Duane Morris Class Action Review - 2023 - Report - Page 170
the Sherman Act, 15 U.S.C. § 1; (ii) conspiring to commit multiple offenses against the
United States in violation of 18 U.S.C. § 371; and (iii) obstructing proceedings before
the Federal Trade Commission in violation of 18 U.S.C. § 1505. Id. at *1-2. Pursuant to
28 C.F.R. § 16.23 and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951),
counsel for one defendant requested trial testimony from four current or former
employees of DOJ, including Antitrust Division attorneys and an FBI agent. The DOJ
moved to quash. The court granted the motion to quash. In determining whether the
subpoenas should be quashed based on the DOJ’s assertions of privileges, the court
opined it must determine whether a privilege applies to the testimony sought. The DOJ
argued that two privileges applied, including the deliberative process privilege, and the
work product privilege. First, the court held that any factual information that would be
elicited from the testimony would be so intertwined with the Government witnesses’
analysis and evaluation of facts that it could not be revealed separately, and therefore,
the deliberative process privilege protected the DOJ witnesses’ testimony. Second, the
court held that the testimony sought would reveal the DOJ witnesses’ analysis of the
case at hand, including the DOJ attorneys’ mental impressions, and therefore the
attorney work product privilege applied. Id. at *21-24. Accordingly, the court granted the
DOJ’s motion to quash.
The DOJ also litigated civil rights lawsuits against New Orleans and Baltimore that
resulted in key rulings in 2022. The cases manifest how the DOJ acts aggressively to
litigate constitutional and statutory claims in agreed upon consent decrees.
In United States v. City Of New Orleans, 2022 U.S. Dist. LEXIS 173009 (E.D. La. Sept.
28, 2022) the DOJ alleged that the City of New Orleans, Louisiana’s police department
engaged in a pattern or practice that subjected individuals to excessive force in violation
of the Fourth Amendment, unlawful searches and seizures in violation of the Fourth
Amendment, and discriminatory policing practices in violation of the Fourteenth
Amendment, the Safe Streets Act, and Title VI. On August 18, 2022, the City of New
Orleans (the City) filed a motion to terminate an earlier consent decree that it agreed to
in 2012. Thereafter, the State of Louisiana, Office of the Attorney General (“AG”) filed a
motion for leave to file an amicus brief in support of the City of New Orleans’ motion to
terminate the consent decree. The court denied the AG’s Motion. First, the court
explained no federal rule exists governing the procedural or substantive requirements
for district court amicus curiae briefs. Id. at *2-3. The court also rejected the AG’s
argument that it had an interest in the outcome of the pending motion to terminate the
consent decree. It held that the AG did not carry its burden of demonstrating an interest
significant enough in matters of local concern. Further, the court found that the
proposed amicus brief was not useful or helpful since it merely reiterated the same
arguments for terminating the consent decree that the City raised in its motion. In
addition, the court opined that the DOJ and the City were both represented by
experienced attorneys, and this factor weighed against granting leave. Finally, the court
found that proposed brief’s purpose was to assist the movant, and therefore, it was not
designed to assist the court. Accordingly, the court denied the AG’s motion.
In United States v. Police Department Of The City Of Baltimore, 2022 U.S. Dist. LEXIS
90730 (D. Md. May 19, 2022), the DOJ filed a complaint against the Police Department
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Duane Morris Class Action Review – 2023
