Is the "available supporting data" and other materials submitted to the Department all subject to the attorney-client privilege even if not provided by the employee and, if not, what is or is not covered? ANSWER Whether such materials are covered by the attorney-client privilege is determined by application of the general principles concerning the privilege. As a result, materials forwarded from the General Counsel's office to the Department of Justice which are not matters of public record or generated independently of the litigation would usually be considered privileged. QUESTION NO. 52 Is any individual designated by the agency to receive a request for representation automatically an "individual acting as an attorney" for an employee submitting a request and does such status automatically subject communications with such person to the attorney-client privilege? ANSWER Yes. QUESTION NO. 53 . Does the employee submitting a request have to take any formal action to initiate an attorney-client relationship with the request for representation and, if so, describe such action? ANSWER No. QUESTION NO. 54 In reviewing the employing agencies' submission, to what extent will or should the litigating division conduct its own independent inquiry as to facts which relate to whether the employee was acting within the scope of his or her employment? ANSWER If the facts present a situation in which the employee may not have been acting within the scope of his employment, or if there is the possibility of conflict between co-defendants or between a defendant and the Department, the matter will be referred for independent investigation, but in the vast majority of cases, such referral will be unnecessary. QUESTION NO. 55 To what extent does the Department's litigation division rely ANSWER The Department considers the recommendation of the employing agency but is not bound by it. QUESTION NO. 56 Is the Department's determination of whether an employee sued in his or her individual capacity was acting within the scope 25 of his or her employment under Section 50.15 (a) (2) of the Order based on the same considerations as the determination made under Section 15.21 with respect to suits against employees in their official capacity? ANSWER Suits brought against employees in their official capacities are, in effect, suits against the agency. Thus, the considerations are totally different. In such circumstances the employee is usually the representative of the agency and the relief ordinarily runs against the agency not against the employee as an individual. The Department is required by statute to provide representation in such cases. QUESTION NO. 57 On what specific grounds has the Department declined to represent an individual sued in his or her individual capacity under Section 50.15 (a) who the Department determined was acting within the scope of his or her employment? ANSWER To date, no such determination has been made. QUESTION NO. 58 Can the Department decline to represent an employee on the general grounds that it is not the interest of the United States to represent an employee under Section 15.2 and under Section 50.15 who the Department determined was acting within the scope of his or her employment? If the answers to questions 56 and 58 indicate a difference between Sections 15.2 and 50.15, why does the Department have greater discretion to refuse to represent an employee acting within the scope of his or her employment when--often for tactical reasons--a plaintiff happens to style a complaint as being against that employee in his or her "individual" rather than in his or her "official" capacity? ANSWER See answer to question No. 56, supra. QUESTION NO. 60 Is the statutory authority for retaining a private attorney to engage in fact-finding regarding the possible existence of inter-defendant conflicts the same as for retaining a private attorney to represent a federal employee? ANSWER Yes. QUESTION NO. 61 Is there any difference between the selection process of retaining private attorneys for these two purposes? ANSWER Where private counsel is being retained for the purposes of screening to determine if conflicts exist, the employee is not On what basis does the Department determine that there is sufficient possibility of inter-defendant conflicts to warrant retaining private counsel to engage in fact-finding with respect to such conflicts? ANSWER The determination is made on the basis of allegations in the complaint, pertinent government records, public testimony and knowledge gained in other litigation. QUESTION NO. 63 Is any information gained by a Department attorney prior to retaining private counsel to engage in fact-finding covered by the attorney-client privilege and can such Department attorney later represent any of the co-defendants? ANSWER Information obtained in a manner covered by the attorney-client privilege is covered by the privilege regardless of when acquired. If no ethical considerations are found to preclude representation, the Department attorney may later represent any of the co-defendants. QUESTION NO. 64 What form does the recommendation of a private attorney retained to ascertain inter-defendant conflicts take? Will it be |