On Thursday, Judge McMahon granted a motion by a putative class of federal grant recipients to compel the production of certain documents withheld by defendants National Endowment for the Humanities (NEH) and the Department of Government Efficiencies (DOGE) as privileged. The underlying discovery pertains to a class action challenging the mass termination of approximately 1,400 NEH grants last year.
Judge McMahon first rejected the government’s theory that certain documents reflecting “inter-agency coordination” of the grant terminations were protected under the common interest privilege. Although the communications occurred “in a legally sensitive environment,” Judge McMahon concluded that the “common-interest doctrine requires more than a generalized awareness of legal risk or a shared desire to act lawfully.” The government’s argument would prove too much, as it would suggest a privilege that covers “virtually all inter-agency coordination”:
Accepting Defendants’ position would effectively extend the doctrine to virtually all inter-agency coordination, since all agency actions invariably carry potential legal implications. Defendants’ theory would render all routine inter-agency coordination into privileged material, a result inconsistent with the doctrine’s narrow scope.
Judge McMahon also ruled that it could not simply be assumed that any government lawyer speaking to a government official was an attorney-client communication: “Government lawyers do not represent the Executive Branch writ large, nor do they represent every federal employee with whom they interact; they represent specific government clients pursuant to defined legal authority.”
Looking to “defined legal authority,” Judge McMahon distinguished DOGE attorneys from precedent in which other government attorneys (e.g., at the DOJ) operated with explicit statutory authority to provide legal advice to other agencies. The Court concluded that DOGE “stands on materially different footing” because it was not granted such authority.
Unlike DOJ, USDS [DOGE] lacks organic statutory authority to represent executive agencies, to conduct litigation on their behalf, or to provide binding legal advice to agency officials outside of itself. The absence of such authority is dispositive. Without it, the Court cannot simply infer that communications between [DOGE] attorneys and employees of the NEH or GSA were made within an attorney-client relationship. That inference is inconsistent with settled privilege principles and the narrow construction afforded to government privileges. [The Executive Order creating DOGE] cannot supply what Congress has not.