State of Georgia v. DOJ

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 4, 2024 Decided August 12, 2025

No. 23-5083

STATE OF GEORGIA AND BRAD RAFFENSPERGER, GEORGIA

SECRETARY OF STATE, IN HIS OFFICIAL CAPACITY,

APPELLEES

v.

UNITED STATES DEPARTMENT OF JUSTICE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-03138)

Jeffrey E. Sandberg, Attorney, U.S. Department of Justice,

argued the cause for appellant. With him on the supplemental

briefs were Brian M. Boynton, Principal Deputy Assistant

Attorney General, Sarah E. Harrington, Deputy Assistant

Attorney General, and Mark B. Stern, Attorney.

Anuja D. Thatte argued the cause for amici curiae NAACP

Legal Defense & Educational Fund, Inc. in support of

appellant. With her on the brief were Jon M. Greenbaum, Ezra

D. Rosenberg, Pooja Chaudhuri, Janai S. Nelson, Samuel

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Spital, Leah C. Aden, Katrina Feldkamp, and Bradley E.

Heard.

Gene C. Schaerr argued the cause for appellees. With him

on the supplemental brief were Christopher M. Carr, Attorney

General, Office of the Attorney General for the State of

Georgia, Stephen J. Petrany, Solicitor General, Erik S. Jaffe,

Brian J. Field, Andrew Strain, and Bryan P. Tyson.

Before: SRINIVASAN, Chief Judge, GARCIA, Circuit Judge,

and ROGERS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge SRINIVASAN.

SRINIVASAN, Chief Judge: The Freedom of Information

Act generally requires the government to disclose requested

agency records unless a statutory exemption applies. This case

involves FOIA’s Exemption 5, which allows withholding

“inter-agency or intra-agency memorandums or letters that

would not be available by law to a party . . . in litigation with

the agency.” 5 U.S.C. § 552(b)(5).

As its terms make evident, Exemption 5 assures that the

government need not disclose records under FOIA that would

be privileged from discovery in litigation—including, of

particular salience, materials protected by the attorney work-

product privilege. If not for that exemption, a party opposed to

the government in litigation would be barred from obtaining

the government’s privileged attorney work product through

discovery but could still gain access simply by filing a FOIA

request. Exemption 5 prevents FOIA from forcing the

government to bear that kind of asymmetric disadvantage in

litigation: where opposing counsel would have access to the

government’s litigation strategy notwithstanding the work-

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product privilege but the government would have no parallel

ability to overcome the privilege in the reverse direction.

The issue in this case is whether that type of imbalance

nonetheless arises whenever the government coordinates with

other parties aligned on the same side of a case. For purposes

of the work-product privilege, the government—like any

party—can communicate and share protected materials with

aligned parties without waiving the privilege. That is

especially so when the parties enter into a so-called “common-

interest” agreement designed to enable coordination and

exchanging of documents within the fold of the privilege. But

what about for purposes of FOIA? Does the government’s

sharing of attorney work product with aligned parties mean that

Exemption 5 no longer protects those privileged

communications from disclosure to the opposing side under

FOIA?

Georgia argues in this case that the answer is yes. Georgia

is a defendant in a number of consolidated lawsuits challenging

a state election law. The plaintiffs in the cases include the

federal government and several aligned parties. Those parties

entered into a common-interest agreement to protect their

ability to communicate about the cases under the umbrella of

the attorney work-product privilege. Georgia filed a FOIA

request seeking disclosure of all communications between the

federal government and aligned parties in the cases, regardless

of whether the materials would be protected from discovery in

the ongoing litigation under the work-product privilege.

According to Georgia’s argument, it does not matter if the

materials it seeks are “memorandums or letters that would not

be available by law to [it] in litigation with the agency” within

the meaning of Exemption 5. Georgia emphasizes that the

exemption speaks in terms of “intra-agency memorandums and

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letters”; and to Georgia, because the communications it seeks

were shared between the government and aligned non-

government parties, the materials are not “intra-agency”

records. The result, in Georgia’s view, is that it can obtain the

opposing side’s privileged work product in the cases even if the

opposing side cannot obtain Georgia’s.

We disagree that FOIA requires that anomalous result.

Several of our precedents establish—and the Supreme Court

has assumed—that agency records can qualify as “intra-

agency” materials under Exemption 5 in certain conditions

even if exchanged with outsiders. In that situation, the

outsiders are treated as coming within the hem of the agency

for the purpose of insulating their shared communications from

disclosure pursuant to Exemption 5.

That understanding makes particular sense in the context

of work-product materials shared among aligned parties under

a common-interest agreement grounded in a mutual

expectation of confidentiality. An animating purpose of

Exemption 5 is to prevent parties opposed to the government

in litigation from using FOIA as a workaround to obtain

privileged materials they could not access in the lawsuit. Those

concerns are pronounced when the sought-after records would

disclose the government’s strategy and impressions about an

ongoing case, resulting in precisely the kind of unbalanced

playing field for the government that Exemption 5 aims to

forestall.

We hold that when the government exchanges attorney

work product with aligned parties under a common-interest

agreement rooted in shared interests and a need for

confidentiality, the shared work product qualifies as “intra-

agency” material under Exemption 5. Our conclusion accords

with the only other court of appeals’ decision to consider the

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issue. See Hunton & Williams v. U.S. Dep’t of Just., 590 F.3d

272 (4th Cir. 2010). Because the district court here reached the

opposite conclusion, we reverse its decision in principal part.

I.

A.

Shortly after the 2020 elections, Georgia enacted the

Election Integrity Act, known in the state as SB 202. See 2021

Ga. Laws Act 9. While Georgia touted SB 202 as a much-

needed update to election procedures, various organizations

thought otherwise. From their perspective, the legislation

targeted “every aspect of the voting process . . . to make

absentee, early, and election-day voting more difficult.”

Compl. ¶ 4, The New Ga. Project v. Raffensperger, No. 21-cv-

1229 (N.D. Ga. Mar. 25, 2021), Dkt. No. 1.

Seven organizations separately filed suit in the Northern

District of Georgia to challenge various provisions of SB 202.

See Georgia v. U.S. Dep’t of Just., 657 F. Supp. 3d 1, 6 n.1

(D.D.C. 2023). While each of the seven lawsuits seeks to

invalidate SB 202 as violating voters’ rights under federal law,

they raise varying claims. Five organizations raise claims of

race discrimination under Section 2 of the Voting Rights Act

(VRA) along with separate claims under the Constitution, the

Americans with Disabilities Act, and the Rehabilitation Act.

The remaining two suits raise non-race-based statutory and

constitutional claims.

Shortly after the private organizations filed their seven

suits, the United States Department of Justice (DOJ) initiated

its own challenge to SB 202 in the same court. See Compl.,

United States v. Georgia, No. 21-cv-2575 (N.D. Ga. June 25,

2021), Dkt. No. 1. DOJ brought a race-discrimination claim

under Section 2 of the VRA “to enforce the voting rights

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guaranteed by the Fourteenth and Fifteenth Amendments to the

United States Constitution.” Id. ¶ 3. DOJ’s suit, along with the

other seven challenges, were assigned to the same judge.

DOJ soon began communicating with the other plaintiffs

challenging SB 202 in the same court. The parties’ mutual

engagement is standard practice in complex civil litigation

when parties with aligned interests coordinate for efficiency

and simplicity—often with the court’s encouragement or at its

direction. See Manual for Complex Litigation (Fourth)

§§ 10.22–10.221 (2004).

On July 28, 2021, DOJ and six of the seven plaintiff

organizations—including all five organizations raising claims

of race discrimination—formalized their entry into a common-

interest agreement for sharing communications about the

litigation. The agreement stated that DOJ and the other

plaintiffs “share[d] a common interest in the successful

prosecution of this litigation” and provided that they “may

share (but are not required to share) privileged communications

and other litigation material between and among them without

waiving the attorney-client privilege, the work product

protection or any other privilege or protection.” J.A. 157.

Though seven parties (including DOJ) joined the agreement,

only the six parties litigating race-discrimination claims shared

information after the agreement’s memorialization. The shared

materials were prepared by attorneys and included “documents

discussing legal strategy, potential witnesses, types of

discovery needed, [and] division of labor in a case that would

likely be consolidated.” Decl. of John A. Russ, IV (Russ Decl.)

¶ 28 (J.A. 29).

The decision to form a common-interest agreement proved

prescient. The district court administratively consolidated the

six cases raising race-discrimination claims. See Order, In re

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Ga. Senate Bill 202, No. 21-mi-55555 (N.D. Ga. Dec. 23,

2021), Dkt. No. 1. The court explained that the cases involved

“virtually identical defendants and mostly the same facts and

legal issues,” including “race discrimination, undue burden on

the right to vote and abridgment of free speech, expression[,]

and association.” Id. at 5, 7. In accordance with the court’s

discovery orders, the consolidated plaintiffs (including DOJ)

submitted a joint discovery plan and coordinated on complying

with the court’s overall caps on the discovery—e.g., the

number of total depositions—they could collectively conduct.

B.

In August 2021, roughly one month after DOJ and other

organizations formalized their common-interest agreement for

sharing privileged communications, Georgia submitted a FOIA

request to DOJ. See State of Georgia FOIA Request (Aug. 31,

2021) (J.A. 14–19). The FOIA request ostensibly stemmed

from Georgia’s suspicion that DOJ was involved in

coordinating suits against SB 202 resting on allegedly false

claims of discrimination. Georgia’s FOIA request sought all

“DOJ communications with various non-governmental entities

that are involved in the legal challenges to [SB 202]” within a

date range beginning on November 3, 2020—before the

commencement of the litigation—and ending with the date of

the search. Id. at 2 (J.A. 15).

In December 2021, Georgia brought this suit in the district

court to enforce its FOIA request. See Compl., Georgia v. U.S.

Dep’t of Just., No. 21-cv-3138 (D.D.C. Dec. 1, 2021), Dkt. No.

1; see also 5 U.S.C. § 552(a)(4)(B) (granting jurisdiction in the

District of Columbia for FOIA suits). In response, DOJ

produced nearly one thousand pages of materials. DOJ also

withheld six documents and redacted portions of 52 others.

The withheld documents included communications from July

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to September 2021—all after DOJ joined the litigation—

exchanged between DOJ and other plaintiffs who were parties

to the common-interest agreement.

In support of its withholdings and redactions, DOJ relied

on FOIA’s Exemption 5, which shields from disclosure inter-

or intra-agency materials “that would not be available by law

to a party other than an agency in litigation with the agency.”

5 U.S.C. § 552(b)(5). DOJ explained that the “material

withheld in this case comprises attorney work-product

privileged materials exchanged within the Common Interest

Group.” Russ Decl. ¶ 28 (J.A. 29). Georgia countered that (a)

the withheld materials are not “intra-agency” records under

Exemption 5 because they had been exchanged with non-

government parties, and (b) DOJ had waived any claim to the

work-product privilege by sharing information with third

parties without adequately demonstrating a common interest.

The district court granted summary judgment in Georgia’s

favor on both grounds. The court first rejected DOJ’s argument

that the common-interest doctrine rendered materials

exchanged with non-government litigants “intra-agency”

records for purposes of Exemption 5. The court further

determined that the work-product privilege in any event had

been waived by the sharing of communications with other

parties.

II.

DOJ appeals both aspects of the district court’s ruling,

contending that (a) its communications with aligned non-

government parties under a common-interest agreement

qualify as “intra-agency” exchanges for purposes of Exemption

5, and (b) it did not waive the attorney work-product privilege

by sharing materials within the rubric of a common-interest

arrangement. We agree with DOJ on both scores. Reviewing

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the matter de novo, see Jud. Watch, Inc. v. Dep’t of Just., 432

F.3d 366, 369 (D.C. Cir. 2005), we hold that privileged

attorney work product exchanged with aligned parties under a

common-interest arrangement can be withheld from FOIA

disclosure pursuant to Exemption 5.

A.

Congress enacted FOIA “to pierce the veil of

administrative secrecy and to open agency action to the light of

public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352,

361 (1976) (internal quotation marks and citation omitted). At

the same time, Congress recognized that “public disclosure is

not always in the public interest,” Baldrige v. Shapiro, 455 U.S.

345, 352 (1982), and “it is necessary to protect certain equally

important rights of privacy with respect to certain information

in Government files,” S. Rep. No. 89-813, at 3 (1965).

Congress balanced those competing considerations by

excluding certain materials from FOIA’s disclosure mandate

pursuant to nine enumerated exemptions. See 5 U.S.C.

§ 552(b)(1)–(9). The FOIA exemption at the center of this case

is Exemption 5. Under that exemption, agencies need not

disclose “inter-agency or intra-agency memorandums or letters

that would not be available by law to a party . . . in litigation

with the agency.” Id. § 552(b)(5). The exemption

“incorporates the privileges available to Government agencies

in civil litigation,” U.S. Fish & Wildlife Serv. v. Sierra Club,

592 U.S. 261, 267 (2021), and “exempt[s] those documents

[that are] normally privileged in the civil discovery context,”

NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).

While Exemption 5 encompasses the range of privileges

the government can assert in civil litigation, it is “clear that

Congress had the attorney’s work-product privilege

specifically in mind when it adopted Exemption 5.” Id. at 154.

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The work-product privilege “exist[s] to . . . promote the

adversary system by safeguarding the fruits of an attorney’s

trial preparations from the discovery attempts of the opponent.”

United States v. A.T.&T. Co., 642 F.2d 1285, 1299 (D.C. Cir.

1980) (emphasis omitted); see generally Hickman v. Taylor,

329 U.S. 495 (1947). Exemption 5 secures FOIA’s adherence

to that essential guarantee of fairness in the adversary system

in suits involving the government: the exemption enables the

government to litigate without fear that its opponent can gain

access to its attorney work product—and thereby nullify the

privilege—through the mechanism of a FOIA request. As a

general matter, “attorney work product . . . should not be any

more easily discoverable from the Government than from any

other party.” A.T.&T., 642 F.2d at 1301. Exemption 5

vindicates that principle in FOIA.

“FOIA expressly recognizes that important interests are

served by its exemptions and those exemptions are as much a

part of FOIA’s purposes and policies as the statute’s disclosure

requirement.” Food Mktg. Inst. v. Argus Leader Media, 588

U.S. 427, 439 (2019) (cleaned up). With Exemption 5 in

particular, the Supreme Court has underscored the exemption’s

integral role in preserving a balanced playing field in

government litigation.

The Court has explained that FOIA “is fundamentally

designed to inform the public about agency action and not to

benefit private litigants.” Sears, Roebuck & Co., 421 U.S. at

143 n.10 (emphasis added). The Court thus has “consistently

rejected . . . a construction of the FOIA” under which a party

“can obtain through the FOIA material that is normally

privileged.” United States v. Weber Aircraft Corp., 465 U.S.

792, 801 (1984). That kind of construction “would create an

anomaly in that the FOIA could be used to supplement civil

discovery.” Id. The Court does “not think that Congress could

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have intended that the weighty policies underlying discovery

privileges could be so easily circumvented” via the mere

submission of a FOIA request. Id. at 801–02. That

understanding substantially informs our resolution of this

appeal.

B.

Exemption 5 allows the government to withhold records

from disclosure if they satisfy two conditions. See Dep’t of

Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1,

8 (2001). First, they must qualify as “inter-agency or intra-

agency memorandums or letters.” 5 U.S.C. § 552(b)(5).

Second, they must “not be available by law to a party . . . in

litigation with the agency,” id.—i.e., they “fall within the ambit

of a privilege against discovery,” Klamath, 532 U.S. at 8. The

two conditions have “independent vitality” in that they both

must be satisfied. Id. at 12. And while they can be taken up in

any order, we will consider them in the order they appear in the

exemption’s terms.

So, we initially examine whether the withheld materials in

this case qualify as “intra-agency memorandums or letters.”

Answering yes, we then assess whether they fall within the

attorney work-product privilege or whether, as Georgia claims,

DOJ waived the privilege by sharing the materials with other

parties. Finding no waiver, we conclude that Exemption 5

shields the withholdings from FOIA’s disclosure mandate.

1.

We first consider whether the withheld communications

qualify as “inter-agency or intra-agency memorandums or

letters” within the meaning of Exemption 5. 5 U.S.C. §

552(b)(5). There is no dispute that the materials amount to

“memorandums or letters,” and DOJ does not contend that they

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are “inter-agency” records. The sole issue then is whether the

withheld information qualifies as “intra-agency.”

a.

To answer that question, we must first understand the

precise nature of the withheld materials. Georgia’s FOIA

request “seek[s] DOJ communications with various non-

governmental entities that are involved in the legal challenges

to” the state’s election law, SB 202. State of Georgia Request

at 1 (J.A. 15). The withheld documents thus all involve

communications between DOJ and non-government parties.

Specifically, the withholdings were all exchanged among

parties to the common-interest agreement. In accordance with

that scope, DOJ confines its position on what counts as “intra-

agency” materials to information shared under a common-

interest agreement.

Common-interest agreements derive from the common-

interest doctrine. Under that doctrine, “[i]f two or more clients

with a common interest in a litigated or nonlitigated matter are

represented by separate lawyers and they agree to exchange

information concerning the matter,” the information remains

“privileged as against third persons.” Restatement (Third) of

the Law Governing Lawyers § 76(1) (A.L.I. 2000). The

rationale is to enable parties with aligned interests to prepare

their case and “coordinate their positions without destroying

the privileged status of their communications.” Id. § 76 cmt. b.

A common-interest agreement protects the privileged status of

shared communications as to both the attorney-client privilege

and (relevant here) the attorney work-product privilege. See

Minebea Co. v. Papst, 228 F.R.D. 13, 16 (D.D.C. 2005).

The “common interest doctrine,” in short, “permits parties

whose legal interests coincide to share privileged materials

with one another in order to more effectively prosecute or

13

defend their claims.” Hunton & Williams, 590 F.3d at 277. So

when the government enters into a common-interest agreement

with aligned parties in litigation, the government concludes

that their interests have merged to an extent rendering it in the

public interest to coordinate their mutual efforts and do so

under a cone of confidentiality. The question here is whether

communications among the government and allied parties

within that rubric qualify as “intra-agency” exchanges under

Exemption 5.

b.

The sole court of appeals to have considered that question

answered it affirmatively. Hunton & Williams, 590 F.3d at

277–81. The Fourth Circuit there explained: “Because the

common interest doctrine requires the agency to determine that

the public interest and the litigation partner’s interest have

converged, communications between the agency and its partner

can be understood as ‘intra-agency’ for purposes of Exemption

5.” Id. at 280. Notably, in reaching that conclusion, the court

integrally relied on decisions from our court applying

Exemption 5 in related contexts. See id. at 279–80.

A long line of our court’s decisions establishes that “intra-

agency” for Exemption 5 purposes can encompass materials to

or from persons outside an agency’s employ. See Klamath, 532

U.S. at 9, 12–13 n.4 (discussing decisions); U.S. Dep’t of Just.

v. Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J., dissenting)

(same). As we recently observed, “our court and others have

long treated Exemption 5’s coverage of ‘intra-agency’ records

as extending beyond just [the] category” of materials “authored

by and exchanged between [an] agency’s employees.” Am.

Oversight v. U.S. Dep’t of Health & Hum. Servs., 101 F.4th

909, 914 (D.C. Cir. 2024).

14

Our line of decisions began over 50 years ago with Soucie

v. David, 448 F.2d 1067 (D.C. Cir. 1971), where we recognized

what has come to be known as the consultant corollary. Soucie

established that a document created by an agency’s outside

private consultant can qualify as an “intra-agency” record

under Exemption 5. “That exemption,” we explained, “was

intended to encourage the free exchange of ideas during [an

agency’s] process of deliberation and policymaking.” Id. at

1077. We reasoned that “[t]he “government may have a special

need for the opinions and recommendations of temporary

consultants, and those individuals should be able to give their

judgments freely without fear of publicity.” Id. at 1078 n.44.

An outside report thus can “be treated as an intra-agency

memorandum of the [soliciting] agency,” in furtherance of

Exemption 5’s purposes. Id.

Since Soucie, we have continued applying the consultant

corollary to protect materials exchanged with non-agency

outsiders under Exemption 5. See, e.g., McKinley v. Bd. of

Governors of Fed. Resrv. Sys., 647 F.3d 331, 339 (D.C. Cir

2011); Nat’l Inst. of Mil. Just. (NIMJ) v. U.S. Dep’t of Def., 512

F.3d 677, 685 (D.C. Cir. 2008); Jud. Watch, Inc. v. Dep’t of

Energy, 412 F.3d 125, 130–31 (D.C. Cir. 2005); Ryan v. Dep’t

of Just., 617 F.2d 781, 789–91 (D.C. Cir. 1980). Those

decisions rest on “a common sense interpretation of ‘intra-

agency’ that encompasses the advice submitted by such

temporary consultants.” NIMJ, 512 F.3d at 685 (quoting Ryan,

617 F.2d at 790 (quotation marks removed)). “When

interpreted in light of its purpose,” we have determined, “the

language of Exemption 5 clearly embraces [the] situation” of

an agency’s “rely[ing] on the opinions and recommendations

of temporary consultants, as well as its own employees.” Id. at

680 (quoting Ryan, 617 F.2d at 789).

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The Supreme Court has assumed the correctness of those

decisions’ interpretation of “intra-agency,” albeit without

definitively deciding the matter. See Klamath, 532 U.S. at 9–

14 (citing Soucie, among other decisions). In doing so, the

Court described and quoted Justice Scalia’s support of the

decisions in his separate opinion (joined by two other Justices)

in Department of Justice v. Julian, 486 U.S. at 18 n.1 (Scalia,

J., dissenting). See Klamath, 532 U.S. at 9–10. (The majority

in Julian did not reach the issue. See Klamath, 532 U.S. at 10

n.2; Julian, 486 U.S. at 11 n.9.)

Justice Scalia allowed that “the most natural meaning of

the phrase ‘intra-agency memorandum’ is a memorandum that

is addressed both to and from employes of a single agency.”

Julian, 486 U.S. at 18 n.1 (Scalia, J., dissenting). But “[t]he

problem with this interpretation is that it excludes many

situations where Exemption 5’s purpose of protecting the

Government’s deliberative process is plainly applicable.” Id.

“Consequently, the Courts of Appeals have uniformly rejected

it,” he explained. Id. And “[i]t seem[ed] to [him] that these

decisions are supported by a permissible and desirable reading

of the statute”—one that is “textually possible and much more

in accord with the purpose of the provision.” Id.

Under Justice Scalia’s and our court’s understanding of

Exemption 5, “Congress . . . did not intend ‘inter-agency’ and

‘intra-agency’ to be rigidly exclusive terms.” Ryan, 617 F.2d

at 790; see Julian, 486 U.S. at 18 n.1 (Scalia, J., dissenting)

(discussing Ryan and supporting its reading of the statute);

Klamath, 532 U.S. at 12–13 n.4 (declining to decide whether

result in Ryan is correct). The same is true of the immediately

ensuing words in Section 5: “memorandums or letters.” 5

U.S.C. § 552(b)(5). While there is no dispute in this case that

the withheld materials qualify as “memorandums or letters,” it

bears noting that those terms have likewise been given a

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nonrigid construction in accommodation of Exemption 5’s

purposes.

The items held to fall within Exemption 5’s protection of

“memorandums or letters” thus include: agency draft opinions,

U.S. Fish & Wildlife Serv., 592 U.S. at 273; draft historical

manuscripts and reports, Nat’l Sec. Archive v. CIA, 752 F.3d

460, 465 (D.C. Cir. 2014); interview notes, Williams &

Connolly v. SEC, 662 F.3d 1240, 1245 (D.C. Cir. 2011);

agency notebooks, Am. Fed’n of Gov’t Emps. v. U.S. Dep’t of

Com., 907 F.2d 203, 207–08 (D.C. Cir. 1990); cost estimates,

Quarles v. Dep’t of the Navy, 893 F.2d 390, 391–92 (D.C. Cir

1990); and calendar entries, Prop. of the People, Inc. v. Off. of

Mgmt. & Budget, 394 F. Supp. 3d 39, 48–49 (D.D.C. 2019).

Those decisions recognize that effective government

deliberation can take place through a range of documentary

formats beyond traditional “memorandums or letters.” 5

U.S.C. § 552(b)(5). Allowing FOIA to reach materials such as

draft pleadings, computer data, or handwritten notes would

drain Exemption 5 of its protective purpose. See Hunton &

Williams, 590 F.3d at 280–81.

c.

In accordance with our previous decisions, we refrain from

giving “intra-agency” in Exemption 5 an unduly rigid reading

and instead construe it in a common-sense way that accords

with the exemption’s purposes. See NIMJ, 512 F.2d at 680,

685; Soucie, 448 F.2d at 1078 n.44; see also Julian, 486 U.S.

at 18 n.1 (Scalia, J., dissenting). Applying that approach, we

conclude that the government’s attorney work product shared

with aligned parties in litigation under a common-interest

agreement qualifies as “intra-agency” material. That

understanding is “textually possible,” and it is “much more in

17

accord with the purpose of the provision.” Julian, 486 U.S. at

18 n.1 (Scalia, J., dissenting).

As for the text, our consultant corollary decisions hold that

non-agency outsiders can be sufficiently aligned and involved

with an agency in certain conditions that their exchanges with

the agency are treated as “intra-agency” under Exemption 5.

See Part II.B.1.b, supra. Considered against that backdrop,

“intra-agency” likewise embraces the circumstances of this

case: communications among an agency and its allied

litigating partners under a common-interest agreement aimed

to preserve the privileged status of their exchanges. After all,

the “Government has the same entitlement as any other party

to assistance from those sharing common interests.” A.T.&T.,

642 F.2d at 1300. And by entering into a common-interest

arrangement with aligned parties in litigation, the government

decides it is in the public interest to carry out their mutual

engagement in the undertaking under a common umbrella of

confidentiality recognized by the law. In that situation, the

other parties to the agreement can be treated as coming into the

agency’s fold for purposes of coordinating strategy and

litigating the case and sharing confidential information to that

end. See Hunton & Williams, 590 F.3d at 280 (“By cooperating

with the agency in pursuit of the agency’s own litigation aims,

the litigation partner in a limited sense becomes a part of the

enterprise that the agency is carrying out.”).

That understanding of “intra-agency” holds particular

sway when considered in light of Exemption 5’s purposes, as

our decisions have consistently done. The central salient

purpose of Exemption 5 in this case is the one elaborated

earlier: preventing parties in litigation from using FOIA as a

collateral means of accessing materials the law excludes from

discovery in the lawsuit. See Part II.A, supra. As the Supreme

Court has long made clear, FOIA is not intended to afford a

18

substitute way to obtain “normally privileged” agency records,

uniquely disadvantaging the government’s side in litigation.

Weber Aircraft, 465 U.S. at 801. To that end, “Exemption 5

expresses Congress’s view that the public interest is not served

by stripping government agencies of the privileges otherwise

available to them in litigation.” Hunton & Williams, 590 F.3d

at 277.

Reading “intra-agency” to exclude the withheld materials

in this case, though, would do exactly that. When a

government agency is a party in litigation, Exemption 5

generally prevents the opposing side from using FOIA to

obtain the agency’s privileged attorney work product. That is

a core object of the provision. But if “intra-agency” is rigidly

understood to exclude sharing of materials outside the strict

confines of an agency’s employees, FOIA would instantly

become a gateway to accessing the government’s attorney

work product whenever it is exchanged with aligned parties on

the same side of multiparty litigation.

It would not matter if the attorney work-product privilege

protects the shared materials from discovery in the litigation—

which, as we later explain, would normally be the case. See

Part II.B.2, infra. It also would not matter if the shared records

involve an especially sensitive type of attorney work product—

e.g., a document laying out the government’s legal strategy and

detailing its vulnerabilities. Nor would it matter if the materials

are exchanged under a common-interest agreement, the entire

purpose of which is to preserve the documents’ privileged

status. It would not even matter if the parties on the

government’s side are ordered by the court to coordinate their

work and consolidate their submissions. Regardless of any of

that, FOIA would afford a ready means for the opposing side

to obtain any and all attorney work product shared on the

government’s side.

19

We do not believe Congress intended the term “intra-

agency” in Exemption 5 to produce that striking result. And

the implications would be far-reaching. In an array of

situations, the government coordinates with non-agency parties

to advance the public interest. For instance, an agency often

litigates multi-party disputes alongside a range of parties on the

same side. See generally, e.g., West Virginia v. Env’t Prot.

Agency, 597 U.S. 697 (2022). The federal government also

frequently submits amicus briefs and participates in oral

argument in support of other parties. See generally, e.g.,

Moody v. NetChoice, LLC, 603 U.S. 707 (2024); DeVillier v.

Texas, 601 U.S. 285 (2024). In other instances, DOJ may

represent nonagency personnel, such as members of Congress

or judges or other judicial officers. See generally, e.g.,

Martinez v. United States, 838 F. App’x 662 (3d Cir. 2020);

Hodge v. Talkin, 799 F.3d 1145 (D.C. Cir. 2015). And in qui

tam lawsuits, there is extensive coordination between the

government and private relators. See, e.g., United States ex rel.

Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 425–26

(2023).

In all those situations and others, the government naturally

communicates with allied parties in litigation on matters

essential to effective advocacy and central to the work-product

privilege—e.g., developing legal arguments, coordinating

strategy, apportioning workstreams, drafting submissions, and

preparing for court appearances. Throughout, there is an

essential need to “maintain[] the confidentiality of attorney-

client communications in order to promote the rendering of

legal services.” In re Sealed Case, 107 F.3d 46, 49 (D.C. Cir.

1997). Beyond that, the protection of attorney work product is

indispensable to the integrity and fairness of the adversarial

process as a whole. See Hickman, 329 U.S. at 511; United

States v. Deloitte LLP, 610 F.3d 129, 139–40 (D.C. Cir. 2010);

A.T.&T., 642 F.2d at 1299.

20

In a host of circumstances, moreover, a court will leave the

government with no choice but to coordinate with aligned

parties. In the consolidated cases at issue here, for instance, the

court hearing the cases imposed collective discovery caps on

DOJ and the other consolidated plaintiffs—i.e., overall limits

on the number of depositions and interrogatories—necessarily

requiring the parties to work closely together. And in

comparable cases, “the United States routinely is required by

district court judges to file coordinated briefs, written

discovery, and other legal documents with other aligned

parties,” including “joint filings (such as briefs, findings of fact

and conclusions of law, etc.) reflecting the views of multiple

plaintiffs including the United States.” Russ Decl. ¶¶ 34–35

(J.A. 31–32).

To be sure, the government could try to engineer its

coordination with aligned parties so as to refrain from

exchanges that would subject its attorney work product to

disclosure under FOIA. Georgia suggested in oral argument,

for instance, that DOJ could confine its communications with

its common-interest partners to oral conversations by phone or

videoconference, without any sharing of written materials that

might constitute FOIA records. See Oral Argument at 39:37–

42:32. The parties then would presumably coordinate their

joint efforts in the consolidated challenges without ever sharing

a document via email or any medium.

It is hard to imagine effective—let alone efficient—

coordination under those kinds of manufactured constraints.

And at any rate, a central purpose of Exemption 5 is to avoid

subjecting the government to asymmetric disadvantages in the

conduct of litigation, which those sorts of doctored restrictions

would surely do. Ultimately, Georgia’s suggestion amounts to

saying that DOJ could avoid the need to disclose privileged

communications under FOIA if it would just forgo

21

communications implicating FOIA. Yet the entire object of

Exemption 5 is to protect the government’s privileged

communications, not discourage them.

For all those reasons, we conclude that communications

among the government and aligned parties in litigation under a

common-interest agreement qualify as “intra-agency”

exchanges for purposes of Exemption 5.

d.

In resisting that conclusion, Georgia contends that it

conflicts with our court’s consultant-corollary decisions.

Those decisions, as explained, establish that “intra-agency”

under Exemption 5 can range beyond the strict confines of an

agency’s employ. In that important respect, the consultant-

corollary decisions substantially inform our conclusion that the

communications in this case likewise qualify as “intra-agency,”

as we have set out. But those decisions’ understanding of the

exact conditions in which an outside consultant’s

communications count as “intra-agency” records does not

reflexively control in the distinct context of this case.

This is not a consultant-corollary case: it does not involve

an outside consultant giving advice to an agency as part of the

deliberative process leading to an agency decision. The

consultant corollary arose in and is tied to that setting. “We

first endorsed the corollary in Soucie . . . to account for the

reality that agencies often rely on outside experts for advice in

their deliberative processes.” Am. Oversight, 101 F.4th at 914.

And we recently held that “[t]he consultant corollary is limited

to situations where the outside entity . . . does not ‘represent an

interest of its own, or the interest of any other client, when it

advises the agency.’” Id. at 916 (quoting Klamath, 532 U.S. at

11). We considered the consultant’s absence of a stake in the

outcome of the agency’s deliberative process to be “the

22

hallmark of a consultative relationship,” id. at 920, and to put

the consultant in a comparable position to an agency employee

in that context for purposes of Exemption 5’s “intra-agency”

requirement, id. at 918.

This case, however, does not involve a “consultative

relationship,” and DOJ does not attempt to fit within the

consultant corollary. So the question here is not whether an

outside expert’s advice to an agency as part of the agency’s

own deliberative process is protected by Exemption 5. See id.

at 916 (“The key is that the consultant must not have a stake in

the outcome of the agency’s process . . . ” (emphasis added)).

This case instead involves an agency exchanging privileged

attorney work product with aligned outside parties in litigation

under a common-interest agreement.

To elaborate, the consultant corollary centrally concerns

an agency’s internal deliberative process and privileges that are

exclusive to the government in connection with its decisional

process. See id. at 914 (deliberative-process privilege); Soucie,

477 F.2d at 1071–72 (executive privilege); cf. Coastal States

Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir.

1980) (noting that “deliberative process privilege” is “unique

to the government”). Here, by contrast DOJ had completed its

internal process of deciding whether to bring a challenge to SB

202 and had filed its suit; and the agency seeks to preserve the

confidentiality of its attorney work product in the latter external

process (litigation) under a privilege generally available to all

sides and parties in that process (the attorney work-product

privilege). In accordance with those distinctions, what is

centrally at stake in the consultant-corollary cases is the

government’s ability to obtain advice to inform its own

decisional process. E.g., Soucie, 448 F.2d at 1077, 1078 n.44.

What is centrally at stake here is different: the fairness and

integrity of the adversary system writ large, and whether the

23

government must disclose its own side’s privileged work

product about litigation strategy when the opposing side need

not.

We acknowledge in this regard that the Supreme Court’s

decision in Klamath, while primarily addressed to the

deliberative-process privilege, noted that the government there

also asserted the attorney work-product privilege. See

Klamath, 532 U.S. at 6–8. But apart from those brief mentions,

the decision’s analysis focused entirely on the deliberative-

process privilege. That is unsurprising given that the decision

concerned the suitability of the government’s reliance there

(unlike here) on the consultant corollary, in connection with the

agency’s own decisional process. See id. at 8–16. Klamath

thus had no occasion to treat with the prospect of the

government’s having to turn over its attorney work product to

the opposing side in litigation—much less with the

implications of a common-interest agreement in that setting or

whether the sharing of information under such an agreement

qualifies as an “intra-agency” communication protected by

Exemption 5. See Hunton & Williams, 590 F.3d at 279

(distinguishing Klamath).

We confront that issue here. In this context, unlike with

the consultant corollary, an agency’s aligned partners

inherently come to the joint enterprise with their own interests

as parties in litigation. Still, when the government joins hands

with them in a common-interest arrangement securing the

confidential sharing of privileged information in furtherance of

the mutual undertaking, they are appropriately treated as

coming within the fold of the agency for that limited purpose

under Exemption 5. FOIA otherwise would severely undercut

the government’s attorney work-product privilege, even

though Congress enacted Exemption 5 with that privilege

specifically in mind. “We do not think that Congress could

24

have intended that the weighty policies underlying discovery

privileges could be so easily circumvented” via a FOIA

request. Weber Aircraft, 465 U.S. at 801–02.

That conclusion fully squares with the requirement to give

Exemption 5’s “intra-party” condition “independent vitality.”

Klamath, 532 U.S. at 12. We cannot treat that statutory

language as “a purely conclusory term, just a label to be placed

on any document the Government would find it valuable to

keep confidential.” Id. Our approach does not do so. We do

not consider the “intra-party” requirement satisfied merely

because the materials fall within a privilege of value to the

government. Rather, we conclude that, in the situation of a

common-interest agreement, the circumstances satisfy the

“intra-agency” condition because the outside parties to the

agreement are sufficiently aligned and involved in the agency’s

enterprise. To be sure, the common-interest agreement can

also bear on the remaining condition under Exemption 5:

whether the attorney work-product privilege applies in the

specific circumstances, a subject we turn to below. But so long

as we give the “intra-agency” requirement independent

content, which we do, nothing in Klamath bars—or purports to

bar—the same information from potentially bearing on both

conditions.

e.

Having determined that an agency’s sharing of

information with aligned parties pursuant to a common-interest

agreement qualifies as an “intra-agency” exchange, we now

assess whether the withheld communications in this case fit in

that category. Georgia argues that the withheld materials do

not qualify as “intra-agency” records even if communications

under a common-interest agreement generally do. According

to Georgia, the parties do not share sufficiently common

25

interests to implicate the common-interest doctrine. We

disagree. The government bears the burden to show that the

common-interest doctrine applies, see Hunton & Williams, 590

F.3d at 284, and the government has carried its burden.

Aside from two initial emails, the withheld

communications all post-date the parties’ memorialization of

their common-interest agreement. We disregard DOJ’s

challenge as to the two initial emails: DOJ confines that

challenge to a three-sentence footnote in its brief, DOJ Opening

Br. 29 n.7, and we “need not consider cursory arguments made

only in a footnote.” Hutchins v. D.C., 188 F.3d 531, 539 n.3

(D.C. Cir. 1999). What remains, then, is a set of

communications that all plainly took place after the parties had

entered into their common-interest agreement. A “common

interest agreement can be inferred where two parties are clearly

collaborating in advance of litigation,” regardless of whether

there is any written instrument. Hunton & Williams, 590 F.3d

at 284. But here, there is no ambiguity about the existence of

a common-interest arrangement because all the

communications in issue came after the parties had formalized

their agreement.

That set of communications was shared solely among the

six parties (including DOJ) whose cases had been consolidated.

And all of those parties challenged SB 202 on grounds of race

discrimination. To be sure, some of those race-discrimination

claims were brought under the Voting Rights Act and others

under the Constitution, and some may focus on discriminatory

intent while others allege discriminatory effect. But those sorts

of modest variations do not stand in the way of recognizing that

the parties’ commonality of interests is more than enough for

purposes of the common-interest doctrine.

26

Common interests “may be either legal, factual, or

strategic in character,” and “[t]he interests of the separately

represented clients need not be entirely congruent.”

Restatement (Third) of the Law Governing Lawyers § 76 cmt.

e. Here, accordingly, the district court consolidated the six

cases involving race-discrimination claims because of the

overlapping nature of the challenges, and the court imposed

collective discovery limits on the premise that the plaintiffs

could coordinate their work and jointly conduct discovery

across their consolidated matters. In United States v. A.T.&T.,

we found an adequate commonality of interests between the

government and a private plaintiff who had brought similar

antitrust claims against A.T.&T. in two separate forums. See

642 F.2d at 1299–300. We explained that the parties were

“proceeding on overlapping . . . issues against a common

adversary,” and that they “shared common interests in

developing legal theories and analyses of documents on which

to proceed on those issues where they both made the same . . .

claims.” Id. at 1300. The same is true in the consolidated cases

here.

2.

We have concluded that the withheld communications in

this case qualify as “intra-agency” materials within the

meaning of Exemption 5. We now address whether they also

satisfy the exemption’s second condition: that they “would not

be available bylaw to a party . . . in litigation with the agency,”

5 U.S.C. § 552(b)(5)—here, due to the attorney work-product

privilege.

DOJ explains that the withheld materials in this case are

classic attorney work product. See Hickman, 329 U.S. at 511.

The “records include documents discussing legal strategy,

potential witnesses, types of discovery needed, division of

27

labor in a case that would likely be [and later was]

consolidated, and the efficient presentation of the case.” Russ

Decl. ¶ 28 (J.A. 29). And the “emails and other documents at

issue were prepared by attorneys for the United States or

attorneys for the Common Interest Group and include those

attorneys’ mental impressions, conclusions, opinions, and legal

theories concerning positions that might be taken in the

litigation.” Id. (J.A. 29–30).

Georgia does not dispute that those kinds of materials fall

squarely within the attorney work-product privilege. Georgia’s

argument instead is that DOJ waived the privilege by sharing

the documents with aligned litigation partners. That is

incorrect.

“[W]hile the mere showing of a voluntary disclosure to a

third person will generally suffice to show waiver of the

attorney-client privilege, it should not suffice in itself for

waiver of the work product privilege.” A.T.&T., 642 F.2d at

1299 (emphasis omitted); see Deloitte LLP, 610 F.3d at 139.

Even as to the attorney-client privilege, in fact, there is no

waiver if the disclosure occurs under the rubric of a common-

interest arrangement. See Restatement (Third) of the Law

Governing Lawyers § 76. Here, accordingly, even if the case

involved the attorney-client privilege rather than the attorney

work-product privilege, disclosure of privileged matter to other

parties pursuant to the common-interest agreement would not

constitute a waiver.

The absence of any waiver is all the more clear with the

attorney work-product privilege. With that privilege,

“disclosing work product to a third party can waive protection

if such disclosure, under the circumstances, is inconsistent with

the maintenance of secrecy from the disclosing party’s

adversary.” Deloitte, 610 F.3d at 140 (internal quotation marks

28

omitted). In other words, “voluntary disclosure of attorney

work product to an adversary or a conduit to an adversary

waives work-product protection.” Id.; see A.T.&T., 642 F.2d

at 1299.

The disclosure of attorney work product in this case was

not “to an adversary or a conduit to an adversary” and was not

“inconsistent with the maintenance of secrecy from the

disclosing party’s adversary.” Deloitte, 610 F.3d at 140

(internal quotation marks omitted). To the contrary, the work

product was shared with aligned parties pursuant to a common-

interest agreement. And where there are “common interests on

a particular issue against a common adversary, the transferee is

not at all likely to disclose the work product material to the

adversary.” A.T.&T., 642 F.2d at 1299. That is particularly so

when the parties enter into a common-interest agreement, the

entire purpose of which is to assure that they can exchange

privileged matter without waiving the privilege. There was no

waiver here.

* * * * *

For the foregoing reasons, we affirm the district court’s

grant of summary judgment to Georgia with respect to the two

emails predating memorialization of the common-interest

agreement, but we otherwise reverse the district court’s grant

of summary judgment.

So ordered.