The U.S. Department of Justice said Thursday there’s no legal basis to require it to tell American A

The U.S. Department of Justice said Thursday there's no legal basis to require it to tell American Airlines and US Airways the names of people they talked to before filing an antitrust lawsuit to block the carriers' merger.
In addition, DOJ said it doesn't have to defend its decision not to try to block four other airline mergers since 2005: US Airways-America West, Delta-Northwest, United-Continental and Southwest-AirTran.
The DOJ was making it case to a special master who is hearing disputes about what information each side must surrender to the other side in the lawsuit. DOJ filed the suit Aug. 13, and it's set to go to trial on Nov. 25.
In separate filings in the past week. US Airways and American have asked to know who talked to the DOJ prior to the lawsuit, and they've asked for documents from the DOJ's examination of the four prior lawsuits.
It appears that the airlines want to find out which of their competitors urged the DOJ to file a lawsuit. US and AA also want to get DOJ s internal conclusions when it decided not to try to stop the other mergers so that they can use the DOJ s conclusions against the DOJ in court, we presume.
On the names issue, the DOJ filing said thtAmerican and US Airways "do not dispute that notes and memoranda prepared during aftermarket cruise control windstar Plaintiffs' investigations of the proposed merger are protected from discovery under the work-product doctrine.
"Nonetheless, Defendants argue that they are entitled to the identities of the third-parties interviewed by Plaintiffs and the facts that Plaintiffs' attorneys chose to ask about and memorialize from those interviews. aftermarket cruise control windstar This argument is foreclosed aftermarket cruise control windstar by Supreme Court and Circuit precedent and has been directly rejected in recent antitrust enforcement actions, which Defendants fail to address.
"The Supreme Court has held that an interrogatory constituting a "naked, general demand" for all facts learned in non-party interviews—the very interrogatory Defendants propound here—necessarily reveal the opinions and mental processes of counsel, and therefore is improper," the DOJ stated.
As to the "what did you do in previous mergers" issue, DOJ's filing said that the airlines want DOJ to give up "'factual materials and information regarding DOJ's approval of four prior airline mergers.'
"But Defendants expressly declined Plaintiffs' offer to produce the basic factual materials collected in earlier investigations and have made clear that they do not seek mere facts—such as the number of overlap routes between merging airlines or numbers of passengers on particular routes," the filing said.
"Rather, Defendants aftermarket cruise control windstar explicitly seek Plaintiffs' 'own analysis' of facts when evaluating the legality of the proposed mergers and determining whether to challenge them in court. Such confidential aftermarket cruise control windstar assessments and internal deliberations are plainly privileged and no court has ever ordered similar disclosures by federal antitrust enforcement officials (or by state officials), as far as we know," the DOJ filing stated.
Pursuant to the Order Appointing Special Master, dated September 4, 2013, Plaintiffs hereby give notice that they have submitted their Response to Defendants' Motion to Compel Productions of Factual Materials aftermarket cruise control windstar and Information Regarding DOJ's Approvals of Four Prior Airline Mergers to Special Master Richard A. Levie for his consideration. A copy of Plaintiffs' Response is attached as Exhibit 1.
Defendants' motion to compel claims to call for "factual materials and information regarding DOJ's approval of four prior airline mergers." 1 But Defendants expressly declined Plaintiffs' aftermarket cruise control windstar offer to produce the basic factual materials collected in earlier investigations and have made clear that they do not seek mere facts—such as the number of overlap routes between merging airlines or numbers of passengers on particular routes. Rather, Defendants explicitly seek Plaintiffs' "own analysis" (Motion at 4) of facts when evaluating the legality of the proposed mergers and determining whether to challenge them in court. Such confidential assessments and internal deliberations are plainly privileged and no court has ever ordered similar disclosures by federal aftermarket cruise control windstar antitrust enforcement officials (or by state officials), as far as we know.
Defendants appear to believe that "factual analyses" leading aftermarket cruise control windstar to enforcement decisions have less protection than "legal analyses." That distinction has no basis in law. Prosecutorial decisions are a product of analyses of facts and law applicable to specific aftermarket cruise control windstar situations. The D.C. Circuit has explained that information "culled" from a "much larger universe of facts" gathered by an agency aftermarket cruise control windstar reflects "an exercise of judgment as to what issues are most relevant" to an enforcement decision and is privileged under the deliberative process privilege. Ancient Coin Collectors Guild v. Dep't of State, 641 F.3d 504, 513 (D.C. Cir. 2011). Judge Kollar-Kotelly recently reached the same conclusion, holding that an agency's "own analysis" of data provided in investigations "falls squarely within the [deliberative process] privilege." Am. Petroleum Tankers Parent, LLC v. United States, __ F. Supp. 2d __, 2013 WL 3462575, at *12 (D.D.C. July 10, 2013). Yet this is precisely the sort of "factual analyses" sought here. Motion at 5, 7.
The requested analyses aftermarket cruise control windstar also are protected work product because they were prepared "in the course aftermarket cruise control windstar of an active investigation focusing upon specific events and a specific possible violation by a specific aftermarket cruise control windstar party," SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1203 (D.C. Cir. 1991). Many of the requested aftermarket cruise control windstar materials are also protected by the attorney-client privilege and investigative files privilege.
Defendants have no need for these privileged internal analyses, which are irrelevant to the lawfulness of the challenged merger. The compelled disclosure of such analyses would significantly harm the quality of agency decisionmaking by chilling deliberations among government attorneys and economists in future investigations.
aftermarket cruise control windstar Defendants' proposed merger follows four other airline aftermarket cruise control windstar mergers in the last eight years that have significantly reduced the number of major national airlines. Plaintiffs did not sue to enjoin those mergers, but that is not a defense to this lawsuit. Increased concentration through consolidation invariably leads to heightened concerns about subsequent mergers and every merger must be evaluated on its own terms in light of current industry conditions. How Plaintiffs analyzed other mergers years ago when industry conditions were different has no bearing on legality of this merger.
In claiming relevance, Defendants cite a single case, United States v. Leggett Platt, Inc., 542 F.2d 655 (6th Cir. 1976). Leggett, however, makes clear that whether "the government aftermarket cruise control windstar failed to prosecute civil antitrust actions to divest other industry acquisitions is in and of itself irrelevant," because "'discriminatory enforcement' is, as a matter of law, no defense." aftermarket cruise control windstar Id. at 658. While the court also suggested that "factual materials" in files from "other industry acquisitions are relevant, and thereby discoverable aftermarket cruise control windstar unless privileged," id., 2 Defendants declined Plaintiffs' aftermarket cruise control windstar offer to produce the basic factual materials from earlier investigations, making clear that is not what they wanted.
The deliberative process privilege aftermarket cruise control windstar "'prevent[s] injury to the quality of agency decisions' by allowing government officials freedom to debate alternative approaches in private." In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (citation omitted). The privilege protects "documents and other materials that would reveal advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Id. (citation and internal aftermarket cruise control windstar quotation marks omitted). "[P]redecisional materials, 'even if 'factual' in form' may be covered by the privilege if they 'reflect an agency's preliminary positions or ruminations about how to exercise discretion on some policy matter' and thus would 'expose the deliberative process within an agency.'" In re Apollo Group, 251 F.R.D. 12, 28 (D.D.C. 2008) (Kollar-Kotelly, J.) (citations omitted).
The deliberative process privilege applies to the requested analyses. They were created for the purpose of evaluating aftermarket cruise control windstar the antitrust merits of the mergers and informing the agency head's decision whether to challenge the merger. The analyses are therefore both "predecisional" and "deliberative." See In re Sealed Case, 121 F.3d at 737; see also United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993) (documents were privileged because "they were clearly part of the deliberative process leading to [the Antitrust Division's] aftermarket cruise control windstar decision to sue"); Lone Star Indus. v. F.T.C., 1984 WL 21979, at *6 (D.D.C. 1984) (memoranda and analysis of market definition "inform[ing] and contribut[ing] aftermarket cruise control windstar to . . . recommendations" were deliberative). aftermarket cruise control windstar Defendants' effort to distinguish between work performed by government aftermarket cruise control windstar attorneys and government economists is unfounded, as the privilege extends to analyses conducted by antitrust enforcers' in-house economists as well. E.g., F.T.C. v. Warner Commc'ns Inc., 742 F.2d 1156, 1161-62 (9th Cir. 1984) (Bureau of Economics memoranda recommending merger challenge were deliberative because they would reveal FTC "[a]nalyses").
Defendants argue that the privilege does not apply to "'purely factual reports.'" Motion at 5. But Defendants are not simply seeking facts from the earlier investigations. Instead, they seek "analyses" aftermarket cruise control windstar specifically undertaken to guide government enforcement decisions. Motion at 2-7, 9. Adding the word "factual" to their demands does nothing to undercut the protections of the deliberative process privilege. These analyses reflect Plaintiffs' exercise of judgment in sifting through the relevant universe of information and focusing on what attorneys and economists consider important in a given case and are thus privileged. See Ancient Coin, 641 F.3d at 513; see also Montro