Federal Election Commission v. Rivera

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 17-22643-CIV-COOKE/GOODMAN

FEDERAL ELECTION COMMISSION,

Plaintiff,

v.

DAVID RIVERA,

Defendant.

__________________________________/

ORDER ON FEC’S PRIVILEGE AND WORK PRODUCT CLAIMS

Following a discovery hearing and supplemental briefing, this Order resolves a

discovery tussle about two interview reports over which Plaintiff Federal Election

Commission (“FEC”) has asserted the law enforcement investigatory privilege and the

work product doctrine. The Undersigned has reviewed in camera the reports of

investigation, which were filed under seal [ECF No. 115], and I also reviewed a

declaration filed by the FEC’s Acting General Counsel [ECF No. 117-1] and memoranda

of law filed by the FEC and Defendant David Rivera (“Rivera”) [ECF Nos. 118-119].

For the reasons outlined in greater detail below, I have determined that the two

reports are both privileged and encompassed by the work product doctrine. Rivera is not

entitled to those two reports in discovery in this case. But, as explained below, the FEC’s

position is on more-sturdy legal ground for the work product assertion than for the law

enforcement investigatory privilege, which was established on less-than-overwhelming

grounds.

I. Factual Background

The FEC is an independent agency of the United States government with exclusive

jurisdiction over the administration, interpretation, and civil enforcement of the Federal

Election Campaign Act, 52 U.S.C. § 30101-46 (“FECA” or “Act”). See generally 52 U.S.C.

§§ 30106(b)(1), 30107(a), 30109. Congress authorized the FEC to “formulate policy” under

FECA (see, e.g., 52 U.S.C. § 30106(b)(1)), and to make rules and issue advisory opinions.

52 U.S.C. §§ 30107(a)(7), (8); id. at §§ 30108; 30111(a)(8); see also Buckley v. Valeo, 424 U.S.

1, 110-11 (1976). The FEC is also authorized to institute investigations of possible

violations of the Act, 52 U.S.C. § 30109(a)(1)-(2), and the agency has exclusive jurisdiction

to initiate civil enforcement actions in the United States district courts. Id. at §§

30106(b)(1), 30107(a)(6), 30107(e), 30109(a)(6); see also ECF No. 117-1, ¶ 2 (Decl. of Lisa J.

Stevenson).

In its Amended Complaint in this matter [ECF No. 41], the FEC alleged that Rivera

secretly provided more than $55,000 of in-kind contributions to the 2012 primary election

campaign of Justin Lamar Sternad in Florida’s 26th Congressional District, in violation of

FECA’s prohibition on contributions in the name of another. Rivera directed an associate,

Ana Sol Alliegro, to approach Sternad with the offer to help fund his campaign, to which

Sternad agreed. Rivera then delivered cash to vendors providing services to the

committee or arranged for cash he controlled to be delivered to vendors providing

services to the campaign. Rivera concealed these in-kind contributions by paying vendors

in cash to produce and distribute materials for Sternad’s campaign. Sternad’s disclosure

reports failed to disclose the true source of the contributions, instead falsely stating that

the contributions were loans from Sternad’s personal funds. Rivera took measures to

conceal his involvement and the source of the contributions.

In April 2013, the FEC notified Rivera that it had received information indicating

that he may have violated the FECA. [See ECF No. 41, ¶ 26]. On September 10, 2013,

the FEC voted 5-0 to find reason to believe that Rivera had knowingly and willfully

violated 52 U.S.C. § 30122. Id. at ¶ 27. It then initiated an investigation, which included

the completion of Reports of Investigation (“ROIs”) by FEC attorneys and

investigators.

The ROIs contain summaries of witness interviews. [See ECF No. 117-1, ¶ 5]. The

two at issue here are, in fact, summaries of interviews.

It is standard practice for investigators to consult with an attorney assigned to

the case in advance of interviews the investigators conduct. Id. This consultation begins

with the selection of the individual witnesses to interview, and continues with the

topics to cover, including some of the necessary questions to ask. After the conclusion

of an interview by an investigator, an additional discussion with the attorney ordinarily

takes place. During those additional discussions, the FEC attorney assists in

summarizing and evaluating the material for inclusion in the ROI, including whether a

follow-up interview is necessary. Id.

According to Ms. Stevenson’s declaration, the ROIs are privileged and as a

matter of policy are not generally released to the witness or to the public. Id. at ¶ 6.

The FEC releases various other documents that are integral to its resolution at the

conclusion of a matter, but not ROIs. Id.; see also Statement of Policy Regarding

Disclosure of Certain Documents in Enforcement Matters, 81 Fed. Reg. 5073 (Aug. 2,

2016).

For the ROIs at issue, FEC Investigator Anne Spivey prepared for the interviews

and the drafting of ROIs consistent with these ordinary practices. [ECF No. 117-1, ¶ 8].

Her interviews included two of the vendors who Rivera paid for services they provided

to the Sternad campaign, John Borrero and Hugh Cochran, both on March 8, 2017. Id.

Before the interviews, Ms. Spivey consulted with an attorney about topics to cover

and questions to ask. Id. An FEC attorney assisted in evaluating which material would be

included in the report for each interview and in how to summarize the material. Id.

The ROIs were completed on the same day as each interview. Id. Both interviews

were then referenced in the General Counsel’s Brief that advises the FEC Commissioners

about the legal and factual issues in the case, including whether there is probable cause

to believe that violations occurred. Id.; see also 52 U.S.C. ¶ 30109(a)(3).

The ROIs were made available for consideration by Commissioners as they voted

on whether there was probable cause to believe violations occurred and whether to

institute this civil action. [ECF No. 117-1, ¶ 8]. The Commission unanimously concluded

that there was probable cause to believe that Rivera knowingly and willfully violated 52

U.S.C. § 30122 and 11 C.F.R. § 110.4(b). [ECF No. 41, ¶ 30].

In his request for production of documents, Rivera sought documents responsive

to 37 distinct categories. In response, in three sets of rolling productions to Rivera on

August 9, 2019, September 6, 2019, and September 20, 2019, the FEC produced

approximately 1,300 pages of documents, including more than 100 pages of records from

the FEC’s administrative process.

The FEC also provided a privilege log with its September 6th production. The log

noted the withholding of the ROIs of Borrero (two pages) and Cochran (one page). At the

same time, the FEC produced seven pages of attachments to the Cochran ROI, including

a typed statement prepared by Cochran, a copy of an email from Cochran to Rivera, and

a data file that Cochran had provided to the FEC. See FEC1193-1199. The FEC also

produced an April 14, 2017 declaration signed by Cochran. FEC0395. Rivera subsequently

took Borrero’s deposition.

On May 12, 2020, the Undersigned held a discovery hearing about Rivera’s efforts

to obtain the two ROIs and later issued a post-hearing Order requiring memoranda on

designated issues. [ECF Nos. 112; 113]. Specifically, the Order directed the parties to

address the following issues: (1) whether the law enforcement investigatory privilege

applies to the FEC; (2) whether other courts have ruled on the FEC’s assertions of the law

enforcement investigatory privilege; (3) whether there is any type of distinction in the

law between a plaintiff asserting a work product protection claim and a defendant

asserting a work product protection claim; (4) whether a plaintiff is able to successfully

assert a work product protection claim when the documents at issue are part of an

assessment of whether to file a lawsuit; (5) what significance, if any, should attach to the

fact that the statute of limitations for both a criminal prosecution and a civil lawsuit have

now expired; (6) and any other issues concerning the FEC’s assertion of the law

enforcement investigatory privilege and the work product doctrine over the two reports.1

[ECF No. 113].

II. Applicable Legal Principles and Analysis

A. Work Product

Work product constitutes: (1) any document that is (2) prepared in anticipation of

litigation, including administrative proceedings, (3) by or for a party, or by or for that

party’s representative. See Fed. R. Civ. P. 26(b)(3). The Supreme Court has articulated that

1 The Undersigned instructed the parties to discuss topics 3, 4 and 5 because Rivera

took the position that (1) there is a legal distinction between a plaintiff-asserted work

product claim and one lodged by a defendant, (2) a work product assertion is unavailable

or of diminished capacity when it concerns a document discussing the issue of whether to

file a lawsuit, and (3) the law enforcement privilege cannot succeed after expiration of the

statute of limitations for criminal charges.

the purpose of work product protection is to immunize the work product of the attorney

or his agents from discovery, so that they can analyze and prepare their client’s case for

litigation. See United States v. Nobles, 422 U.S. 225, 238-39 (1975); see also Upjohn Co. v.

United States, 449 U.S. 383, 397-98 (1981); Hickman v. Taylor, 329 U.S. 495, 509-10 (1947).

The work product privilege protects the materials of both plaintiffs and

defendants. The doctrine applies equally to documents withheld by either type of party,

in open or closed matters. See MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D.

550, 619 (S.D. Fla. 2013) (internal citation omitted) (emphasis added) (“The work-product

doctrine protects materials if they were prepared for any litigation (even litigation which

has terminated) as long as such materials were prepared for a party to the litigation in which

the protection is being asserted.”). Indeed, Rule 26 makes no distinction between which

party can assert the doctrine. See Fed. R. Civ. P. 26(b)(3) (using the terms “party” or

“party’s representative” in outlining the doctrine).

Rivera has not submitted any materials to support his stated view that work

product protects only defense materials but somehow does not encompass materials

prepared by a plaintiff when analyzing whether to file a lawsuit. He has apparently

dropped that argument, as his post-hearing memorandum [ECF No. 419] makes no

mention of it.

The two ROIs at issue here were surely prepared in anticipation of the litigation

which the FEC filed against Rivera.

FEC’s enforcement process is a statutorily mandated administrative process that

expressly includes paths to litigation by or against the Commission. See 52 U.S.C. § 30109.

The Act expressly authorizes the Commission to conduct an investigation, exercise its

enforcement authority and file suit against a respondent to civilly enforce the Act in the

event informal conciliation efforts fail. Id. at (a)(6)(A).

Memoranda or summaries of witness interviews prepared by an investigator are

work product. See Nobles, 422 U.S. at 239; Hickman, 329 U.S. at 509-10; Upjohn, 449 U.S. at

400; see also Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386, 1421-22 (11th Cir. 1994),

opinion modified on reh’g, 30 F.3d 1347 (11th Cir. 1994); Castle v. Sangamo Weston, Inc., 744

F.2d 1464, 1466 (11th Cir. 1984) (finding that there is “no question” that the witness

statements and notes of interviews with witnesses constitute work product); see generally

Bridgewater v. Carnival Corp., 286 F.R.D. 636, 644 (S.D. Fla. 2011) (“[A] witness statement

taken by a party’s attorney or agent in anticipation of litigation is protected work

product.”).2

2 Rivera argues that “documents which consist solely of witness statements as part

of an investigation prior to litigation should not be precluded from discovery by the

opposing party.” [ECF No. 119, p. 5]. He cites only one authority in support: Lewis v.

Ameriprise Ins. Co., No. 16-00111, 2017 WL 890101, at *3 (S.D. Ala. March 6, 2017). But that

case is easily distinguishable and is not persuasive.

That case concerns an insurance claim file, which is substantively different than

materials in other types of civil lawsuits because “insurance claim files generally do not

constitute work product at early stages of investigation, when the insurance company is

primarily concerned with ‘deciding whether to resist the claim, to reimburse the insured

and seek subrogation . . . or to reimburse the insured and forget about the claim

Significantly, the ROIs at issue here are not verbatim accounts of the interviews

provided by the witnesses, nor are they statements prepared by the witnesses, signed by

the witnesses or approved by the witnesses. Rather, they are summaries prepared by the

investigator, with the help of FEC counsel. In other words, these reports are the highlights

of what an investigator and an attorney thought to be the important portions of the

interview. But even a verbatim transcript of an interview taken by an attorney or an

attorney’s agent is likely still protected by the work product doctrine when the interview

was conducted in anticipation of litigation. See, e.g., Gargao v. Metro-North, 222 F.R.D. 38,

39 (D. Conn. 2004) (finding that transcripts of audiotaped statements of employees taken

by a claims agent were protected work product material); cf. Cohen v. Gulfstream Training

Academy, Inc., 249 F.R.D. 385, 386 (S.D. Fla. 2008) (holding that witness’s notes prepared

at counsel’s direction subject to work product protection).

In the instant case, Investigator Spivey prepared for her interviews and for the

drafting of both ROIs at the direction of, and in consultation with, FEC attorneys and in

anticipation of a possible offensive enforcement lawsuit to be brought by the

Commission. [ECF No. 117-1, ¶ 8]. The topics to cover, the questions to ask, which

thereafter.’” Id. In other words, insurance claims files typically involve a far-different

work product analysis. Courts in our district regularly recognize this distinction. See

Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691 (S.D. Fla. 2007) (adopting rebuttable

presumption that documents prepared before the final decision on an insured’s claim are

not work product). The Undersigned follows this rebuttable presumption for insurance

carrier’s work product assertions. See, e.g., Gables Condo and Club Assoc. v. Empire

Indemnity Ins. Co., No. 18-23659, 2019 WL 1317824 (S.D. Fla. Mar. 22, 2019).

material should be summarized, and how to summarize it were all matters developed

as part of that attorney consultation. Id.

Therefore, the facts included in the ROIs reflect an assessment of topics and

questions asked that attorneys believed were pertinent to the Commission’s investigation

and possible litigation. Id. The ROIs were integral to the development of

recommendations made to the FEC about whether to advance the underlying matter

closer to litigation. Id. The ROIs were available to Commissioners as they voted on

whether to advance the matter towards litigation. Id.

Because the FEC’s administrative enforcement matter involving Rivera

contemplated and in fact has led to this litigation, the ROIs were prepared in anticipation

of litigation. Heggestad v. U.S. Dep’t of Justice, 182 F. Supp. 2d 1, 11 (D.D.C. 2000)

(explaining that a “prosecution memoranda . . . created as an integral part of the

[agency’s] investigation and its decision-making process with regard to whether or not

to prosecute . . . is precisely the type of information universally held to be attorney work-

product”).

Given the close involvement of FEC counsel in the preparation of the ROIs,3 the

work product doctrine is easily established. United States v. All Assets Held at Bank Julius

3 Rivera contends that he “does not seek any document which contains an attorney’s

opinion, mental impression, conclusions and/or legal theories.” [ECF No. 119, p. 5]. He

also argues that “the investigative reports sought by the defendant contain merely the

summaries of interviews conducted by the FEC investigators without any attorney notes

or impressions contained therein.” Id. But this argument is fundamentally at odds with

Baer & Co., Ltd., 169 F. Supp. 3d 54, 59 (D.D.C. 2015) (determining that work product

privilege protected a report prepared by an Internal Revenue Service agent to help

government attorneys decide whether and what charges to pursue), aff’d sub nom., United

States v. All Assets Held at Bank Julius, No. 1:04-CV-00798, 2016 WL 11609892 (D.D.C. Jan.

12, 2016); Feshbach v. Sec. & Exch. Comm’n, 5 F. Supp. 2d 774, 782-83 (N.D. Cal. 1997)

(finding that work product privilege applied to documents relating to a Securities and

Exchange Commission investigation into a broker-dealer business).

The Undersigned rejects Rivera’s suggestion4 that the work product doctrine is

somehow unavailable because the statute of limitations for both civil and criminal actions

has now expired. Fojtasek v. NCL (Bahamas) Ltd., 262 F.R.D. 650, 656 (S.D. Fla. 2009) (citing

In Re Grand Jury Subpoenas, 89-3 and 89-4, John Doe 89-129, 902 F.2d 244 (4th Cir.1990))

(finding that the fact that party “arguably cannot now be named as a defendant in this

litigation because the statute of limitations has elapsed does not lift the work product

protection veil from the [incident report]”).

Rivera has not asserted that any exceptions to the work product doctrine apply.

His memorandum does not even mention that fact work product (as opposed to attorney

the declaration of the FEC’s Acting General Counsel, who unequivocally represented that

an FEC attorney was closely involved in preparing the ROIs with the investigator. Rivera

has not submitted any evidence, let alone argument, to suggest that the declaration is

false, misleading, incomplete, or otherwise inaccurate.

4 Rivera made this argument at the hearing, but he seems to have withdrawn it. He

does not assert it in his memorandum.

work product) is subject to discovery “upon a showing that the party seeking discovery

has substantial need of the materials in preparation of the party’s case and that the party

is unable without undue hardship to obtain the substantial equivalent of the materials by

other means.” See Fed. R. Civ. P. 26(b)(3). Instead, he merely challenges the availability

of the doctrine in the first place, arguing that the FEC has not met its burden. Because the

Undersigned concludes that the FEC has met its burden of establishing that the two ROIs

are covered by the work product doctrine, no further analysis is needed.

Nevertheless, in an abundance of caution, the Undersigned will also address the

FEC’s claim of law enforcement privilege (in case Rivera appeals this ruling and seeks a

different result from United States District Judge Marcia G. Cooke and Judge Cooke were

to agree with him).

B. Law Enforcement Investigatory Privilege

The qualified law enforcement investigatory privilege protects from disclosure

files and reports of criminal and civil law enforcement investigations. See, e.g., United

States v. Van Horn, 789 F.2d 1492, 1507 (11th Cir. 1986) (applying privilege to the nature

and location of electronic surveillance equipment); JTR Enterprises, LLC v. An Unknown

Quantity of Colombian Emeralds, Amethysts, and Quartz Crystals, 297 F.R.D. 522, 529 (S.D.

Fla. 2013); accord In re The City of New York, 607 F.3d 923 (2d Cir. 2010) (granting petition

for a writ of mandamus and vacating order requiring disclosure of undercover police

reports in civil rights lawsuit filed by protestors arrested during a political convention);

Application of Eisenberg, 654 F.2d 1107 (5th Cir. 1981) (affirming order concluding that a

petitioner’s civil discovery request was a disguised attempt to obtain criminal discovery

otherwise unavailable to him)5; Black v. Sheraton Corp. of Am., 564 F.2d 531 (D.C. Cir. 1977)

(vacating judgment in civil lawsuit because trial court should have conducted an in

camera review of documents the Government claimed were privileged); see generally In re

U.S. Dep't of Homeland Security, 459 F.3d 565, 569-70 (5th Cir. 2006) (holding district court

erred in refusing to recognize law enforcement privilege -- which protects “investigative

files in an ongoing criminal investigation” and which extends “beyond that allowed for

identities of confidential informants” -- when determining whether the government

would have to disclose documents which arguably were part of ongoing investigations).

The purpose of the privilege “is to prevent disclosure of law enforcement

techniques and procedures, to preserve the confidentiality of sources, to protect

witnesses and law enforcement personnel, to safeguard the privacy of individuals

involved in an investigation, and otherwise prevent interference in an investigation.”

JTR Enterprises, 297 F.R.D. at 529 (internal quotation marks and citation omitted)

(emphasis added); White v. City of Fort Lauderdale, No. 08-60771-CIV, 2009 WL 1298353, at

5 The former Fifth Circuit Court of Appeals issued Eisenberg on September 4, 1981.

In Bonner v. City of Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981), our appellate court held

that all Fifth Circuit opinions existing as of September 30, 1981 would be binding

precedent on all federal courts within the Eleventh Circuit.

*3 (S.D. Fla. May 8, 2009) (recognizing that the law enforcement privilege is applicable to

“protect investigatory files” from disclosure).

The qualified law enforcement investigatory privilege applies to the FEC, an

investigatory agency. See United States v. Lundergan, No. 5:18-cr-00106-GFVT, 2019 WL

4065604, at *3 (E.D. Ky. Aug. 28, 2019) (explaining that “the FEC is the administrative

agency tasked with enforcing the Federal Election Campaign Act” and “because the FEC

is the enforcement agency [certain documents are] subject to the law enforcement

privilege”).

The privilege has periodically been invoked in civil litigation when parties have

sought internal FEC enforcement materials like the ROIs at issue here, and courts have

found that it applies. Id. (holding that an FEC manual “is precisely the type of document

intended to be shielded by the law-enforcement privilege”); Beam v. Mukasey, No. 07-1227,

ECF No. 141 (N.D. Ill. July 7, 2009) (“sustain[ing] the FEC’s ‘attorney work product’ and

‘law enforcement privilege’ objection to production of the documents” in civil lawsuit).

In determining whether the qualified law enforcement privilege protects against

disclosure or whether it must give way, courts weigh the following ten factors:

(1) the extent to which disclosure will thwart governmental processes by

discouraging citizens from giving the government information; (2) the

impact upon persons who have given information of having their identities

disclosed; (3) the degree to which governmental self-evaluation and

consequent program improvement will be chilled by disclosure; (4)

whether the information sought is factual data or evaluative summary; (5)

whether the party seeking discovery is an actual or potential defendant in

any actual criminal proceeding either pending or reasonably likely to

follow from the incident in question; (6) whether the police investigation

has been completed; (7) whether any interdepartmental disciplinary

proceedings have arisen or may arise from the investigation; (8) whether

the plaintiff’s suit is non-frivolous and brought in good faith; (9) whether

the information sought is available through other discovery or from other

sources; and (10) the importance of the information sought to the [litigant’s]

case.

Kahn v. United States, No. 13-24366-CV, 2015 WL 3644628, at *2 (S.D. Fla. June 10, 2015)

(quoting Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973)); accord In re United States

Dep’t of Homeland Security, 459 F.3d at 571; Tuite v. Henry, 98 F.3d 1411, 1417 (D.C. Cir.

1996).

These factors weigh (but only slightly) in favor of sustaining the FEC’s law

enforcement privilege claim in this civil enforcement action.6 There are no concerns about

the privacy of the two individuals. Rivera has already taken the deposition of one and is

in possession of documents concerning the other.

Many of the concerns typically underlying law enforcement privilege claims are

inapplicable here. There is no confidential informant whose identity must be protected.

There are no confidential law enforcement strategies which would be revealed if Rivera

had access to the ROIs. The “technique” involved here -- interviewing fact witnesses and

writing a report summarizing what the witness said -- is hardly confidential (and is not

6 The parties have not called my attention to any legal authority which establishes

rules or suggests guidelines on how to evaluate the ten factors, whether any factor or

factors is more important than others or how many factors must lean one way in order to

support a decision.

unique to law enforcement, in any event). This is a civil enforcement proceeding, not a

criminal investigation or prosecution, and the investigation has been completed.

On the other hand, disclosure of ROIs would reveal the judgments made by

investigators and FEC lawyers about which questions to ask and which witness

statements merited inclusion in the ROIs in this ongoing matter. [ECF No. 117-1, ¶ 8]. In

addition, disclosure would also discourage future witnesses from providing full and

candid statements during FEC investigations. Id. Further, court-ordered disclosure of

ROIs will chill FEC attorneys and investigators from creating witness interview

summaries in future matters. Id.

According to the FEC, if ROIs were ordered disclosed in the course of litigation

following the administrative matter in which it had been created, as has been sought in

this case, then attorneys and investigators will be required to record and summarize

interviews as if prepared for final presentation to a court, rather than as an internal

working file. Id. Likewise, the FEC contends that attorneys and investigators would also

be chilled from discussing in ROIs confidential investigative techniques that the FEC

employs. Id. Moreover, as explained above, the information Rivera seeks is directly

available from the witnesses themselves.7

7 Rivera has already taken Mr. Borrero’s deposition and had the opportunity to

question him on his recollection of the facts. Furthermore, Rivera has the typed statement

of Hugh Cochran that Cochran provided contemporaneous to the investigator preparing

the ROI, and an affidavit Cochran signed during the administrative process in 2017. And

he has not explained why he could not take Cochran’s deposition.

Generally, courts “balance the interests of the litigant seeking the information

against the government’s interest in nondisclosure.” Sirmans v. City of South Miami, 86

F.R.D. 492, 495 (S.D. Fla. 1980); see also Van Horn, 789 F.2d at 1508 (“The privilege will give

way if the defendant can show need for the information.”); JTR Enterprises, 297 F.R.D. at

529 (explaining that courts “balance the government’s interest in confidentiality against

the litigant’s need for information”).

Courts have concluded that “‘there ought to be a pretty strong presumption

against lifting that privilege.’” F.T.C. v. Timeshare Mega Media & Mktg. Grp., Inc., No. 10-

62000-CIV, 2011 WL 6102676, at *5 (S.D. Fla. Dec. 7, 2011) (emphasis added) (quoting

Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1125 (7th Cir. 1997)); In re Polypropylene

Carpet Antitrust Litig., 181 F.R.D. 680, 688 (N.D. Ga. 1998) (same). Here, since both of these

witnesses are available to Rivera, there is no need for production of the investigative

summaries authored by the FEC.

Rivera’s failure to show a need for these summaries is, for all practical purposes,

fatal to his request because “[m]ere conjecture about the possible relevance” is insufficient

to compel disclosure. See United States v. Gutierrez, 931 F.2d 1482, 1491 (11th Cir. 1991). It

is this factor which the Undersigned deems most significant when evaluating Rivera’s

argument that the law enforcement investigatory privilege should not be upheld here.

Finally, Rivera’s statute of limitations argument is unconvincing. The instant

lawsuit is an ongoing enforcement action by the FEC, and the privilege extends to open

and closed investigations. See, e.g., United States v. Bennett, No. 6:16-CR-256-Orl-41TBS,

2017 WL 11491960, at *2 (M.D. Fla. Oct. 30, 2017) (“An investigation,’ however, ‘need not

be ongoing for the law enforcement privilege to apply. . . .”) (quoting In re Dep’t of

Investigation of City of New York, 856 F.2d at 484).°

Ill. Conclusion

The FEC has met its burden to demonstrate that the two ROIs are work product

protected. It has also, although barely, established that the limited law enforcement

investigatory privilege applies. Given that the work product doctrine clearly applies, the

fuzzy and less-than-completely-solid basis of the law enforcement privilege here is not

problematic and does not jeopardize the final conclusion (i.e., that the FEC need not

produce the two reports to Rivera).

DONE AND ORDERED in Chambers, in Miami, Florida, on June 8, 2020.

it Jy : ee =

Ly Goodman

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

The Honorable Marcia G. Cooke

All counsel of record

8 The Bennett Court held that an investigation need not be ongoing for the law

enforcement privilege to apply as “the ability of a law enforcement agency to conduct

future investigations may be seriously impaired if certain information is revealed to the

public.” Id. (quoting City of New York, 856 F.2d at 484).

18