Federal Blue Book Kept Under Wraps in D.C.

     (CN) – The Department of Justice properly withheld its criminal discovery manual, known as the “Blue Book,” from criminal defense attorneys, a federal judge ruled.
     The National Association of Criminal Defense Lawyers had used the Freedom of Information Act (FOIA) in an attempt to gain access to the Blue Book, an Office of Legal Education publication, on Dec. 20, 2012.
     Asserting that contains only statements of agency policy and general, as well as neutral guidelines regarding disclosure obligations that prosecutors face, the group noted that the manual “comprehensively covers the law, policy, and practice of prosecutors’ disclosure obligations.”
     But the Department of Justice denied the request since the Blue Book “was created exclusively for federal prosecutors to provide them advice and guidance regarding discovery-related issues that arise in criminal investigation and prosecutions.”
     Though the department initially cited FOIA exemptions 5 and 7(E) in denying the request, the Office of Information Policy later cited only Exemption 5’s protection of attorney work product.
     A federal complaint that the defense lawyers filed this year against the Department of Justice and the Executive Office for U.S. Attorneys failed at summary judgment on Thursday.
     “Plaintiff believes the Blue Book is not protected by the attorney work-product privilege because it simply conveys ‘general agency policy’ divorced from potential litigation,” U.S. District Judge Colleen Kollar-Kotelly in Washington, D.C., wrote. “Having conducted an in camera review of the book, the court respectfully disagrees with plaintiff’s analysis and finds that the Blue Book was prepared by attorneys ‘in anticipation of litigation’ as defined by courts in this circuit. The Blue Book is a ‘litigation manual’ available only to DOJ personnel that ‘advise[s] federal prosecutors on the legal sources of their discovery obligations as well as the types of discovery related claims and issues that they would confront in criminal investigations and prosecutions.'”
     Finding that the document should be classified as one “prepared in anticipation of foreseeable litigation against the agency, Kollar-Kotelly said the Blue Book is unlikely to qualify as “the category of documents related to active investigations of potential wrongdoing that require specific claims.”
     Though the plaintiffs had emphasized that the book was not prepared in anticipation of a particular trial, Kollar-Kotelly said it “directly relates to conduct in the adversary trial process since it provides guidelines and strategies for government prosecutors to consider in disclosing discovery and litigating against challenges to their discovery practices.”
     “The Blue Book is entirely focused on a bedrock transaction in the adversarial trial process – discovery,” she concluded.
     Her ruling conflicts with the recent order by U.S. District Judge Ancer Haggerty in Portland, Ore., for the government to produce the Blue Book based on his finding that it was not prepared in anticipation of litigation.
     “Judge Haggerty did not evaluate whether the Blue Book was a privileged attorney work-product because it was prepared to ‘protect [ ] agency clients from the possibility of future litigation’-the operative category here,” Kollar-Kotelly wrote. “Accordingly, the court is not persuaded by the reasoning in the District of Oregon decision.”

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