FOR THE DISTRICT OF COLUMBIA The Associated Press U.S

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

The Associated Press

Plaintiff,

v.

U.S. Department of State

Defendantand

BAE SYSTEMS PLC,6 Carlton GardensLondon SW1Y 5ADUnited Kingdom

BAE SYSTEMS, INC.1101 Wilson Blvd.Suite #2000Arlington, VA 22209

Proposed Defendant-Intervenors.

)

Case No. 1:15-cv-345 (RJL)

)))))))))))))))))))))))

BAE SYSTEMS PLC'S UNOPPOSED MOTION TO INTERVENE

BAE Systems plc ("BAES plc"), by and through the undersigned counsel, hereby moves

to intervene in this action pursuant to Rule 24(a)(2) and Rule 24(b) of the Federal Rules of Civil

Procedure. Plaintiff Associated Press ("AP") brought the present action under Freedom of

Information Act, 5 U.S.C. § 552, to compel the United States Department of State ("DOS") to

produce documents in response to five Freedom of Information Act (FOIA) requests. DOS is

contemplating release to AP of confidential and commercially-sensitive information submitted

by BAES plc to DOS in response to one of these requests ("Request E"). BAES plc now seeks to

Case 1:15-cv-00345-RJL Document 63 Filed 08/11/16 Page 1 of 4

2

intervene in this action to protect its proprietary and confidential information from public

disclosure.

BAES plc meets the requirements to intervene as a matter of right in this action. First,

the motion to intervene is timely, as it is filed before the parties join issue over the redactions by

DOS and the U.S. Department of Justice ("DOJ") of BAES plc's confidential and commercially

sensitive information. Second, as the initial submitter and source of the information at issue,

BAES plc has a strong interest in protecting against disclosure of its confidential proprietary

information, the dissemination of which would likely case substantial competitive harm to BAES

plc. Finally, no party to this litigation has the incentives or information sufficient to adequately

represent BAES plc's interests.

In the alternative, BAES plc should be granted permissive intervention. BAES plc's

position directly confronts the same issues of law and fact raised in relation to AP's Request E,

and there is no reason to assume that BAES plc' intervention will unduly delay or complicate this

FOIA litigation, or prejudice any party's rights.

For these reasons, as more fully set forth in the attached Joint Memorandum of Points and

Authorities in Support of BAES plc's and BAE Systems, Inc.'s Separate Motions to Intervene,

BAES plc respectfully requests that this Court grant its motion to intervene.

Pursuant to Local Rule 7(m), counsel for BAES plc certifies he has conferred with

counsel to AP and DOS regarding the subject of this motion, and that neither DOS nor AP object

to the proposed interventions. In accordance with Local Rule 7(c) and 7(j), BAES plc attaches a

proposed order permitting intervention.

Dated: August 11, 2016 Respectfully submitted,

_/s/Stuart W. Turner______________Stuart W. Turner (DC Bar #478392)


3

ARNOLD & PORTER LLP601 Massachusetts Avenue, N.W.Washington, DC 20001(202) [email protected]

Attorney for Proposed Intervenor BAESystems plc


4

CERTIFICATE OF SERVICE

I hereby certify that, on August 11, 2016, a true and correct copy of the foregoing motion,

along with the proposed order, BAES plc’s Answer to the Complaint, and BAES plc’s Local

Civil Rule 7(m) disclosure, were served via the Court’s CM/ECF system on all counsel of

record.

I further certify that a true and correct copy of the aforementioned filings were served on

counsel for proposed Defendant-intervenor BAE Systems, Inc. via e-mail and first class mail at

the following address:

Mark H. Lynch (DC Bar #193110)COVINGTON & BURLING LLPOne CityCenter850 Tenth Street NWWashington, D.C. 20001(202) [email protected]

/s/ Stuart W. TurnerStuart W. Turner




Plaintiff,

v.


Defendantand




)


)))))))))))))))))))))))

JOINT MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF BAE SYSTEMS PLC'S AND BAE SYSTEMS, INC.'S

SEPARATE AND UNOPPOSED MOTIONS TO INTERVENE

Stuart W. Turner (DC Bar #478392)ARNOLD & PORTER LLP601 Massachusetts Avenue, N.W.Washington, DC 20001(202) [email protected]

Attorney for Proposed Intervenor BAE Systemsplc

Mark H. Lynch (DC Bar #193110)Jaclyn E. Martínez Resly (DC Bar #1010753)COVINGTON & BURLING LLPOne CityCenter850 Tenth Street NWWashington, D.C. 20001(202) [email protected]@cov.com

Attorneys for Proposed Intervenor BAE Systems, Inc.

Case 1:15-cv-00345-RJL Document 63-1 Filed 08/11/16 Page 1 of 15

2

BAE Systems plc ("BAES plc") and BAE Systems, Inc. ("BAES, Inc."), by and through

their undersigned counsel, submit this joint Memorandum of Points and Authorities in support of

their separate Motions to Intervene, so as not to burden the Court with repetitive arguments from

each applicant. As set forth below, BAES plc and BAES, Inc. are entitled to intervene as of right

as defendants in this action pursuant to Federal Rule of Civil Procedure 24(a). In the alternative,

BAES plc and BAES, Inc. seek to intervene by permission pursuant to Federal Rule of Civil

Procedure 24(b). Moreover, after consultation, neither Defendant U.S. Department of State

("DOS") nor Plaintiff Associated Press ("AP") object to the proposed interventions.

The documents at issue in this FOIA case include documents submitted to the DOS by

both BAES plc and BAES, Inc. The two companies are separate entities, with separate boards,

separate executive teams, and separate legal departments. Furthermore, the Special Security

Agreement that governs the entities' relationship as contractors with agencies of the U.S.

Government requires the two companies to be separately represented in litigation. Accordingly,

both entities have retained separate counsel and have filed separate motions to intervene.

Nevertheless, if permitted to intervene, both entities will file joint memoranda to the greatest

extent possible — as exemplified by this memorandum — and will limit separate filings to those

instances where it is necessary for one of the entities to brief issues that are specific to it.

BACKGROUND

The AP by this suit seeks to compel the United States Department of State ("DOS") to

produce information in response to several Freedom of Information Act ("FOIA") requests,

including one request ("Request E") that encompasses highly confidential and commercially-

sensitive information submitted to DOS by BAES plc and BAES, Inc. BAES plc and BAES,


3

Inc. now seek to intervene in this action to protect their commercially sensitive proprietary and

confidential information from public disclosure.

The information submitted to DOS by BAES plc and BAES, Inc. was provided pursuant

to BAES plc's settlement with the DOS in May 2011 over alleged violations by BAES plc of the

International Traffic in Arms Regulations ("ITAR") and the Arms Export Control Act

("AECA"). As part of the settlement negotiations, BAES plc and BAES, Inc.1 voluntarily

submitted to the DOS extensive confidential and proprietary information and engaged in open

and frank settlement discussions. BAES plc and BAES, Inc. now seek to intervene in these

proceedings to ensure that they do not suffer harm from the public release of their proprietary

and confidential information, and also to ensure the continued integrity of the regulatory process

which relies upon the free, open, and voluntary transmission of sensitive information between

the regulator and regulated entities.

Submitters of information subject to FOIA request, such as BAES plc and BAES, Inc.,

have standing to intervene as a matter of right to protect such information. BAES plc's and

BAES, Inc.'s unopposed motions to intervene are timely, as they are filed before significant

litigation has begun, before the filing of the Government's Vaughn index of documents has been

provided to the parties and the Court, before AP has raised any objections to the redactions by

DOS and the U.S. Department of Justice ("DOJ") of BAES plc's or BAES, Inc.'s confidential

business information, and before this Court reviews any such challenges.

BAES plc and BAES, Inc. have been in contact with DOJ and DOS regarding the

documents at issue in Request E since August 2015, and since January 4, 2016 have periodically

received and reviewed the contents of proposed releases, in accordance with DOS regulations, to 1 Although BAES, Inc. was asked to provide documents during the settlement negotiations, it ultimately was excluded from the Consent Agreement.


4

determine if they contain confidential and proprietary information. As BAES plc and BAES,

Inc. understand it, in the next phase of litigation, these redactions may be the subject of specific

challenges from Plaintiff that BAES plc and BAES, Inc. are uniquely positioned to answer.

BAES plc and BAES, Inc. should therefore be allowed to intervene as parties to these

proceedings.

BAES plc and BAES, Inc. may intervene as of right because they have a strong and

unique interest in the subject of this case and in protecting the information DOS has withheld,

the dissemination of which would likely cause substantial competitive harm to BAES plc and

BAES, Inc. Neither the Government nor AP have the incentives or the information necessary to

adequately represent BAES plc's or BAES, Inc.'s. interests. Alternatively, BAES plc and BAES,

Inc. should be granted permissive intervention, as their position regarding the release of the

requested documents presents common questions of law and fact with respect to Plaintiff's

claims, and intervention by BAES plc and BAES, Inc. at this stage of the litigation, prior to the

upcoming scheduling hearing, will not unduly delay or prejudice either DOS' or Plaintiff's rights.

STATEMENT OF FACTS

A. The Associated Press FOIA Request

In 2010 and 2011, AP filed six requests under FOIA, 5 U.S.C. § 552, seeking to compel

DOS to release records regarding the official actions of Hillary Rodham Clinton taken during her

tenure as Secretary of State. On March 11, 2015, several years after the requests were filed, AP

filed suit in the above-captioned action to enforce its FOIA requests, alleging that DOS failed to

respond substantively to five requests and only partially responded to the request pertaining to

BAES plc and BAES, Inc. (See Compl., D.E. 1, at ¶ 4.) In its complaint, AP describes its

requests as relating to "some of the most prominent events of the recent past" including "U.S.


5

efforts to eliminate the threat posed by Osama bin Laden and U.S. government surveillance

activities." (Id. at ¶ 2.) The requests sought documents related to the actions of Secretary

Clinton while serving as Secretary of State relating to various subjects. (See id. at ¶ 3.)

The final request included in the omnibus complaint, Request E, sought documents

related to BAE plc and BAES, Inc. (Id. at ¶¶ 38-50.) Specifically, Request E sought:

copies of all emails, diplomatic cables, written correspondence, internal reports, legal documents, inter-office memos, meeting notes, analyses and all other documents and records from the office of Secretary of State Hillary Rodham Clinton pertaining to UK-based BAES plc. and/or the company’s U.S.-based subsidiary, BAE Systems Inc. between Jan. 21, 2009, and Dec. 31, 2011.

(Id. at Ex. E, D.E. 1-1, at AP024.)2 AP subsequently narrowed its request by email, stating that:

I would be willing to narrow my request to ask for copies of all emails, diplomatic cables, written correspondence, internal reports, legal documents, inter-officememos, meeting notes, analyses and other records between Jan. 21, 2009 and Dec. 31, 2011 from the previously named State officials and agencies concerning the May 2011 State decision for a negotiated civil settlement with BAE.

(Email from S. Braun to H. Perlow, Sept. 19, 2013, D.E. 42-1.)

The Complaint goes on to state that Request E related to the 2011 decision by DOS to

enter into a Consent Agreement with BAES plc to resolve certain DOS concerns relating to

BAES plc's compliance with the Arms Export Control Act ("AECA") and the International

Traffic in Arms Regulations ("ITAR"). (See Compl. at ¶¶ 3, 39-45.) During the timeframe

covered by Request E, BAES plc and BAES, Inc. cooperated with DOS’s inquiry into this

matter, and voluntarily disclosed documents to DOS containing proprietary commercial and

highly confidential information of BAES plc and BAES, Inc. as part of the negotiations between

DOS and BAES plc pursuant to settlement of the inquiry. (See Decl. of Stuart W. Turner

("Turner Decl."), at ¶ 3.)

2 AP subsequently narrowed its request by email. (See Email from S. Braun to H. Perlow, Sept. 19, 2013, D.E. 42-1.)


6

On August 7, 2015, after status conferences centered on, among other things, the

resources DOS devoted to AP's requests and DOS's progress thus far to search and review

allegedly responsive documents, this Court ordered production of documents in this case.

Relevant to BAES plc and BAES, Inc., this Court ordered:

[W]ithin 240 days of the date of this Order, Defendant shall produce all non-exempt portions of the documents responsive to Request E, Records Regarding BAE Systems, that have been identified to date and have been estimated to be approximately 13,387 pages in total. Production of documents responsive to Request E shall proceed via rolling productions beginning 120 days from the date of this Order and continuing every 30 days thereafter.

(Order, D.E. 17, at 2.) In July 2016, the Court extended DOS's deadline to produce documents

responsive to Request E to August 19, 2016. (See Order, D.E. 58.)

B. DOS’s Production Process

DOS produced documents allegedly responsive to Request E on December 7, 2015. (See

Def.'s Status Rep. Re 1st Request E Prod., D.E. 33, at 2.) DOS produced further batches of

documents without BAES plc or BAES, Inc. review on January 6, 2016, February 5, 2016, April

4, 2016, and May 9, 2016. (See Def.'s Status Reports Re Request E Prods., D.E. 36, 39, 47, 49.)

These documents were not provided to BAES plc or BAES, Inc. beforehand. (Turner Decl. at ¶

4.)

On January 5, 2016, DOS (through DOJ) began providing BAES plc and BAES, Inc.

with copies of a small number of documents before their release so that the companies could

evaluate the documents under FOIA Exemption (b)4, which protects "trade secrets and

commercial or financial information obtained from a person [that is] privileged or confidential."

5 U.S.C. § 552(b)(4). "Commercial and financial information" is not limited merely to financial

or pricing information, but also includes the broad range of information that contains commercial

value for its original source. See Pub. Citizen v. U.S. Dep't of Health & Human Servs., 975 F.


7

Supp. 2d 81, 105 (D.D.C. 2013) (material is "commercial and financial" because it "involve[s]

the process by which the companies make decisions about managing and conducting their

business operations."); Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280, 1290 (D.C.

Cir. 1983) ("commercial and financial information" is defined broadly). The first large group of

documents (51 pages) was sent to BAES plc and BAES, Inc. on March 26, 2016. See D.E. 47, at

2.

DOJ and BAES plc and BAES, Inc. established a process through which DOJ would

provide the companies with copies of the documents containing BAES plc and BAES, Inc.

information. Since then, BAES plc and BAES, Inc., within two to three weeks of receipt, have

reviewed each of the batches of documents provided to them by DOS to identify appropriate

redactions or restrictions on release pursuant to FOIA Exemption (b)(4). (See Turner Decl., at ¶

5.) Specifically, BAES plc and BAES, Inc. have reviewed thousands of pages of documents,

provided draft redactions as appropriate, discussed the scope of redactions in detail with DOJ

and DOS, and submitted detailed legal support to DOS for BAES plc's and BAES, Inc.'s

proposed redactions. (See id..) DOJ has released large volumes of documents redacted via this

process to AP. (See Def.'s Status Rep. Re 8th Request E Prod., D.E. 54, at 2.)

At the hearings convened by the Court in this matter, AP has discussed its intention to

challenge before this Court some or all of the redactions implemented by DOJ and DOS.

(Turner Decl. at ¶ 6.) These documents may contain information that is confidential and

competitively sensitive, and were submitted voluntarily to DOS as part of an ongoing settlement

discussion. (See id. at ¶ 7.) No other party, including DOS or DOJ, has the full context

illustrating precisely what is confidential in each, or is positioned regarding the controversies in

this case in the same manner as BAES plc and BAES, Inc.


8

ARGUMENT

"The right of intervention conferred by [Federal Rule of Civil Procedure] 24 implements

the basic jurisprudential assumption that the interest of justice is best served when all parties

with a real stake in a controversy are afforded an opportunity to be heard." 100Reporters LLC v.

U.S. Dept. of Justice, 307 F.R.D. 269, 274 (D.D.C. 2014) (granting motion to intervene in FOIA

action where intervenor sought to protect confidential and commercially sensitive information it

submitted to DOJ while negotiating and implementing plea agreement) (quoting Hodgson v.

United Mine Workers of Am., 473 F.2d 118, 130 (D.C. Cir. 1972)).

It is well-established that FOIA submitters like BAES plc and BAES, Inc. are entitled to

intervene in suits such as this one, where FOIA requesters sue to obtain access to the submitters'

information. See, e.g., 100Reporters, 307 F.R.D. at 275 ("[P]reventing the disclosure [under

FOIA] of commercially-sensitive and confidential information is a well-established interest

sufficient to justify intervention under Rule 24(a)." (citing inter alia Pub. Citizen Health

Research Grp., 185 F.3d at 900)). Therefore, BAES plc and BAES, Inc. have a real stake in this

controversy and submit that they should be permitted to intervene as a matter of right pursuant to

Rule 24(a)(2) or allowed to intervene permissively pursuant to Rule 24(b).

I. BAES plc and BAES, Inc. are Entitled To Intervene As A Matter Of Right Under Rule 24(a).

Rule 24(a) requires intervention as a matter of right where: (1) the application to

intervene is timely; (2) the applicants claim an interest relating to the property or transaction that

is the subject of the action; (3) the applicants are so situated that the disposition of the action

may, as a practical matter, impair or impede their ability to protect that interest; and (4) the

applicants interests are not adequately represented by existing parties. See, e.g., Fund for

Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003). An applicant seeking intervention


9

as of right must also possess Article III standing and demonstrate ripeness. See id. at 731-32;

100Reporters, 307 F.R.D. at 281-82. BAES plc and BAES, Inc. meet these requirements easily.

A. BAES plc's and BAES, Inc.'s Applications are Timely

Timeliness of a motion to intervene is a circumstantial inquiry, and "the requirement is

aimed primarily at preventing potential intervenors from unduly disrupting litigation."

100Reporters, 307 F.R.D. at 274-75 (quoting Roane v. Leonhart, 741 F.3d 147, 151 (D.C. Cir.

2014)). BAES plc's and BAES, Inc.'s unopposed motions are timely, as they are filed before the

parties join issue over the redactions of DOS and DOJ to BAES plc's and BAES, Inc.'s

confidential and commercially-sensitive information. Because of the current posture of the case,

no party to the action will be unfairly disadvantaged by BAES plc's and BAES, Inc.'s

intervention, and, indeed, no party objects to BAES plc's and BAES, Inc.'s intervention. See

Roane, 741 F.3d at 151 (holding that passage of time "is not in itself the determinative test . . . .

Instead, the requirement of timeliness is aimed primarily at preventing potential intervenors from

unduly disrupting litigation, to the unfair detriment of the existing parties." (emphasis added and

internal quotation marks and citations omitted)). BAES plc's and BAES, Inc.'s intervention

affects no deadlines or actions by any other party, and does not disrupt the litigation in any way.

See id. at 151-52 (reversing district court for "los[ing] sight of th[e] fundamental principle" that

"even where a would-be intervenor could have intervened sooner, in assessing timeliness a court

must weigh whether any delay in seeking intervention unfairly disadvantaged the original

parties" (internal quotation marks, alterations, and citation omitted)).

B. BAES plc and BAES, Inc. Have A Legally Protected Interest In This Action.

As noted above, BAES plc and BAES, Inc. have a clear and well-established interest in

safeguarding their proprietary information against improper release under FOIA. See, e.g.,

100Reporters, 307 F.R.D. at 275 ("[P]reventing the disclosure [under FOIA] of commercially-


10

sensitive and confidential information is a well-established interest sufficient to justify

intervention under Rule 24(a)." (citing Pub. Citizen Health Research Grp., 185 F.3d at 900)).

With exceptions, the documents allegedly responsive to Request E concern BAES plc

and BAES, Inc., and were voluntarily provided to DOS by the companies in the course of a

settlement negotiation with BAES plc. (See Turner Decl. at ¶ 7.) The documents sought to be

released are internal documents provided by BAES plc and BAES, Inc. regarding their

regulatory compliance, or documents created by the Government incorporating the companies'

information, in connection with the inquiry conducted by DOS of BAES plc during 2010 and

2011. (See id.)

This Court recently held that information relating to companies’ internal operations

designed to ensure compliance in highly regulated industries qualifies as commercial and

confidential information within the scope of FOIA Exemption 4. See Pub. Citizen, 975 F. Supp.

2d at 88-89, 116-17 (holding that competitive harm would result from disclosure of reports of

audits and reviews of pharmaceutical manufacturers’ compliance with settlement agreements that

include "extensive, probing review of [] confidential business systems and policies, . . . internal

structure and operations, how the company interacts with [stakeholders], and [] policies

governing the selling, detailing, marketing, advertising, promoting and branding of Government

Reimbursed Projects"); Pub. Citizen v. United States Dep't of Health & Human Servs., 66 F.

Supp. 3d 196, 208 (D.D.C. 2014) (in same action, holding that disclosure log summaries were

"commercial" information because they included information regarding, inter alia, "the way the

companies implement their compliance programs").

BAES plc and BAES, Inc. have immediate, legally recognized interests in the outcome of

this case, and should be allowed to intervene.


11

C. Disclosure of BAES plc's and BAES, Inc.'s Confidential and Proprietary Information Would Impair BAES plc's and BAES, Inc.'s Ability To Protect Their Interests.

Disclosure of BAES plc's and BAES, Inc.'s confidential and proprietary information

would immediately and irreversibly impair their interests. Indeed, one "consequence that

frequently qualifies as impairment is when the disclosure of material following the disposition of

a FOIA action 'could impair the applicants' ability to protect their trade secrets or confidential

information.'" 100Reporters, 307 F.R.D. at 279 (quoting Appleton v. FDA, 310 F. Supp. 2d 194,

197 (D.D.C. 2004)).

Among the materials being considered for release are documents such as confidential

internal audit reports, copies of internal manuals and trainings, proprietary details of export

licenses and other business operations, accounts of conversations between DOS and BAES plc or

BAES, Inc. officials undertaken in the context of settlement negotiations, detailed DOS reports

of the companies' internal compliance systems, and other confidential and proprietary

documents. (See Turner Decl. at ¶ 7.)

The disclosure of this information would cause immediate and irreversible harm to BAES

plc and BAES, Inc. See, e.g., Pub. Citizen, 975 F. Supp. 2d at 116-17 (holding that disclosure of

materials containing "extensive, probing" review of "confidential business systems and policies,"

as well as company's "internal structure and operations," would result in competitive harm to

companies if disclosed).

D. BAES plc's and BAES, Inc.'s Interests Are Not Adequately Represented By The Existing Parties.

Putative intervenors must show that their interests are distinct from those of the existing

parties. See Fund for Animals, 322 F.3d at 731. The showing required is "minimal," and

movants in the position of BAES plc and BAES, Inc. "ordinarily should be allowed to intervene


12

unless it is clear that [another] party will provide adequate representation for the absentee."

100Reporters, 307 F.R.D. at 279 (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538

n.10 (1972) and United States v. Am. Tel. & Tel. Co., 642 F.24 1285, 1293 (D.C. Cir. 1980)). In

this case, no other party will adequately represent the interests of BAES plc and BAES, Inc.

Neither AP nor DOS have the same incentive as BAES plc and BAES, Inc. to protect the

companies' confidential and commercially sensitive information from disclosure. The structure

of FOIA reinforces this principle. AP wishes to obtain the most information possible, and DOS

has neither the particularized internal knowledge nor as strong an interest in identifying the

potential competitive harm arising from a particular document. "[B]y the very nature of FOIA

litigation, the government entity and the private intervenor will possess fundamentally different

interests—the government is interested in fulfilling its FOIA obligations; the intervenor is

interested in preventing disclosure of its confidential materials—such that the government entity

is quite unlikely to provide 'adequate representation.'" 100Reporters, 307 F.R.D. at 280 (citing

Appleton, 310 F. Supp. 2d at 197). This unique knowledge and interest is precisely why agencies

have regulations requiring agencies to consult with submitters regarding confidential materials.

E. BAES plc and BAES, Inc. Have Standing, And Their Unopposed Motions Are Ripe For Review.

"[G]enerally speaking, when a putative intervenor has a 'legally protected' interest under

Rule 24(a), it will also meet constitutional standing requirements, and vice versa." WildEarth

Guardians v. Salazar, 272 F.R.D. 4, 13 n.5 (D.D.C. 2010). "[T]hough there always exists

significant overlap between Rule 24(a)'s interest requirement and Article III's injury-in-fact

requirement, that likely never is truer than in a situation such as this, where the imminent and

concrete risk of a proposed intervenor's confidential materials being released through a

successful FOIA action is obvious." 100Reporters, 307 F.R.D. at 283-84 (internal citations


13

omitted). "When, as here, it is clear that the FOIA requester seeks the release of documents that

are likely to contain the intervenor's confidential information, the intervenor's injury is both

particularized and sufficiently imminent." Id. (holding potential intervenor had Article III

standing when applying to intervene in FOIA action where plaintiff was seeking confidential and

commercially-sensitive information about intervenor from DOJ). Just as Siemens possessed

Article III standing in 100Reporters, BAES plc and BAES, Inc. have standing in this case

because AP's Request E is seeking BAES plc's and BAES, Inc.'s confidential and commercially

sensitive information from DOS; AP's FOIA action against DOS creates imminent and concrete

risk to BAES plc's and BAES, Inc.'s interests.

Finally, BAES plc's and BAES, Inc.'s motions to intervene are clearly ripe, as they come

before the parties have joined the issue on the redactions implemented to the Request E

documents by DOS and DOJ. See 100Reporters, 307 F.R.D. at 282. Here, AP, DOS, and DOJ

have all agreed to the schedule set by this Court for immediate review, so delay is not an option.

II. In The Alternative, This Court Should Permit BAES plc and BAES, Inc. To Intervene Under Rule 24(b).

In the event that this Court determines that BAES plc and BAES, Inc. do not have a right

to intervene under Rule 24(a), BAES plc and BAES, Inc. request that the Court permit them to

intervene pursuant to Rule 24(b), which provides considerable discretion to "permit anyone to

intervene who . . . has a claim or defense that shares with the main action a common question of

law or fact." Fed. R. Civ. P. 24(b)(1). The Court also "must consider whether the intervention

will unduly delay or prejudice the adjudication of the original parties' rights." Id. at 24(b)(3).

Here, BAES plc's and BAES, Inc.'s positions directly confront the same issues of law and

fact raised in relation to AP's Request E, and there is no reason to assume that BAES plc's and

BAES, Inc.'s intervention will delay or unduly complicate this FOIA litigation. BAES plc and


14

BAES, Inc. may take different positions on these issues than either AP or DOS, but that does not

amount to an undue delay or complication, and adds no new issues or parameters to the case.

See 100Reporters, 307 F.R.D. at 286 (stating that potential intervenor was entitled to permissive

intervention in FOIA case).

CONCLUSION

BAES plc and BAES, Inc. have clear and unique interests in the outcome of this matter,

and for the reasons set forth above, they respectfully requests that the Court grant their

unopposed Motions to Intervene. For the Court's convenience, proposed orders are attached to

BAES plc's and BAES, Inc.'s motions.

LOCAL CIVIL RULE 7(M) CERTIFICATION

Counsel for BAES plc and counsel for BAES, Inc. hereby certify that they conferred with

counsel to Plaintiff AP and Defendant DOS regarding the subject of their motions, and that

neither DOS nor AP object to the proposed interventions.

Dated: August 11, 2016 Respectfully Submitted,

_/s/Stuart W. Turner____________________ Stuart W. Turner (DC Bar #478392)

ARNOLD & PORTER LLP601 Massachusetts Avenue, N.W.Washington, DC 20001(202) [email protected]

Attorney for Proposed Intervenor BAE Systems plc

Mark H. Lynch (DC Bar #193110)Jaclyn E. Martínez Resly (DC Bar #1010753)COVINGTON & BURLING LLPOne CityCenter850 Tenth Street NW


15

Washington, D.C. 20001(202) [email protected]@cov.com

Attorneys for Proposed Intervenor BAESystems, Inc.




Plaintiff,

v.


Defendantand




)


)))))))))))))))))))))))

DECLARATION OF STUART TURNER IN SUPPORT OF BAE SYSTEMS PLC'S AND BAE SYSTEMS, INC.'S SEPARATE AND UNOPPOSED MOTIONS TO INTERVENE

I, Stuart W. Turner, hereby declare under penalty of perjury as follows:

1. I am an attorney licensed in the District of Columbia and Counsel at the law firm

of Arnold & Porter LLP. I am counsel of record for proposed Defendant-Intervenor BAE

Systems plc ("BAES plc"). During the events described herein, I also represented BAE Systems,

Inc. ("BAES, Inc."). I am admitted to practice before this Court.

2. I am personally familiar with the matters set forth herein and make this

Declaration in support of BAES plc's and BAES, Inc.'s Separate and Unopposed Motions to


2

Intervene in the above-referenced matter. This declaration is an attachment to the Memorandum

in Support of BAES plc's and BAES, Inc.'s Separate and Unopposed Motions to Intervene, to

which the reader is referred for additional facts relevant to the following statements.

3. During the timeframe covered by Request E of the Freedom of Information Act

("FOIA") request filed by Plaintiff Associated Press ("AP"), BAES plc and BAES, Inc.

cooperated with the inquiry of the U.S. Department of State ("DOS") referred to in Request E,

and voluntarily disclosed documents to DOS containing proprietary commercial and highly

confidential information of BAES plc and BAES, Inc. as part of the negotiations between DOS

and BAES plc pursuant to settlement of that inquiry.

4. None of the documents produced by the Department of Justice ("DOJ") on behalf

of DOS on December 7, 2015, January 6, 2016, February 5, 2016, April 4, 2016, and May 9,

2016 were provided to BAES plc or BAES, Inc. for review prior to release.

5. DOJ and BAES plc and BAES, Inc. established a process through which DOJ

would provide the companies with copies of the documents containing BAES plc and BAES,

Inc. information. BAES plc and BAES, Inc., within two to three weeks of receipt, reviewed each

of the batches of documents provided to them by DOS to identify appropriate redactions or

restrictions on release pursuant to FOIA Exemption (b)(4). BAES plc and BAES, Inc. have

reviewed thousands of pages of documents, provided draft redactions as appropriate, discussed

the scope of redactions in detail with DOJ and DOS, and submitted detailed legal support to

DOS for BAES plc's and BAES, Inc.'s proposed redactions.

6. I attended hearings convened by the Court in this matter on June 28, 2016 and

July 6, 2016. At these hearings, AP discussed its intention to challenge before this Court some

or all of the redactions implemented by DOJ and DOS.


3

7. The documents allegedly responsive to Request E concern BAES plc and BAES,

Inc., may contain information that is confidential and competitively sensitive and were

voluntarily provided to DOS by the companies in the course of a settlement negotiation with

BAES plc. The documents sought to be released are internal documents provided by BAES plc

and BAES, Inc. regarding their regulatory compliance, or documents created by the Government

incorporating the companies' information, in connection with the inquiry conducted by DOS of

BAES plc during 2010 and 2011. Among the materials being considered for release are

documents such as confidential internal audit reports, copies of internal manuals and trainings,

proprietary details of export licenses and other business operations, accounts of conversations

between DOS and BAES plc or BAES, Inc. officials undertaken in the context of settlement

negotiations, detailed DOS reports of the companies' internal compliance systems, and other

confidential and proprietary documents.

I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true

and correct.

Executed on August 11, 2016

By: /s/ Stuart W. TurnerStuart W. Turner




Plaintiff,

v.


Defendantand




)

Case No. 1:15-cv-345[RJL]

)))))))))))))))))))))))

PROPOSED ORDER

Upon consideration of BAE Systems plc's Motion to Intervene (the "Motion") and the

record of this case, it is this ____ day of August, 2016 hereby ORDERED that the Motion is

granted.

_______________________________

Hon. Richard J. Leon


ATTORNEYS ENTITLED TO NOTICE

Stuart W. Turner ARNOLD & PORTER LLP601 Massachusetts Avenue, N.W.Washington, DC 20001(202) [email protected] for Proposed Intervenor BAE Systems plc

Mark H. LynchCovington & Burling LLPOne CityCenter 850 Tenth Street, NWWashington, DC 20001-4956202 662 [email protected] for Proposed Defendant-Intervenor BAE Systems, Inc.

Jay Ward BrownLevine, Sullivan, Koch, & Schulz, LLP1899 L Street, NWSuite 200Washington, DC 20036Phone (202) 508-1136Fax (202) [email protected] for Plaintiff Associated Press

Carol Federighi Senior Trial CounselUnited States Department of JusticeCivil Division, Federal Programs BranchP.O. Box 883Washington, DC 20044Phone: (202) [email protected] for Defendant U.S. Department of State


Documents

FOR THE DISTRICT OF COLUMBIA The Associated Press U.S