad disclosure obligations. See 5 U.S.C. § 552(b)(1)–(9).
In other words, the FOIA is “structured [so that] virtually every
document generated by [a federal] agency is available to the public in
one form or another, unless it falls within one of the Act’s nine
exemptions.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975).
Each exemption identifies an important interest—e.g., national
security, foreign policy, fair trials, unobstructed criminal
investigations, the adversarial process, personal privacy—that “may
at times conflict with [the FOIA’s] policy of full disclosure,” Halpern
v. FBI, 181 F.3d 279, 286–87 (2d Cir. 1999), but that Congress,
nevertheless, deems sufficiently important to “outweigh the need for
transparency,” Knight v. USCIS, 30 F.4th at 321. Because these
exemptions limit the broad disclosure otherwise required by the
FOIA, we construe them narrowly. See Long v. Off. of Pers. Mgmt., 692
F.3d 185, 190 (2d Cir. 2012). At the same time, we recognize that the
interests served by the exemptions “are as much a part of [the] FOIA’s
purposes and policies as the statute’s disclosure requirement.” Food
Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019)
(alterations and internal quotation marks omitted).

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With these principles in mind, we proceed to consider the
exemption here at issue, FOIA Exemption 5; its protection of attorney
work product; and defendants’ claim to that protection.
II. FOIA Exemption 5 and Work-Product Protection
FOIA Exemption 5 shields from disclosure “inter-agency or
intra-agency memorandums or letters 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). The Supreme Court has instructed that “[t]he test
under Exemption 5” is not whether such documents might ever be
disclosed in civil litigation, but “whether the documents would be
‘routinely’ or ‘normally’ disclosed upon a showing of relevance.”
FTC v. Grolier Inc., 462 U.S. 19, 26 (1983). Thus, “[c]ourts universally
read [Exemption 5] to mean that agency documents that would be
privileged in ordinary civil discovery are also protected from
disclosure under FOIA.” N.Y. Times v. DOJ, 939 F.3d at 488.
Among the documents that would be privileged in ordinary
civil discovery are those constituting “attorney work product.” Id.10
On this point, the Supreme Court has observed that “Congress had
the attorney’s work-product privilege specifically in mind when it
adopted Exemption 5.” NLRB v. Sears, Roebuck & Co., 421 U.S. at 154
(citing S. Rep. No. 813, 89th Cong., 1st Sess., 2 (1965)). Moreover,
Congress contemplated that such work-product protection would
10 It has been observed that the protection afforded attorney work product is not a “true
privilege[]” because it can be overcome upon a showing of need. E. Imwinkelried, The New
Wigmore: A Treatise on Evidence: Evidentiary Privileges § 1.3.11 (4th ed. 2022); see infra at 20 –
21 (discussing need showing). “Nevertheless, like most courts, we will for convenience”
sometimes refer to the protection afforded attorney work product by law as a “privilege.”
N.Y. Times v. DOJ, 939 F.3d at 489 n.4.

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extend to government attorneys. See id. (citing Senate Report and case
law in concluding that Exemption 5 protection for work product
applies to working papers of government attorneys).
A. Hickman v. Taylor
By comparison to evidentiary privileges such as the attorney-
client or spousal privileges, which derive from common law,
attorney-work-product protection was recognized only in the last
century. The trigger was the adoption of the Federal Rules of Civil
Procedure, which took effect in 1938. While these rules established
“liberal discovery mechanisms” to streamline the production of
evidence in civil litigation, they gave rise to a concern that “if
litigators aggressively employed their new discovery tools, that
development would reduce attorneys’ incentive to gather all relevant
data” because of a “fear that they might be gathering damning
evidence that they would later have to surrender to the opposition.”
E. Imwinkelried, The New Wigmore: A Treatise on Evidence: Evidentiary
Privileges § 1.3.11 (4th ed. 2022) [hereinafter “Wigmore: Evidence”].
The Supreme Court first addressed this concern in Hickman v.
Taylor, 329 U.S. 495 (1947). The Court there recognized that “[p]roper
preparation of a client’s case demands that [the attorney] assemble
information, sift what he considers to be the relevant from the
irrelevant facts, prepare his legal theories and plan his strategy
without undue and needless interference.” Id. at 511. The Court
observed that these efforts are “reflected, of course, in interviews,
statements, memoranda, correspondence, briefs, mental impressions,
personal beliefs, and countless other tangible and intangible ways”
aptly termed attorney “work product.” Id. The Court concluded that

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the compelled disclosure of such attorney work product would have
a seriously detrimental effect on the adversarial system, which itself
plays a critical role in the administration of justice:
Were 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.
Id. To safeguard against such consequences, the Supreme Court read
into the fledgling Rules of Civil Procedure an implicit protection for
“the ‘Work product of the lawyer,’” shielding it from discovery. Id.
at 511–12.
The documents afforded work-product protection in Hickman
were signed statements and (as here) interview memoranda, which
the attorney for a tugboat owner had gathered from survivors of, or
witnesses to, a fatal tugboat accident. In subsequent litigation,
decedents’ representatives sought discovery of the documents. The
attorney refused and was held in contempt. Although the contempt
was reversed on appeal, the Supreme Court agreed to review the case
in light of “[t]he importance of the [discovery] problem, which has
engendered a great divergence of views among district courts.” Id. at
500.

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Observing that the demanded documents were not protected
by the attorney-client privilege, see id. at 508 (explaining that
attorney’s communications had been with third parties, not clients),
the Supreme Court nevertheless unanimously ruled them “outside
the arena of discovery,” reasoning that “[n]ot even the most liberal of
discovery theories can justify unwarranted inquiries into the files and
the mental impressions of an attorney,” id. at 510. The Court
explained that an attorney’s ability to “work with a certain degree of
privacy, free from unnecessary intrusion by opposing parties and
their counsel,” is “essential to an orderly working of our system of
legal procedure.” Id. at 510, 512; see also id. at 516 (Jackson, J.,
concurring) (observing that, in adversarial system, “[d]iscovery was
hardly intended to enable a learned profession to perform its
functions . . . on wits borrowed from the adversary”). Deeming it
“instrumental” to the adversarial system and, therefore, to the
administration of justice, that “attorneys have the maximum incentive
to prepare for trial by creating and gathering useful litigation-related
material,” the Court in Hickman shielded such material from civil
discovery. Wigmore: Evidence § 1.3.11.11
In so ruling, Hickman clarified the scope of the nascent work-
product doctrine in two instructive ways. First, the Court recognized
a broad range of materials to constitute attorney work product:
“interviews, statements, memoranda, correspondence, briefs, mental
impressions, personal beliefs, and countless other tangible and
intangible [things].” Hickman v. Taylor, 329 U.S. at 511. In short, the
11 The Supreme Court later acknowledged that the work-product doctrine also applies in
the criminal context, observing that its “role in assuring the proper functioning of the
criminal justice system is even more vital.” United States v. Nobles, 422 U.S. 225, 238 (1975).

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Court did not limit work product to materials that specifically
memorialized an attorney’s legal theories and strategy. Rather, it
recognized work product also to include factual materials assembled
by an attorney, such as the signed survivor statements and witness
interview memoranda there collected by the tugboat owner’s
attorney. See id. Second, the Court instructed that, while work-
product protection shielded this broad range of materials, the
protection it afforded was not absolute. Rather, “discovery [of work
product] may properly be had” upon a showing of sufficient need. Id.
The “burden,” however, “rests on the one who would invade
[attorney] privacy to establish adequate reasons to justify
production” of work product. Id. at 512.
B. Rule 26(b) Codifies the Work-Product Doctrine
Hickman’s identification of implicit work-product protection in
the then-existing Federal Rules of Civil Procedure met with some
skepticism. See, e.g., 1 R. Mosteller et al., McCormick on Evidence § 96
(8th ed. July 2022 update) (noting “labored path followed by the
Court to the conclusion” that “qualified work product privilege was
. . . covered by . . . rules as then written”). Concerns were allayed,
however, by the 1970 codification of the work-product doctrine in
Federal Rule of Civil Procedure 26(b).
That rule states, in relevant part, that “[o]rdinarily, a party may
not discover documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another party or its

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representative.” Fed. R. Civ. P. 26(b)(3)(A).12 As this court has
observed, the quoted language sweeps broadly, such that documents
memorializing “[n]ot only an attorney’s mental impressions and
opinions about a case but also the results of the attorney’s factual
investigations in anticipation of the case may constitute attorney
work product.” N.Y. Times v. DOJ, 939 F.3d at 489.13 At the same time,
however, the rule’s introductory word, “ordinarily,” signals that
work-product protection is not absolute. Indeed, Rule 26 thereafter
expressly states that attorney work product may be discovered if the
materials at issue (i) “are otherwise discoverable” under the Federal
Rules; and (ii) the requesting “party shows that it has substantial need
for the materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.” Fed.
R. Civ. P. 26(b)(3)(A)(i)–(ii). Even upon such a showing, however,
Rule 26 requires a court ordering discovery of work-product
12 While the Supreme Court deems Rule 26 to “substantially incorporate[]” the work-
product doctrine identified in Hickman, see Upjohn Co. v. United States, 449 U.S. 383, 398
(1981), some courts and commentators have suggested that Hickman furnishes protection
beyond that provided by Rule 26, insofar as the latter pertains only to documents and
tangibles. See 8 R. Marcus, Federal Practice & Procedure (Wright & Miller) § 2024 (3d ed. Apr.
2022 update); see also United States v. Deloitte LLP, 610 F.3d 129, 135 (D.C. Cir. 2010) (stating
that Rule 26 “partially codifie[s]” the work-product doctrine); Sporck v. Peil, 759 F.2d 312,
316 (3d Cir. 1985) (same). We need not here pursue the point because American
Oversight’s FOIA request pertains to documents and, for reasons stated herein, we
conclude that both Rule 26 and Hickman support the award of summary judgment to
defendants in this case.
13 This effectively, if not explicitly, rejects the conclusion reached by some district courts
that witness statements—particularly verbatim statements—are work product only to the
extent “they reveal an attorney’s strategic impressions and mental processes,” not when
they merely record the witnesses’ factual observations. See N.Y. Times v. DOJ, 138 F. Supp.
3d 462, 471 –72 (S.D.N.Y. 2015), aff’d in part, rev’d in part & remanded, 939 F.3d 479; see also
Murphy v. Kmart Corp., 259 F.R.D. 421, 431 (D.S.D. 2009). As the discussion in text shows,
Rule 26 affords absolute protection to the former, and only qualified protection to the latter.
Nevertheless, both are work product. American Oversight does not argue otherwise here.

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21
materials to “protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of a party’s attorney or other
representative concerning the litigation.” Id. R. 26(b)(3)(B). In sum,
Rule 26, like Hickman, recognizes as work product both the factual
fruits of an attorney’s investigations—sometimes referred to as “fact
work product”—and an attorney’s mental impressions and
opinions—sometimes referred to as “opinion work product,” In re
Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir.
2007)—but it affords absolute protection only to the latter while
affording qualified protection to the former. See N.Y. Times v. DOJ,
939 F.3d at 489; see also In re Sealed Case, 676 F.2d 793, 811 (D.C. Cir.
1982) (observing that Hickman established “two-tiered structure” with
“qualified protection for ‘fact’ work product and more absolute
protection for ‘opinion’ work product”).
III. The Withheld Materials Constitute Work Product
Upon de novo review, we conclude, as the district court did, that
the 27 documents here at issue constitute attorney work product
shielded from civil discovery by Fed. R. Civ. P. 26 and, thus, from
disclosure by FOIA Exemption 5.
That the materials constitute work product under Rule 26 is
evident from AUSA McKay’s declaration, which states that the
documents at issue were all “prepared in anticipation of litigation,”
specifically, the potential prosecution of campaign-finance-law
violations or of obstruction of justice revealed by the Investigation.
McKay Decl. ¶ 13; see Fed. R. Civ. P. 26(b)(3)(A). McKay further states
that the materials at issue were prepared by law enforcement agents
who were memorializing interviews conducted by federal

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22
prosecutors or by agents working under the substantial direction of
prosecutors.14 This satisfies Rule 26’s broad definition of attorney
work product as materials prepared “by or for a[] party or its
representative (including . . . the party’s attorney . . . or agent).” Fed.
R. Civ. P. 26(b)(3)(A). As the Supreme Court has recognized, one of
the “realities of litigation in our adversary system . . . is that attorneys
often must rely on . . . investigators and other agents in the
compilation of materials in preparation for trial.” United States
v. Nobles, 422 U.S. 225, 238 (1975). Thus, it affords work-product
protection to “material prepared by agents for the attorney as well as
those prepared by the attorney himself.” Id. at 238–39.
Prosecutors’ use of agents to conduct or memorialize
interviews is not unusual in criminal investigations, and courts have
frequently held 302s as well as prosecutors’ own memoranda to
constitute attorney work product. See, e.g., N.Y. Times v. DOJ, 939 F.3d
at 494 (holding prosecutorial memoranda to be work product); see also
Judicial Watch, Inc. v. DOJ, 806 F. App’x 5, 7 (D.C. Cir. 2020) (holding
302s to warrant FOIA Exemption 5 work-product protection); SEC
v. Collector’s Coffee Inc., No. 19-CV-4355, 2021 WL 391298, at *4–5
(S.D.N.Y. Feb. 4, 2021) (holding SEC notes based on 302s protected
work product); Leopold v. DOJ, 487 F. Supp. 3d 1, 11 (D.D.C. 2020)
14 While American Oversight argued in the district court that defendants had failed to show
that non-attorney agents were working under the substantial direction of federal
prosecutors, it does not maintain that argument on appeal and, thus, can be understood to
have waived it. See, e.g., Chevron Corp. v. Donziger, 990 F.3d 191, 203 (2d Cir. 2021).

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23
(holding 302s protected by work-product privilege under FOIA
Exemption 5).15
American Oversight nevertheless submits that it is “not even
clear” that the documents at issue qualify as “work product” because
defendants knew or should reasonably have recognized that these
documents “would necessarily [have] be[en] turned over in any
prosecution resulting from the investigation.” App’t Br. at 17.16
American Oversight asserts that, in these circumstances, “the
purposes of the [attorney-work-product] doctrine—ensuring a zone
of privacy for litigation preparation—are not served by the protection
of these memoranda.” Id. We are not persuaded.17
First, American Oversight’s claim that the documents at issue
would necessarily have been turned over in any ensuing prosecution
is belied by the record. The sole defendant to be prosecuted as a result
of the Investigation, Michael Cohen, pleaded guilty to an information
before any obligations to disclose the disputed documents ever arose.
15 Two of the 302s afforded Exemption 5 protection by the district court in Leopold are at
issue in this case.
16 American Oversight cites “longstanding policy” of the SDNY U.S. Attorney’s Office to
support this argument. App’t Br. at 17 & n.10 (citing SDNY Discovery and Disclosure
Policy (Oct. 15, 2010)). This appears to reference that office’s practices for complying
(sometimes complying early) with disclosure obligations imposed by federal rule, statute,
and the Constitution. See Fed. R. Crim. P. 16(a)(1)(A); 18 U.S.C. § 3500(a)–(b); Brady
v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 153– 55 (1972).
17 Defendants submit—not without some force—that American Oversight failed
adequately to preserve this argument for appeal. We need not decide the question because,
even if we were to do so in American Oversight’s favor, its argument fails on the merits.

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24
Second, attorneys prepare all sorts of documents that they know
or reasonably anticipate will be turned over to adversaries in the
course of litigation: motion papers, interrogatories, briefs, etc.
Nevertheless, unless and until such documents are in fact turned
over, they are recognized as protected work product. See Hickman
v. Taylor, 329 U.S. at 511 (including “briefs” in list of documents
entitled to work-product protection); Institute for Dev. of Earth
Awareness v. People for Ethical Treatment of Animals, 272 F.R.D. 124, 125
(S.D.N.Y. 2011) (holding that lawyers’ drafts of non-party witness
affidavits “do not lose their character as work product because a final
executed version has been affirmatively used in the litigation”).
Third, like the Court of Appeals for the D.C. Circuit, we
conclude that the possibility that materials gathered or prepared by
federal authorities may have to be produced in criminal discovery
“has no bearing” on whether the materials constitute work product
for purposes of a FOIA request. Williams & Connolly v. SEC, 662 F.3d
1240, 1244 (D.C. Cir. 2011). “In criminal trials, evidentiary privileges
may give way for any number of reasons . . . based on different legal
standards than disclosure under FOIA.” Id. at 1244–45; see also supra
at 23 n.16. FOIA Exemption 5, however, instructs courts to look to
the rules governing federal civil—not criminal—litigation to
determine whether the documents at issue would be discoverable by
an opposing party. See N.Y. Times v. DOJ, 939 F.3d at 488 (observing
that courts “universally” look to rules of “civil discovery” in applying
Exemption 5).
The documents here at issue would not ordinarily be
discoverable under the civil rules, particularly Rule 26, and American

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25
Oversight does not contend otherwise. It may be that, once
prosecutors disclose attorney work product materials in a criminal
proceeding, they can no longer claim work-product protection for
purposes of Exemption 5. But that would result from waiver of the
protection, not from the fact that the materials were never protected
work product to begin with. See United States v. Nobles, 422 U.S. at 239
(holding that counsel’s attempt to make testimonial use of work
product materials at criminal trial waived protection).
Thus, like the district court, we conclude that the 27 documents
at issue constitute protected work product. We, therefore, turn to
American Oversight’s main argument on appeal: defendants’
purported waiver of work-product protection.
IV. Defendants Have Not Waived Work-Product Protection
for the Documents at Issue
A. Waiver of Work-Product Protection
Like other discovery privileges, work-product protection is
waivable. Such waiver precludes reliance on FOIA Exemption 5 to
withhold or redact responsive documents. See N.Y. Times v. DOJ, 939
F.3d at 494. But just as it is the party invoking work-product
protection (here, defendants) that bears the burden of demonstrating
that a withheld document qualifies as such, it is the party asserting
waiver (here, American Oversight) that bears the burden of
demonstrating that the protection has been forfeited. See Knight
v. USCIS, 30 F.4th at 332–33 (noting that, in FOIA context, burden of
establishing waiver—there, of protection under Exemption 7(E)—is
on requester); see also Hickman v. Taylor, 329 U.S. at 512 (stating that

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26
“burden rests on the one who would invade [attorney] privacy to
establish adequate reasons to justify production”).
“A party waives the work product protection by taking actions
inconsistent with . . . its purpose.” N.Y. Times v. DOJ, 939 F.3d at 494;
see also Merrill Lynch & Co., Inc. v. Allegheny Energy, Inc., 229 F.R.D.
441, 445 (S.D.N.Y. 2004) (“Generally speaking, the work product
privilege should not be deemed waived unless disclosure is
inconsistent with maintaining secrecy from possible adversaries.”
(internal quotation marks and alterations omitted)) (quoted
approvingly in N.Y. Times v. DOJ, 939 F.3d at 494–95). As noted supra
at 16–17, the purpose for which the law affords work-product
protection is to ensure a vital adversarial process, which, in turn,
serves the proper administration of justice. Actions inconsistent with
this purpose can include the “disclos[ure of] work product,” whether
to the public at large or to an actual or anticipated litigation
“adversary.” N.Y. Times v. DOJ, 939 F.3d at 494; accord In re Steinhardt
Partners, L.P. (“Steinhardt Partners”), 9 F.3d 230, 235 (2d Cir. 1993)
(“Once a party allows an adversary to share the otherwise privileged
thought processes of counsel, the need for the privilege disappears.”).
Waiver by disclosure to an adversary, moreover, affords other
persons access to the disclosed work product. See Steinhardt Partners,
9 F.3d at 235 (rejecting idea of selective disclosure adopted by some
courts and holding that company’s transmittal to SEC—a potential
litigation adversary—of memorandum prepared by company
attorney in response to agency inquiry waived document’s work-
product protection as to shareholder plaintiffs in subsequent
litigation).

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27
Further, while waiver by disclosure can be made by
transmitting the actual work-product document to a potential
adversary, as was the case in Steinhardt Partners, it can also be made
through statements describing the protected document with
“sufficient[] specific[ity].” N.Y. Times v. DOJ, 939 F.3d at 494–95
(holding that Attorney General’s public statements discussing
contents of confidential DOJ memoranda waived work-product
privilege as to those parts of memoranda discussed with specificity,
but not as to other parts not discussed with specificity). The
statements found to effect waiver by disclosure in N.Y. Times v. DOJ
were made to the public at large, rather than to a litigation adversary.
Nevertheless, the reasoning of N.Y. Times v. DOJ applies in both
contexts.
In applying the waiver principles just outlined, we are mindful
that Steinhardt Partners cautions against “rigid” rules. 9 F.3d at 236.
In that case, this court specifically “decline[d] to adopt a per se rule
that all voluntary disclosures to the government waive work product
protection.” Id.18 Rather, it instructed that “[c]rafting rules relating to
[work-product] privilege in matters of governmental investigations
must be done on a case-by-case basis,” id., with “[c]ommon sense and
the practicalities of litigation defin[ing] the limits of the work product
doctrine,” id. at 235; accord N.Y. Times v. DOJ, 939 F.3d at 495 (quoting
Steinhardt Partners).
18 The court observed that in some circumstances, the disclosing party and the government
might “share a common interest in developing legal theories and analyzing information,”
or they may “have entered into an explicit agreement that the SEC will maintain the
confidentiality of the disclosed materials.” Steinhardt Partners, 9 F.3d at 236. Defendants
do not contend that those are the circumstances here.

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28
Following those instructions here, we conclude that defendants
did not waive work-product protection with respect to the documents
at issue.
B. Defendants Did Not Waive Work-Product Protection
When Interviewing the Subjects or Targets of Their
Investigation
The gravamen of American Oversight’s argument on appeal is
that defendants waived any work-product protection for documents
memorializing interviews with the targets or subjects of the
Investigation because (1) such subjects or targets were litigation
adversaries (2) to whom the contents of the documents at issue had
necessarily been disclosed in the course of their interviews. We need
not here decide whether American Oversight’s first point is correct
because, even if we were to accept its characterization of targets and
subjects as litigation adversaries arguendo, its waiver argument fails.19
19 American Oversight cites Steinhardt Partners to support its characterization of targets and
subjects as DOJ’s litigation adversaries. In Steinhardt Partners, this court held that a
company that was the “subject” of an SEC investigation was in an adversarial relationship
with the agency although no formal enforcement action had yet been instituted. Thus,
when the company submitted a memorandum prepared by its attorneys to the SEC in
response to an agency request, this court held that the company waived any work-product
protection for the document and, therefore, had to produce it in response to shareholders’
request. See Steinhardt Partners, 9 F.3d at 234. This was no novel conclusion; other courts
had similarly ruled with respect to SEC investigations. See, e.g., Westinghouse Elec. Corp.
v. Republic of Philippines, 951 F.2d 1414, 1428 (3d Cir. 1991) (professing “no difficulty” in
concluding that “target” of SEC and DOJ investigations, which had disclosed documents
to agencies after reaching plea agreement, was adversary of those agencies); In re Subpoenas
Duces Tecum, 738 F.2d 1367, 1369, 1372 (D.C. Cir. 1984) (stating “no question” that party
was in adversarial relationship to SEC when it made disclosures to agency pursuant to
program promising wrongdoers “more lenient treatment” and “chance to avoid formal
investigation and litigation” (internal quotation marks omitted)).

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29
In reaching that conclusion, our reasoning departs somewhat
from that of the district court. For example, we do not reject American
Oversight’s waiver claim because the requested documents were not
themselves ever disclosed to any litigation adversary. Rather, we
assume that disclosure amounting to waiver can be made through
statements distinct from the work-product document, provided those
statements are “sufficiently specific” in revealing the latter’s content.
N.Y. Times v. DOJ, 939 F.3d at 496. The problem for American
Oversight, as we explain in more detail below, is that it cannot show
that the statements on which it relies, all made during investigatory
interviews, waived work-product protection for documents created
thereafter. It is in this context that the fact that the documents
themselves were never disclosed is relevant. We also do not reject
American Oversight’s waiver claim solely because the documents at
issue reveal attorney opinions and strategies. That fact might well
preclude discovery of such material even on a showing of need. See
Fed. R. Civ. P. 26(b)(3)(B). But if defendants actually waived attorney-
work-product protection for the documents at issue, they could not
There is, however, reason to proceed cautiously in concluding that Steinhardt Partners
supports the identification of the adversarial relationship urged here by American
Oversight. Notably, it is not apparent that in Steinhardt Partners and the other SEC cases
cited, courts were using the words “target” and “subject” as defined in DOJ policy. See
supra at 3 n.2. DOJ defines the “target” of a criminal investigation as someone who, based
on the evidence, can be denominated as a “putative defendant.” Justice Manual § 9-11.151.
By contrast, it defines a “subject” as anyone whose “conduct”—whether innocent or
suspicious—is “within the scope of the grand jury’s investigation.” Id. Even if a “putative
defendant” might be deemed a litigation adversary of the government for purposes of
identifying waivers of work-product protection, it is more questionable whether that
conclusion obtains with respect to every person whose conduct is within the scope of a
grand jury’s investigation. We do not explore the point further. Instead, we assume
arguendo that Investigation targets or subjects were defendants’ litigation adversaries
because, even doing so, we conclude for reasons stated in text that American Oversight’s
waiver argument fails.

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30
avoid disclosure even of opinions and strategies contained therein.
But there was no such waiver here.
To explain, we start with the unusual chronology underlying
American Oversight’s waiver claim. A waiver of work-product
protection generally occurs when an attorney discloses to a litigation
adversary the contents of a protected document. This presupposes
the existence of the document before disclosure is made. In such
circumstances, the attorney’s disclosure of the existing document’s
contents—whether made by transmitting the document itself, as in
Steinhardt Partners, or by describing its contents with specificity, as in
N.Y. Times v. DOJ—is an action sufficiently inconsistent with
maintaining the confidentiality of the work product as to be
recognized as a waiver.
American Oversight, however, proposes to turn this waiver
principle around, arguing that an attorney can waive protection for
work-product documents even before the documents exist.
Specifically, American Oversight reasons that, by interviewing
targets and subjects in this case, defendants necessarily disclosed to
those litigation adversaries any and all matters discussed during the
interview and, thereby, waived work-product protection for
documents subsequently created to memorialize those interviews.
The reasoning is flawed in several respects.
First, it is difficult to reconcile with Rule 26, which affords
work-product protection to “documents and tangible things.” Fed. R.
Civ. P. 26(b)(3)(A). The Rule thus appears to contemplate the
existence of a document before work-product privilege can attach to it,
and, therefore, before that protection is waived. But even assuming

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31
that, in some circumstance, waiver might precede work-product
documentation, American Oversight’s argument that this is such a
case suffers other, more serious flaws.
Second, while any interviewed targets or subjects may have
heard what was said during their interviews, what was not disclosed
to them was how defendants would memorialize the interviews in
documents subsequently prepared in anticipation of litigation. By
interviewing purported litigation adversaries, defendants did
nothing to signal that they had no interest in maintaining the
confidentiality of that yet-to-be-created work product.
Indeed, in deciding how to memorialize an interview—
including an interview with a litigation adversary—an attorney (or
his agent) necessarily makes choices about structure, content,
wording, emphasis, etc., that can reveal his thinking about the
interview, his theories of investigation, and areas for possible further
inquiry.20 That work product, not revealed to the interviewed
litigation adversary, is shielded by Rule 26 and Hickman, and nothing
in defendants’ interview conduct was inconsistent with maintaining
that protection.
In seeking to avoid that conclusion, American Oversight
emphasizes that, in preparing 302s, FBI agents are instructed to
recount only what a witness said and not the interviewer’s opinions
20 For example, an attorney may conduct an interview in a seemingly straightforward,
chronological manner, thereby mixing insignificant inquiries with critical ones, the better
to conceal what the attorney already knows or does not know about the matter at issue
and his theories of the case. But he may then structure his memorialization of that
interview in a completely different manner, e.g., by reference to topics, persons, or events,
thereby exposing the focus of his concerns, theories, and developing strategies.

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32
or contextual comments. See supra at 8 n.6. But even following such
instructions, an agent must make myriad choices—about what parts
of the interview to recount in detail and what parts to summarize;
when to quote responses and when to paraphrase them; whether to
track the order of the interview, the chronology of the events
discussed, or the topics covered—that can reveal impressions,
opinions, and theories without expressly stating them. In his
declaration, AUSA McKay states that such is the case here, and
American Oversight has adduced no evidence to the contrary.21
Third, and in any event, American Oversight seriously
overstates what defendants disclosed at interviews with any targets or
subjects. Defendants may have disclosed their own questions to the
interviewees, but it was the interviewees who disclosed their
answers. As to those answers—which are the crux of what is
memorialized in the documents American Oversight seeks—
defendants cannot be charged with the disclosure necessary to
demonstrate waiver. To the contrary, by memorializing answers
disclosed to them by targets and subjects of their investigation,
defendants created classic work product. See Hickman v. Taylor, 329
U.S. 495.22 It is in that context that it becomes significant that,
21 The few disclosed sentences from the otherwise redacted Cohen 302 demonstrate agent
choices in paraphrasing and quoting interview answers. See supra at 9.
22 American Oversight strives to distinguish this case from Hickman on the grounds that
the interviewees there were not litigation adversaries and, thus, the Supreme Court had
no reason to consider waiver. We agree that Hickman says nothing about waiver, but that
silence is not readily attributed to the interviewees’ non-adversary status. While the most
obvious potential litigation adversaries in Hickman were the deceased victims’ estates, a
competent attorney, in interviewing survivors of such a deadly accident, would have
recognized that they too might have claims for physical or emotional injury and, thus, be

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33
defendants thereafter never disclosed the protected documents or
their contents to anyone. In short, with respect to their interviewees’
answers, defendants never acted in a way “inconsistent” with
affording work-product protection to the memorializing documents.
N.Y. Times v. DOJ, 939 F. 3d at 494.
Fourth, insofar as defendants disclosed questions to interview
subjects and targets, American Oversight has not specifically argued
for production of such parts of the requested documents as
memorialize those questions, absent the answers. Even if such an
argument might be inferred from American Oversight’s general
reliance on FOIA’s segregability requirement,23 and from its response
to defendants’ argument for protection of their questions,24 it fails to
persuade. That is because American Oversight has adduced no
evidence showing a sufficiently specific match between the questions
asked at the interview and how any such questions would have been
recorded in protected documents. See N.Y. Times v. DOJ, 939 F.3d at
497.
potential adversaries. In sum, we are not persuaded that American Oversight can dismiss
Hickman in urging that work-product protection does not apply to memoranda
memorializing attorney interviews with litigation adversaries.
23 “Any reasonably segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are exempt under this
subsection.” 5 U.S.C. § 552(b).
24 Defendants oppose the disclosure of questions because that would reveal “the topics
discussed (and not discussed) with each witness, the focus and emphasis of the
prosecutors, and their thinking about the substance of the case.” App’ee Br. at 9. American
Oversight replies that to the extent such matters were disclosed to litigation adversaries
during the interview, the prosecution waived its interests in maintaining the
confidentiality of these matters.

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34
The FBI guide on which American Oversight relies instructs
that 302s should “contain a record of statements made by the
interviewee.” FBI, Domestic Investigations and Operations Guide § 18-33
(Mar. 3, 2016). Nothing in that guide instructs agents to record
questions. Thus, consistent with the guide, an agent could well
memorialize an interviewee’s statements in narrative form with no
reference to questions as, for example, by indicating that, “The
witness stated . . . ,” or “The witness reported . . . ,” or “The witness
admitted . . . .” Or, consistent with the guide, an agent might contract
a series of questions asked into one summary question before then
recounting the interviewee’s responses in detail.25 In both
circumstances it is difficult to conclude that the urged disclosure—the
posing of particular questions at the interview—describes the
resulting work product with the specificity necessary for waiver. See
N.Y. Times v. DOJ, 939 F.3d at 495, 497.
Nor would the possibility of inferring the questions asked from
the memorialized answers warrant any FOIA disclosure, as the
questions would then not be “reasonably segregable” from the
memorialized answers for which there has been no waiver of work-
product protection. 5 U.S.C. § 552(b); see, e.g., ACLU of N. Cal. v. DOJ,
880 F.3d 473, 488–89 (9th Cir. 2019) (stating that where protected work
product is “so closely intertwined with” unprotected material “that
the two categories of material cannot be easily separated,”
segregation of non-exempt material is not possible); cf. N.Y. Times
25 For example, a 302 might summarize a series of identification questions as follows:
“Asked about his background, [name] stated as follows . . . ,” before then detailing what
the interviewee said about name[s], residences, relatives, education, employment, arrest
records, etc.

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35
v. DOJ, 939 F.3d at 496–97 (holding, in context of agency legal
memoranda, disclosure of certain information did not waive work-
product protection for other segregable parts of document).26
Accordingly, because we conclude that American Oversight
has failed to demonstrate that defendants waived the work-product
protection afforded by Fed. R. Civ. P. 26 and FOIA Exemption 5 with
respect to the documents sought, we affirm the award of judgment in
favor of defendants.27
26 To the extent these problems of specificity and severability derive from the fact that a
written memorialization of an interview is necessarily distinct from the interview itself
because of choices made as to how to document the latter, this only reinforces our second
reason for rejecting the waiver argument, i.e., that the written memorialization reflects
work product never revealed in the interview.
27 American Oversight makes no particular argument for defendants to produce, at a
minimum, such parts of the disputed documents as identify interviewed persons as
“subjects” or “targets.” Such an argument would, in any event, be unsuccessful. As a
matter of waiver by disclosure of work-product protection, no evidence shows that subject
status was disclosed to interviewees or that anyone other than Michael Cohen was a target.
See supra at 28–29 n.19. We thus need not here consider—or remand for the district court
to consider—whether documents memorializing such statuses for persons never charged
with a crime would be shielded by FOIA Exemption 7(C). See 5 U.S.C. § 552(b)(7)(C)
(protecting against unwarranted invasions of personal privacy); National Archives & Recs.
Admin. v. Favish, 541 U.S. 157, 166 (2004) (noting “special reason” to protect personal data
under Exemption 7(C) because law-enforcement documents “often contain information
about persons interviewed as witnesses or initial suspects but whose link to the official
inquiry may be the result of mere happenstance”); Neely v. FBI, 208 F.3d 461, 464–65 (4th
Cir. 2000) (holding that identities of suspects and witnesses were properly withheld under
Exemption 7(C)); Computer Pros. for Soc. Resp. v. U.S. Secret Serv., 72 F.3d 897, 904 (D.C. Cir.
1996) (“Exemption 7(C) takes particular note of the strong interest of individuals, whether
they be suspects, witnesses, or investigators, in not being associated unwarrantedly with
alleged criminal activity.” (citation omitted)); Halloran v. Veterans Admin., 874 F.2d 315, 320
(5th Cir. 1989) (observing, in discussing basis for Exemption 7(C), that “[t]here can be no
clearer example of an unwarranted invasion of privacy than to release to the public that
another individual was the subject of a criminal investigation”); see also Behar v. U.S. Dep’t
of Homeland Sec., 39 F.4th 81, 94 (2d Cir. 2022) (same regarding assuring witnesses
confidentiality under Exemption 7(C)).

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36
CONCLUSION
For the reasons stated, we conclude that plaintiff American
Oversight's FOIA request fails because the documents sought are
shielded by FOIA Exemption 5.
Defendants have carried their burden to show that memoranda
and notes created by prosecutors and agents in memorializing
interviews they conducted during a criminal investigation are
attorney work product shielded from ordinary civil discovery by Fed.
R. Civ. P. 26 and, therefore, from production under FOIA Exemption
5.
American Oversight has failed to show that defendants waived
this protection by disclosing to investigation “targets” and “subjects”
during their interviews the contents of these yet-to-be-created
documents.
Accordingly, the district court’s award of summary judgment
to defendants is AFFIRMED.

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