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September 27, 2013

American, US Airways says it doesn't want DOJ's "attorney mental impressions"

American Airlines and US Airways said it only wants the facts and not the U.S. Department of Justice's legal strategies.

In a court filing made on Friday, the airlines' attorneys responded to the DOJ's argument that the companies should not be allowed to see analysis of previous airline mergers and third party interviews.

Since the filing was only four paragraphs, here is the complete filing from American and US Airways.

"Plaintiffs acknowledge that Interrogatory 1 seeks only facts and names—yet insist it seeks attorney mental impressions. It does not. It seeks only relevant “factual information” provided by thirdparty interviewees, and the identities of those interviewees. The government cannot hide these facts behind the work-product doctrine simply because they are recorded in legal memoranda—the memoranda may be protected, but the facts are not. Wright & Miller, Federal Practice & Procedure § 2023; Hickman v. Taylor, 329 U.S. 495, 507 (1947) (parties can be compelled to disgorge facts).

"Unlike the Hickman petitioner—who requested “exact copies” of witness statements and “exact provisions” of oral statements—Defendants do not seek a witness-by-witness reconstruction of attorney questioning. See United States v. Dean Foods Co., 2010 WL 3980185, *3 & n.2 (E.D. Wis. 2010). 

"The government cites In re Sealed Case, but that involved a deposition probing attorney recollections. 856 F.2d 268, 273 (D.C. Cir. 1988). In contrast, the interrogatory here allows the government “to craft a response” that ensures “its counsel’s mental impressions . . . are not reflected in the answer.” Dean Foods at *3 n.3.

"The few rulings going Plaintiffs’ way are devoid of reasoning—see, e.g., Blue Cross/Blue Shield at 5 (“attorneys conducted this investigation,” so the “results are therefore work product”); Apple at 1  (“Denied.”)—and most of the remaining cases cited by Plaintiffs—unlike here—involve only a small number of identified witnesses where the requesting party could easily reconstruct the missing facts through its own discovery."

Attorneys for American and US Airways had asked the court to force the Justice Department to turn over documents as the two sides prepare for a trial set for Nov. 25.

In August, the department and several state attorneys general filed an antitrust lawsuit to stop the merger, saying it would harm consumers with higher fares and more fees.

-Andrea Ahles



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