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Case TitleJUDICIAL WATCH, INC. v. U.S. DEPARTMENT OF JUSTICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2013cv01344
Date Filed2013-09-05
Date Closed2014-09-12
JudgeJudge Richard J. Leon
PlaintiffJUDICIAL WATCH, INC.
Case Description Judge Richard Leon has ruled that a court order requiring the Justice Department and the House Committee on Oversight and Government Reform to keep their settlement discussions private acts as a prohibition against disclosure of such records to Judicial Watch. After the House Committee filed suit against Attorney General Eric Holder to enforce its subpoena for records concerning DOJ's Fast and Furious operation, the parties began settlement discussions under the direction of Judge Amy Berman Jackson. Jackson subsequently referred the settlement discussions to Senior Judge Barbara Rothstein. Judicial Watch then requested records pertaining to the settlement discussions and DOJ's Civil Division told Judicial Watch that responsive records were protected by Exemption 5 (privileges) and Jackson's court order. Judicial Watch sued and Leon sided with DOJ. He noted initially that D.C. Local Ruled 84.9 "prohibits the mediator, all counsel and parties and any other persons attending the mediation from disclosing any written or oral communications made in connection with or during any mediation session." Judicial Watch argued that the documents were created before Jackson ordered mediation, but Leon observed that "unfortunately for the plaintiff, its narrow interpretation of Local Rule 84.9 is inconsistent with the broad protections this District Court provides for confidential settlement discussions between parties." He pointed out that "to say the least, it strains credulity for plaintiff to argue that these communications were not 'made in connection' with mediation, given that the parties were strongly encouraged to engage in settlement discussions, and were reminded that court-ordered mediation might be ordered at any time. As is the case with formal court-ordered mediation, disclosure of sensitiveâ€"yet informalâ€"settlement communications between parties would have a chilling effect on settlement negotiations and would be inconsistent with the core purpose of Local Rule 84.9â€"to promote resolution of civil disputes short of litigation." He indicated that "here, we have an explicit statement from Judge Jackson instructing the parties to keep the substance of their settlement discussions private, extrinsic evidence that the parties believed there was a court-imposed restriction prohibiting the disclosure of the substance of their settlement negotiations, and a court rule prohibiting the disclosure of 'any written or oral communications made in connection with or during any mediation session. Based on the above, there can be no doubt that there was a valid court-imposed restriction prohibiting disclosure of confidential settlement communications between the parties. The defendant had no discretion to produce the responsive documents, and therefore, the withholding of those documents was clearly proper."
Complaint issues: Exemption 3 - Statutory prohibition of disclosure

DefendantU.S. DEPARTMENT OF JUSTICE
AppealD.C. Circuit 14-5215
AppealD.C. Circuit 17-5229
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [21]
FOIA Project Annotation: Judge Richard Leon ruled that a court order requiring the Justice Department and the House Committee on Oversight and Government Reform to keep their settlement discussions private acts as a prohibition against disclosure of such records to Judicial Watch. After the House Committee filed suit against Attorney General Eric Holder to enforce its subpoena for records concerning DOJ's Fast and Furious operation, the parties began settlement discussions under the direction of Judge Amy Berman Jackson. Jackson subsequently referred the settlement discussions to Senior Judge Barbara Rothstein. Judicial Watch then requested records pertaining to the settlement discussions and DOJ's Civil Division told Judicial Watch that responsive records were protected by Exemption 5 (privileges) and Jackson's court order. Judicial Watch sued and Leon sided with DOJ. He noted initially that D.C. Local Ruled 84.9 "prohibits the mediator, all counsel and parties and any other persons attending the mediation from disclosing any written or oral communications made in connection with or during any mediation session." Judicial Watch argued that the documents were created before Jackson ordered mediation, but Leon observed that "unfortunately for the plaintiff, its narrow interpretation of Local Rule 84.9 is inconsistent with the broad protections this District Court provides for confidential settlement discussions between parties." He pointed out that "to say the least, it strains credulity for plaintiff to argue that these communications were not 'made in connection' with mediation, given that the parties were strongly encouraged to engage in settlement discussions, and were reminded that court-ordered mediation might be ordered at any time. As is the case with formal court-ordered mediation, disclosure of sensitive�"yet informal�"settlement communications between parties would have a chilling effect on settlement negotiations and would be inconsistent with the core purpose of Local Rule 84.9�"to promote resolution of civil disputes short of litigation." He indicated that "here, we have an explicit statement from Judge Jackson instructing the parties to keep the substance of their settlement discussions private, extrinsic evidence that the parties believed there was a court-imposed restriction prohibiting the disclosure of the substance of their settlement negotiations, and a court rule prohibiting the disclosure of 'any written or oral communications made in connection with or during any mediation session. Based on the above, there can be no doubt that there was a valid court-imposed restriction prohibiting disclosure of confidential settlement communications between the parties. The defendant had no discretion to produce the responsive documents, and therefore, the withholding of those documents was clearly proper."
Issues: Exemption 3 - Statutory prohibition of disclosure
Opinion/Order [38]
FOIA Project Annotation: On remand from the D.C. Circuit, Judge Richard Leon has once again ruled that six letters and two draft settlement agreements exchanged between the Department of Justice and the House Committee on Oversight and Government Reform in an attempt to settle litigation involving the enforcement of the Committee's subpoena for records pertaining to the agency's "Fast and Furious" operation are protected by Local Civil Rule 84.9, which provides for confidentiality of records submitted to a court-authorized mediator. The original litigation to enforce the subpoena was heard by Judge Amy Berman Jackson. She encouraged the parties to try to reach a settlement, but told them that she did not want to know the substance of those discussions. Judicial Watch filed a FOIA request with DOJ for the eight records. DOJ refused to disclose them, contending that they were subject to court-ordered non-disclosure. Judicial Watch sued and Leon agreed with the agency, citing not only LCR 84.9, but also finding that Jackson's instructions on settling the case suggested that she intended them to be confidential. Judicial Watch appealed to the D.C. Circuit. There the appeals court found Jackson's statement ambiguous and ordered the agency to clarify her intent. Jackson indicated that she had not intended to order the records sealed. But when the case came back to Leon, he ruled that LCR 84.9 still provided a sufficient basis for non-disclosure. Leon found that because Jackson had told the parties that Senior Judge Barbara Rothstein had agreed to serve as mediator if they chose to pursue that course, the fact that the parties, after failing to settle the dispute without further judicial intervention, later agreed to mediation overseen by Rothstein indicated that the earlier draft settlement records were made in connection with court-ordered mediation. Judicial Watch argued that LCR 84.9 only applied to mediation through the U.S. District Court's Mediation Program and, further, that it only applied to protect confidentiality of records during mediation. Noting that LCR 84.9 had never been used in the FOIA context before, Leon pointed out that "in this case, it is clear that the eight documents at issue were created following Judge Jackson's encouragement to engage in settlement discussions and after her admonition that she was prepared to order formal mediation. It is thus not necessary to define a precise temporal window for the phrase 'made in connection with.' On this record the documents plainly fit within it." Treating LCR 84.9 as a judicial prohibition against disclosure under FOIA, Leon emphasized the importance of keeping such mediation confidential. "Keeping mediation confidential is an incentive for parties to mediate. It also broadens the scope of potential solutions. If the prohibition on disclosure were immediately lifted when mediation or litigation concluded, parties that frequently find themselves in court (such as the Government) would be limited in their ability to explore creative solutions in individual cases, and one of the key benefits of mediation would be lost."
Issues: Exemption 3 - Statutory prohibition of disclosure
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2013-09-051COMPLAINT against U.S. DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-3457150) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons U.S. Attorney, # 3 Summons U.S. Attorney General, # 4 Summons Department of Justice)(Orfanedes, Paul) (Entered: 09/05/2013)
2013-09-052LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. (Orfanedes, Paul) (Entered: 09/05/2013)
2013-09-05Case Assigned to Judge Richard J. Leon. (sth, ) (Entered: 09/06/2013)
2013-09-063NOTICE of Appearance by Michael Bekesha on behalf of JUDICIAL WATCH, INC. (Bekesha, Michael) (Entered: 09/06/2013)
2013-09-064ELECTRONIC SUMMONS (3) Issued as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth, ) (Entered: 09/06/2013)
2013-09-105SUMMONS REISSUED (1) as to U.S. Attorney. (kb) (Additional attachment(s) added on 9/10/2013: # 1 Consent Form, # 2 Notice of Consent) (kb, ). (Entered: 09/10/2013)
2013-09-196RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 9/16/2013. Answer due for ALL FEDERAL DEFENDANTS by 10/16/2013. (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 09/19/2013)
2013-10-077NOTICE of Appearance by Nathan Michael Swinton on behalf of U.S. DEPARTMENT OF JUSTICE (Swinton, Nathan) (Entered: 10/07/2013)
2013-10-078Unopposed MOTION to Stay Case in Light of Lapse of Appropriations by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Swinton, Nathan) (Entered: 10/07/2013)
2013-10-169ANSWER to Complaint by U.S. DEPARTMENT OF JUSTICE.(Swinton, Nathan) (Entered: 10/16/2013)
2013-10-3110Joint MOTION for Briefing Schedule by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Swinton, Nathan) (Entered: 10/31/2013)
2013-11-0511ORDER : It is hereby ordered that the parties' 10 Joint Motion for Briefing Schedule is GRANTED. Defendant's motion for summary judgment due January 31, 2014; Plaintiff's opposition and cross motion due by February 28, 2014; Defendant's reply and opposition to cross motion due by March 28, 2014; Plaintiff's reply due by April 11, 2014. Signed by Judge Richard J. Leon on 11/02/13. (tb, ) (Entered: 11/05/2013)
2013-11-05Set/Reset Deadlines: Cross Motions due by 2/28/2014. Response to Cross Motions due by 3/28/2014. Reply to Cross Motions due by 4/11/2014. Summary Judgment motions due by 1/31/2014. Response to Motion for Summary Judgment due by 2/28/2014. Reply to Motion for Summary Judgment due by 3/28/2014. (tb, ) (Entered: 11/05/2013)
2013-11-1912STANDING ORDER. Signed by Judge Richard J. Leon on 11/19/13. (lcrjl2) (Entered: 11/19/2013)
2014-01-0313MEET AND CONFER STATEMENT. (Swinton, Nathan) (Entered: 01/03/2014)
2014-01-3014Unopposed MOTION for Extension of Time to File Motion for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Swinton, Nathan) (Entered: 01/30/2014)
2014-02-03MINUTE ORDER granting 14 Motion for Extension of Time. It is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the parties shall abide by the following briefing schedule: (1) defendant shall file its Motion for Summary Judgment by 2/7/2014; (2) plaintiff shall file its Opposition and Cross-Motion by 3/7/2014; (3) defendant shall file its Reply and Cross-Motion Opposition by 4/4/2014; and (4) plaintiff shall file its Reply to Cross-Motion by 4/18/2014. Signed by Judge Richard J. Leon on 2/3/14. (lcrjl2, ) (Entered: 02/03/2014)
2014-02-04Set/Reset Deadlines: Cross Motions due by 3/7/2014. Response to Cross Motions due by 4/4/2014. Reply to Cross Motions due by 4/18/2014. Summary Judgment motions due by 2/7/2014. Response to Motion for Summary Judgment due by 3/7/2014. Reply to Motion for Summary Judgment due by 4/4/2014. (tb, ) (Entered: 02/04/2014)
2014-02-0715MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration of James M. Kovakas, # 4 Declaration of John R. Tyler, # 5 Exhibit A, # 6 Exhibit B, # 7 Exhibit C, # 8 Exhibit D, # 9 Exhibit E)(Swinton, Nathan) (Entered: 02/07/2014)
2014-03-0716Memorandum in opposition to re 15 MOTION for Summary Judgment with Response to Statement of Material Facts Not in Dispute filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 03/07/2014)
2014-03-0717Cross MOTION for Summary Judgment with Statement of Undisputed Material Facts by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 03/07/2014)
2014-04-0418REPLY to opposition to motion re 15 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Swinton, Nathan) (Entered: 04/04/2014)
2014-04-0419Memorandum in opposition to re 17 Cross MOTION for Summary Judgment with Statement of Undisputed Material Facts filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Swinton, Nathan) (Entered: 04/04/2014)
2014-04-1020REPLY to opposition to motion re 17 Cross MOTION for Summary Judgment with Statement of Undisputed Material Facts filed by JUDICIAL WATCH, INC.. (Bekesha, Michael) (Entered: 04/10/2014)
2014-05-09MINUTE ORDER denying 8 Motion to Stay Case in Light of Lapse of Appropriations. It is hereby ORDERED that the motion is DENIED as moot. Signed by Judge Richard J. Leon on 5/9/14. (lcrjl2, ) (Entered: 05/09/2014)
2014-08-2221MEMORANDUM AND OPINION. Signed by Judge Richard J. Leon on 08/21/14. (tb, ) (Entered: 08/22/2014)
2014-08-2222ORDER: For all the reasons set forth in the Memorandum Opinion accompanying this Order; it is hereby ordered that the defendant's 15 Motion for Summary Judgment is GRANTED, and it is further ordered that the plaintiff 17 Cross Motion for Summary Judgment is DENIED, and it is further ordered that this case is DISMISSED WITH PREJUDICE. Signed by Judge Richard J. Leon on 08/22/14. (tb, ) (Entered: 08/22/2014)
2014-09-0223NOTICE OF APPEAL TO DC CIRCUIT COURT as to 22 Order on Motion for Summary Judgment,,, 21 Memorandum & Opinion by JUDICIAL WATCH, INC.. Filing fee $ 505, receipt number 0090-3824658. Fee Status: Fee Paid. Parties have been notified. (Bekesha, Michael) (Entered: 09/02/2014)
2014-09-0324Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 23 Notice of Appeal to DC Circuit Court. (znmw, ) (Entered: 09/03/2014)
2014-09-09USCA Case Number 14-5215 for 23 Notice of Appeal to DC Circuit Court, filed by JUDICIAL WATCH, INC.. (rldj) (Entered: 09/09/2014)
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by FOIA Project Staff
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