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DOJ intended to file a letter to a judge but accidentally filed a letter containing its legal advice instead.
Reposted by Aiding And Abetting Terrorists Hat
Anna Bower
@annabower.bsky.social
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Update: The Justice Department filed a letter acknowledging that it inadvertently uploaded an attorney-client privileged document to the public docket last night.
DOJ seeks to have the document permanently sealed or removed, and asks judge to hold that AC privilege was not waived.
Dear Judge Liman:
This Office represents defendants Sean Duffy, in his official capacity as Secretary of the United States Department of Transportation {"DOT"}, Gloria M. Shepherd, in her official capacity as Executive Director of the Federal Highway Administration {"FHWA"}, DOT, and FHWA {together the "Federal Defendants"} in the above-referenced matter. We write respectfully to request that the Court remove or permanently seal ECF No. 65, which is an attorney-client privileged / attorney work product communication that was inadvertently filed on the docket in this matter last night.
At 9:04 p.m. last night, undersigned counsel inadvertently uploaded an attorney-client communication from this Office to DOT to ECF rather than a letter intended for Your Honor.' Immediately upon realizing this error, at 9:18 p.m., we contacted all counsel of record via email advising of this inadvertent filing of a privileged communication and requesting that they not download the document, or if they had downloaded it, to delete it. We also immediately took steps to contact the Clerk's office to have the document removed, and we understand that by 9:48 p.m. the Clerk's office had put a temporary seal on the document, and it was no longer available on ECF. Although the contents of the document have been made public in news reporting, the document was filed in error and should not be considered part of the court docket.
Accordingly, we respectfully request that the Court remove or permanently seal ECF No.
65 and hold that the inadvertent filing does not constitute a waiver of the attorney client privilege.
See Mazzocchi v. Windsor Owners Corp., No. 11 Civ. 07913 (RA)(SDA), 2020 WL 4038342, at
*3 (S.D.N.Y. July 17, 2020) (rejecting argument that inadvertent filing of attorney-client privileged communication on the public docket constituted waiver, and ordering Clerk of the Court to maintain the privileged document under seal (citing Fed. R. Evid. 502(b), (d))). We have reached out to co…
ALT
Sierra Club and Riders Alliance and Plaintiffs MTA and TBTA who have indicated that they would be open to discussing the issue of whether the document should remain under seal. Plaintiffs MTA and TBTA do not object to temporary sealing pending further consideration by the parties and the Court.
The Federal Defendants do not believe further discussion among the parties is necessary given that the document is a privileged communication, was plainly filed in error, and the Government took immediate steps to notify the parties and have the document removed from the docket, and therefore the document should not be available to the other parties or the Court for consideration in this matter. See SDNY ECF Rules & Instructions, Section 21.7; see also Mazzocchi, 2020 WL 4038342, at *3 (citing Fed. R. Evid. 502(b), (d)).
We sincerely apologize for any inconvenience that this error may cause the Court or the
parties, and thank the Court for its assistance in this matter.
Respectfully,
JAY CLAYTON
United States Attorney for the Southern District of New York
ALT
April 24, 2025 at 12:17 PM
@annabower.bsky.social
Follow
Update: The Justice Department filed a letter acknowledging that it inadvertently uploaded an attorney-client privileged document to the public docket last night.
DOJ seeks to have the document permanently sealed or removed, and asks judge to hold that AC privilege was not waived.
Dear Judge Liman:
This Office represents defendants Sean Duffy, in his official capacity as Secretary of the United States Department of Transportation {"DOT"}, Gloria M. Shepherd, in her official capacity as Executive Director of the Federal Highway Administration {"FHWA"}, DOT, and FHWA {together the "Federal Defendants"} in the above-referenced matter. We write respectfully to request that the Court remove or permanently seal ECF No. 65, which is an attorney-client privileged / attorney work product communication that was inadvertently filed on the docket in this matter last night.
At 9:04 p.m. last night, undersigned counsel inadvertently uploaded an attorney-client communication from this Office to DOT to ECF rather than a letter intended for Your Honor.' Immediately upon realizing this error, at 9:18 p.m., we contacted all counsel of record via email advising of this inadvertent filing of a privileged communication and requesting that they not download the document, or if they had downloaded it, to delete it. We also immediately took steps to contact the Clerk's office to have the document removed, and we understand that by 9:48 p.m. the Clerk's office had put a temporary seal on the document, and it was no longer available on ECF. Although the contents of the document have been made public in news reporting, the document was filed in error and should not be considered part of the court docket.
Accordingly, we respectfully request that the Court remove or permanently seal ECF No.
65 and hold that the inadvertent filing does not constitute a waiver of the attorney client privilege.
See Mazzocchi v. Windsor Owners Corp., No. 11 Civ. 07913 (RA)(SDA), 2020 WL 4038342, at
*3 (S.D.N.Y. July 17, 2020) (rejecting argument that inadvertent filing of attorney-client privileged communication on the public docket constituted waiver, and ordering Clerk of the Court to maintain the privileged document under seal (citing Fed. R. Evid. 502(b), (d))). We have reached out to co…
ALT
Sierra Club and Riders Alliance and Plaintiffs MTA and TBTA who have indicated that they would be open to discussing the issue of whether the document should remain under seal. Plaintiffs MTA and TBTA do not object to temporary sealing pending further consideration by the parties and the Court.
The Federal Defendants do not believe further discussion among the parties is necessary given that the document is a privileged communication, was plainly filed in error, and the Government took immediate steps to notify the parties and have the document removed from the docket, and therefore the document should not be available to the other parties or the Court for consideration in this matter. See SDNY ECF Rules & Instructions, Section 21.7; see also Mazzocchi, 2020 WL 4038342, at *3 (citing Fed. R. Evid. 502(b), (d)).
We sincerely apologize for any inconvenience that this error may cause the Court or the
parties, and thank the Court for its assistance in this matter.
Respectfully,
JAY CLAYTON
United States Attorney for the Southern District of New York
ALT
April 24, 2025 at 12:17 PM
Update: The Justice Department filed a letter acknowledging that it inadvertently uploaded an attorney-client privileged document to the public docket last night.
— Anna Bower (@annabower.bsky.social) 2025-04-24T16:17:10.510Z
DOJ seeks to have the document permanently sealed or removed, and asks judge to hold that AC privilege was not waived.
Anna Bower
@annabower.bsky.social
Follow
So, uh, it certainly looks like DOJ intended to file a letter to Judge Liman in MTA v. Duffy, but….it accidentally filed a letter containing its legal advice to the Department of Transportation instead
https://storage.courtlistener.com/recap/gov.uscourts.nysd.637159/gov.uscourts.nysd.637159.65.0.pdf
Re: MTA v. Duffy, No. 25 Civ. 1413 (S.D.N.Y.)
Dear Erin:
We write with respect to the above-referenced litigation brought by the Metropolitan
Transportation Authority {"MTA"} against the U.S. Department of Transportation {"DOT"}, U.S.
Secretary of Transportation Sean Duffy, the Federal Highway Administration {"FHWA"}, and Executive Director of the FHWA, Gloria Shepherd, to provide you with information concerning
(1) the litigation risk that DOT faces in defending the Secretary's February 19, 2025 decision to terminate the New York City Central Business District Tolling Program {"CBDTP"} agreement, and (2) a process for terminating the CBDTP agreement outside of the current litigation for DOT to consider.
As discussed below, there is considerable litigation risk in defending the Secretary's
February 19, 2025 decision against plaintiffs' claims under the Administrative Procedure Act, that the decision was contrary to law, pretextual rocedurally arbitrary and capricious, and violated due process. For the reasons outlined below, it is unlikely that Judge Liman or further courts of review will accept the argument that the CBDTP was not a statutorily authorized "value pricing" pilot under the Value Prising Pilot Program {" ar
FHWA may, however, be able to properly terminate the CBDTP value pricing pilot pursuant to established Office of Management and Budget {"OMB"} regulations concerning the termination of cooperative agreements. Termination of the CBDTP agreement pursuant to these OMB regulations would still allow FHWA to end the CBDTP for the Secretary's stated reasons, but would do so as a matter of changed agency priorities rather than arguing the CBDTP was not statutorily authorized in the first instance. Importantly, DOT can seek termination of the agreement pursuant to the OMB regulations in addition to, and not in place of, defending the rationale laid out in the Secretary's letter.
Case 1:25-cv-01413-LJL Document 65 Filed 04/23/25 Page 2 of 11
Page 2
ALT
April 23, 2025 at 9:55 PM
@annabower.bsky.social
Follow
So, uh, it certainly looks like DOJ intended to file a letter to Judge Liman in MTA v. Duffy, but….it accidentally filed a letter containing its legal advice to the Department of Transportation instead
https://storage.courtlistener.com/recap/gov.uscourts.nysd.637159/gov.uscourts.nysd.637159.65.0.pdf
Re: MTA v. Duffy, No. 25 Civ. 1413 (S.D.N.Y.)
Dear Erin:
We write with respect to the above-referenced litigation brought by the Metropolitan
Transportation Authority {"MTA"} against the U.S. Department of Transportation {"DOT"}, U.S.
Secretary of Transportation Sean Duffy, the Federal Highway Administration {"FHWA"}, and Executive Director of the FHWA, Gloria Shepherd, to provide you with information concerning
(1) the litigation risk that DOT faces in defending the Secretary's February 19, 2025 decision to terminate the New York City Central Business District Tolling Program {"CBDTP"} agreement, and (2) a process for terminating the CBDTP agreement outside of the current litigation for DOT to consider.
As discussed below, there is considerable litigation risk in defending the Secretary's
February 19, 2025 decision against plaintiffs' claims under the Administrative Procedure Act, that the decision was contrary to law, pretextual rocedurally arbitrary and capricious, and violated due process. For the reasons outlined below, it is unlikely that Judge Liman or further courts of review will accept the argument that the CBDTP was not a statutorily authorized "value pricing" pilot under the Value Prising Pilot Program {" ar
FHWA may, however, be able to properly terminate the CBDTP value pricing pilot pursuant to established Office of Management and Budget {"OMB"} regulations concerning the termination of cooperative agreements. Termination of the CBDTP agreement pursuant to these OMB regulations would still allow FHWA to end the CBDTP for the Secretary's stated reasons, but would do so as a matter of changed agency priorities rather than arguing the CBDTP was not statutorily authorized in the first instance. Importantly, DOT can seek termination of the agreement pursuant to the OMB regulations in addition to, and not in place of, defending the rationale laid out in the Secretary's letter.
Case 1:25-cv-01413-LJL Document 65 Filed 04/23/25 Page 2 of 11
Page 2
ALT
April 23, 2025 at 9:55 PM
So, uh, it certainly looks like DOJ intended to file a letter to Judge Liman in MTA v. Duffy, but….it accidentally filed a letter containing its legal advice to the Department of Transportation instead
— Anna Bower (@annabower.bsky.social) 2025-04-24T01:55:40.446Z
storage.courtlistener.com/recap/gov.us...
4 replies
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= new reply since forum marked as read
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