Case Detail

FOIA Project Annotation: The ruling of a federal court in New York in a suit brought by journalism professor Charles Seife for records on the press policies of the FDA brings the Second Circuit substantially closer to the position articulated by the D.C. Circuit pertaining to talking points used by agency officials when responding to inquiries from the media. While district court judges in the D.C. Circuit have consistently taken the position that records pertaining to the preparation of talking points to be used by agency officials to respond to inquiries from the press or Congress are eligible for protection under the deliberative process privilege as long as they meet the requirements of the deliberative process privilege �" that they are pre-decisional and deliberative. By contrast, the Second Circuit has taken a more nuanced approach, concluding that whereas such talking points can be privileged, there are instances in which talking points represent the final articulation of agency policy and are thus neither pre-decisional nor deliberative. In response to Seife's request, the FDA disclosed 526 pages. Seife filed suit while the agency was still processing his request. As a result, he narrowed the scope of his request. The agency subsequently disclosed 7,450 pages. Seife then disputed 119 records under Exemption 5 (privileges). Those records included three Office of Media Affairs policy announcement events and one letter sent by the FDA to the editor of the New York Times. The OMA policy announcement events included an August 2010 release by the FDA's Center for Devices and Radiological Health Task Force recommendations relating to CDRH regulatory decision making. The second announcement event was a February 2014 launch of the FDA's "Real Cost Campaign," a marketing campaign aimed at preventing tobacco use by at-risk youth. The third event was the April 2014 announcement of the agency's "Tobacco Deeming Rule," which proposed extending the FDA's regulatory authority to include all tobacco products. The letter to the editor of the New York Times dealt with an article in the Times that concerned the proposed Tobacco Deeming Rule. The records withheld by the FDA included draft scripts and draft key messages for press interactions, draft anticipated questions and proposed answers for the announcement events, draft communications plans, a strategy memorandum, and email discussions about these four events. Judge Laura Swain explained that "the core of the parties' dispute is whether documents that relate to the formulation of the FDA's communications strategies and decisions in connection with public announcements of certain substantive policies are covered by the [deliberative process privilege] and therefore exempt from disclosure. Courts have referred to such documents and the communications decisions to which they relate as 'messaging' documents and decisions, and the Court will do so here. The key issue in this case is whether messaging decisions are among the kinds of agency decisions that Exemption 5 was meant to enhance through confidential deliberation." She noted that "Plaintiff argues that messaging decisions (which he also refers to as 'spinning') generally are not protected by the Deliberative Process Privilege unless the messaging decision would reveal deliberations about another substantive policy decision facing the agency. Defendant on the other hand, argues that messaging records may fall within the Deliberative Process Privilege 'regardless of whether they also reflect deliberations regarding substantive agency policy' because messaging discussions 'can be just as deliberative as other agency decision-making.'" Swain then pointed out the way in which Second Circuit district court judges had treated draft messaging records in the past. Indicating that "courts in this District remain split over the scope of the Privilege," she noted that "historically, courts within this District have taken the approach endorsed by Plaintiff, finding that 'communications concerning how to present agency policies to the press or public. . . typically do not qualify as substantive policy decisions protected by the deliberative process privilege,' and those records are only exempt from disclosure if they 'would reveal the status of internal agency deliberations on substantive policy matters.'" However, she noted that in Seife v. Dept of State (Seife I), 298 F. Supp. 3d 592 (S.D.N.Y., 2018), an earlier case involving Seife's FOIA requests to the Department of State for similar records about the State Department's interactions with the media, "a court in this District endorsed a broader application of the Privilege that is employed by district courts in the District of Columbia. . .finding that messaging decisions are eligible for protection under the Deliberative Process Privilege because 'an agency's decision regarding how to present its substantive policies to the public often involves the evaluation of alternative public relations policies, policies which. . .are audience-sensitive and must anticipate public reaction.'" Swain noted that in two recent district court decisions �" National Day Laborer Organizing Network v. U.S. Customs and Immigration, 486 F. Supp. 3d 669 (S.D.N.Y. 2020) and New York v. Dept of Justice, 2018 WL 4853891 (S.D.N.Y, Oct. 5, 2018) �" district court judges in the Southern District of New York had established an alternative, recognizing that the deliberative process privilege could apply to messaging records unless they "amount to little more than deliberations over how to spin a prior decision, or merely reflect an effort to ensure that an agency's statement is consistent with a prior decision." She explained that "this approach's recognition that messaging decisions reflecting deliberations about how best to communicate a not-yet-finalized or not-yet-announced policy decision can be protected provides an appropriate threshold question for analysis of the current dispute, particularly in light of the testimony proffered by the FDA that messaging communications are central to the agency's public health mission of educating and informing the public about ongoing health and the agency's responses to those concerns." Having found the withheld records were eligible for protection under the deliberative process privilege, Swain moved on to assess whether they qualified for the privilege. She upheld all of the agency's claims except for one dealing with a letter to the New York Times regarding its coverage of the Tobacco Deeming Rule. Swain noted that "this messaging document reflects an effort to ensure that the newspaper's reporting on the proposed rule and announcement was consistent with the information the agency had provided to the public on April 24, 2014, and thus concerned an already-completed messaging policy decision." Seife argued that the agency had failed to show that it had met the foreseeable harm standard. However, Swain pointed out that "plaintiff's argument that the foreseeable harm requirement applies to pre-2016 FOIA requests is inconsistent with the plain language of the [FOIA Improvement Act] and with persuasive decisions within the District holding that the FIA imposed 'an independent and meaningful requirement' on agencies to justify withholding documents pursuant to FOIA exemptions. Accordingly, the FIA's foreseeable harm standard is inapplicable to Plaintiff's FOIA request."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2015-07-14	1	FILING ERROR - DEFICIENT PLEADING - FILED AGAINST PARTY ERROR COMPLAINT against Charles Seife. (Filing Fee $ 400.00, Receipt Number 0208-11152567)Document filed by Charles Seife.(Bahr, David) Modified on 7/15/2015 (dgo). (Entered: 07/14/2015)
2015-07-14	2	FILING ERROR - DEFICIENT PLEADING - SIGNATURE ERROR - CIVIL COVER SHEET filed. (Bahr, David) Modified on 7/15/2015 (dgo). (Entered: 07/14/2015)
2015-07-14	3	REQUEST FOR ISSUANCE OF SUMMONS as to United States Food and Drug Administration, re: 1 Complaint. Document filed by Charles Seife. (Bahr, David) (Entered: 07/14/2015)
2015-07-14	4	FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for David A. Bahr to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-11152818. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Charles Seife. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Text of Proposed Order)(Bahr, David) Modified on 7/15/2015 (sdi). (Entered: 07/14/2015)
2015-07-15		>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. 4 MOTION for David A. Bahr to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-11152818. Motion and supporting papers to be reviewed by Clerk's Office staff. .. The filing is deficient for the following reason(s): missing Certificate of Good Standing from Supreme Court of Oregon;. Re-file the motion as a Corrected Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order.. (sdi) (Entered: 07/15/2015)
2015-07-15		***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney David Alan Bahr to RE-FILE Document No. 1 Complaint. The filing is deficient for the following reason(s): the wrong party/parties whom the pleading is against were selected;. Re-file the pleading using the event type Complaint found under the event list Complaints and Other Initiating Documents - attach the correct signed PDF - select the individually named filer/filers - select the individually named party/parties the pleading is against. (dgo) (Entered: 07/15/2015)
2015-07-15		***NOTICE TO ATTORNEY REGARDING DEFICIENT CIVIL COVER SHEET. Notice to attorney David Alan Bahr to RE-FILE Document No. 2 Civil Cover Sheet. The filing is deficient for the following reason(s): No signature;. Re-file the document using the event type Civil Cover Sheet found under the event list Other Documents and attach the correct PDF. (dgo) (Entered: 07/15/2015)
2015-07-15		***NOTICE TO ATTORNEY REGARDING CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney David Alan Bahr. The following case opening statistical information was erroneously selected/entered: Arbitration code e (Exempt); Fee Status code due (due);. The following correction(s) have been made to your case entry: the Arbitration code has been deleted; the Fee Status code has been modified to pd (paid);. (dgo) (Entered: 07/15/2015)
2015-07-15		CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Laura Taylor Swain. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php . (dgo) (Entered: 07/15/2015)
2015-07-15		Magistrate Judge Ronald L. Ellis is so designated. (dgo) (Entered: 07/15/2015)
2015-07-15		Case Designated ECF. (dgo) (Entered: 07/15/2015)
2015-07-15	5	CIVIL COVER SHEET filed. (Bahr, David) (Entered: 07/15/2015)
2015-07-15	6	COMPLAINT against United States Food and Drug Administration. Document filed by Charles Seife.(Bahr, David) (Entered: 07/15/2015)
2015-07-24	7	MOTION for David A. Bahr to Appear Pro Hac Vice (Corrected) . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Charles Seife. (Attachments: # 1 Exhibit Certificate of Good Standing from Oregon Supreme Court, # 2 Text of Proposed Order Proposed Order)(Bahr, David) (Entered: 07/24/2015)
2015-07-27		>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 7 MOTION for David A. Bahr to Appear Pro Hac Vice (Corrected) . Motion and supporting papers to be reviewed by Clerk's Office staff. . The document has been reviewed and there are no deficiencies. (bcu) (Entered: 07/27/2015)
2015-08-05	8	INITIAL CONFERENCE ORDER: Initial Conference set for 10/23/2015 at 12:00 PM in Courtroom 12D, 500 Pearl Street, New York, NY 10007 before Judge Laura Taylor Swain. (See Order.) (Signed by Judge Laura Taylor Swain on 8/5/2015) (ajs) (Entered: 08/05/2015)
2015-08-05	9	ORDER FOR ADMISSION PRO HAC VICE granting 7 Motion for David A. Bahr to Appear Pro Hac Vice. DE # 7 resolved. (Signed by Judge Laura Taylor Swain on 8/5/2015) (ajs) (Entered: 08/05/2015)
2015-08-05	10	ELECTRONIC SUMMONS ISSUED as to United States Food and Drug Administration. (dgo) (Entered: 08/05/2015)
2015-08-24	11	NOTICE OF APPEARANCE by Jean-David Barnea on behalf of United States Food and Drug Administration. (Barnea, Jean-David) (Entered: 08/24/2015)
2015-08-26	12	LETTER MOTION for Extension of Time to File Answer and Other Relief addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 8/26/15. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 08/26/2015)
2015-08-31	13	ORDER granting 12 Letter Motion for Extension of Time to Answer re 6 Complaint, and Other Relief. The request for extension of time to respond is granted. The request for permission for Plaintiff's counsel to appear telephonically is granted. Plaintiff's counsel must contact the Courtroom Deputy (212 805 0424) by October 21, 2015 for call-in instructions. The request for permission to forego discovery scheduling proposals in the pre-conference submission is granted. The submission must nonetheless address jurisdiction, basis of claims and defenses, disputed and undisputed legal and factual issues, prospects for consensual resolution, consent to transfer to magistrate judge and all other such relevant matters. DE # 12 resolved. United States Food and Drug Administration answer due 10/13/2015. (Signed by Judge Laura Taylor Swain on 8/31/2015) (kko) (Entered: 08/31/2015)
2015-10-13	14	ANSWER to 6 Complaint. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 10/13/2015)
2015-10-16	15	INITIAL REPORT OF PARTIES BEFORE PRETRIAL CONFERENCE. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 10/16/2015)
2015-10-23		Minute Entry for proceedings held before Judge Laura Taylor Swain: Initial Pretrial Conference held on 10/23/2015. IPTC held and adj to 1/29/2016 at 10:15am. Case is placed on the suspense calendar until further notice. Parties are to submit a status report to the Court by 1/29/2016 as to a settlement, the continuation of the case on suspense or removing the case from suspense. The status report will be due every March 1, June 1, September 1 and January 1. ( Initial Conference set for 1/29/2016 at 10:15 AM in Courtroom 12D, 500 Pearl Street, New York, NY 10007 before Judge Laura Taylor Swain.) (lan) (Entered: 10/23/2015)
2015-10-30	16	STIPULATION AND ORDER REGARDING DOCUMENT SEARCHES AND PRODUCTIONS: It is hereby STIPULATED and AGREED between the Parties and ORDERED by the Court as follows: 1. Other than as provided herein, all claims are resolved except for those relating to the adequacy of FDA's searches, the propriety of FDA's withholdings, and compliance with this Stipulation. 2. FDA will make monthly productions to Plaintiff in response to the Requests, beginning no later than November 30, 2015, until it completes its response to all Requests. 9. Nothing in this Stipulation and Order, including the fact of its entry, should be taken as a concession by FDA that Plaintiff has "substantially prevailed" in this action in whole or in part, as that term is used in 5 U.S.C. § 552(a)(4)(E). 10. The Clerk of the Court is directed to place this case on the suspense docket. 11. The status conference scheduled for January 29, 2016, at 10:15 a.m. is hereby adjourned sine die. 12. The Parties shall submit joint status reports to the Court every three months beginning March 1, 2016, by letter filed on ECF, in which they will inform the Court of the status of FDA's productions pursuant to this Stipulation and Order, and indicate their views on whether the case should continue to remain on the suspense docket, restored to the active docket of the Court, or dismissed. (As further set forth in this Order.) (Signed by Judge Laura Taylor Swain on 10/29/2015) (spo) (Entered: 10/30/2015)
2016-03-01	17	JOINT LETTER addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 3/1/16 re: Status Update. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 03/01/2016)
2016-03-02	18	MEMO ENDORSEMENT on re: 17 Letter re: Status Update, filed by United States Food and Drug Administration. ENDORSEMENT: The case will remain on suspense pending the next timely status report. (Signed by Judge Laura Taylor Swain on 3/1/2016) (spo) (Entered: 03/02/2016)
2016-06-01	19	JOINT LETTER addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 6/1/16 re: Status Report re FDA Productions. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 06/01/2016)
2016-06-02	20	MEMO ENDORSEMENT on re: 19 Letter filed by United States Food and Drug Administration. ENDORSEMENT: The case will remain on the suspense docket pending the next timely report. (Signed by Judge Laura Taylor Swain on 6/2/2016) (tn) (Entered: 06/02/2016)
2016-08-31	21	LETTER addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 8/31/16 re: Status Report. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 08/31/2016)
2016-09-07	22	MEMO ENDORSEMENT on re: 21 Letter filed by United States Food and Drug Administration. ENDORSEMENT: SO ORDERED. (Signed by Judge Laura Taylor Swain on 9/6/2016) (cf) (Entered: 09/07/2016)
2016-12-01	23	LETTER addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 12/1/16 re: Status Report. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 12/01/2016)
2016-12-05	24	MEMO ENDORSEMENT on re: 23 Letter filed by United States Food and Drug Administration. ENDORSEMENT: The case will remain on suspense pending the next timely status report. SO ORDERED. (Signed by Judge Laura Taylor Swain on 12/02/2016) (ama) (Entered: 12/05/2016)
2017-02-09	25	JOINT LETTER addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 2/9/17 re: February 2017 Status Report. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 02/09/2017)
2017-02-10	26	MEMO ENDORSEMENT on re: 25 Letter filed by United States Food and Drug Administration. ENDORSEMENT: The case will remain on the suspense docket pending the next timely report. (Signed by Judge Laura Taylor Swain on 2/10/2017) (cf) (Entered: 02/10/2017)
2017-05-01	27	JOINT LETTER addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 5/1/17 re: Status Report. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 05/01/2017)
2017-05-02	28	MEMO ENDORSEMENT: on re: 27 Letter filed by United States Food and Drug Administration. ENDORSEMENT: The case will remain on suspense pending the next timely status report. (Signed by Judge Laura Taylor Swain on 5/2/2017) (ap) (Entered: 05/02/2017)
2017-08-01	29	JOINT LETTER addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 8/1/17 re: Status Report. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 08/01/2017)
2017-08-03	30	MEMO ENDORSEMENT on re: 29 Letter filed by United States Food and Drug Administration. ENDORSEMENT: SO ORDERED. (Signed by Judge Laura Taylor Swain on 8/3/2017) (cf) (Entered: 08/03/2017)
2017-10-31	31	JOINT LETTER addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 10/31/17 re: Case Status. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 10/31/2017)
2017-11-02	32	MEMO ENDORSEMENT: on re: 31 Letter filed by United States Food and Drug Administration. ENDORSEMENT: The Clerk of Court is requested to restore this case to the active docket. The parties must file a status report by December 15, 2017. DE #31 resolved. (Signed by Judge Laura Taylor Swain on 11/1/2017) (ap) (Entered: 11/02/2017)
2017-12-14	33	STATUS REPORT. on behalf of both parties Document filed by Charles Seife.(Bahr, David) (Entered: 12/14/2017)
2017-12-20	34	MEMO ENDORSEMENT: on re: 33 Status Report filed by Charles Seife. ENDORSEMENT: The requested extension of time for submission of a status report is Granted. DE # 33 resolved. SO ORDERED. (Signed by Judge Laura Taylor Swain on 12/20/2017) (ama) (Entered: 12/20/2017)
2018-01-29	35	JOINT LETTER addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 1/29/18 re: Status Report. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 01/29/2018)
2018-01-30	36	MEMO ENDORSEMENT: on re: 35 Letter filed by United States Food and Drug Administration. ENDORSEMENT: A further status report must be filed by March 15, 2018. SO ORDERED. (Signed by Judge Laura Taylor Swain on 1/30/2018) (ama) (Entered: 01/30/2018)
2018-03-13	37	JOINT LETTER addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 3/13/18 re: Status Report. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 03/13/2018)
2018-03-14	38	MEMO ENDORSEMENT: on re: 37 Letter filed by United States Food and Drug Administration. ENDORSEMENT: The parties must provide a further status report by April 30, 2018. De #37 resolved. (Signed by Judge Laura Taylor Swain on 3/14/2018) (ap) (Entered: 03/14/2018)
2018-04-30	39	STATUS REPORT. on behalf of both parties Document filed by Charles Seife.(Bahr, David) (Entered: 04/30/2018)
2018-05-03	40	MEMO ENDORSEMENT: on re: 39 Status Report filed by Charles Seife. ENDORSEMENT: The parties must file the next status report by June 14, 2018. SO ORDERED. (Signed by Judge Laura Taylor Swain on 5/03/2018) (ama) (Entered: 05/03/2018)
2018-06-13	41	STATUS REPORT. Joint Case Status Report Document filed by Charles Seife.(Bahr, David) (Entered: 06/13/2018)
2018-06-19	42	MEMO ENDORSEMENT: on re: 41 Status Report filed by Charles Seife. ENDORSEMENT: The requested extension is Granted. DE # 41 resolved. SO ORDERED. (Signed by Judge Laura Taylor Swain on 6/18/2018) (ama) (Entered: 06/19/2018)
2018-07-27	43	STATUS REPORT. Joint Case Status Report Document filed by Charles Seife.(Bahr, David) (Entered: 07/27/2018)
2018-07-30	44	MEMO ENDORSEMENT on re: 43 Status Report filed by Charles Seife. ENDORSEMENT: The request is granted. (Signed by Judge Laura Taylor Swain on 7/30/2018) (rj) (Entered: 07/30/2018)
2018-09-13	45	LETTER addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 9/13/18 re: Status Report. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 09/13/2018)
2018-09-18	46	MEMO ENDORSEMENT: on re: 45 Letter filed by United States Food and Drug Administration. ENDORSEMENT: The next status report must be filed by November 30, 2018. DE # 45 resolved. SO ORDERED. (Signed by Judge Laura Taylor Swain on 9/17/2018) (ama) (Entered: 09/18/2018)
2018-11-30	47	LETTER addressed to Judge Laura Taylor Swain from David Bahr dated 11/30/18 re: Status Report. Document filed by Charles Seife.(Bahr, David) (Entered: 11/30/2018)
2018-12-03	48	MEMO ENDORSEMENT: on re: 47 Letter filed by Charles Seife. ENDORSEMENT: The requested extension is Granted. The Court extends its condolences. DE # 47. SO ORDERED. (Signed by Judge Laura Taylor Swain on 12/03/2018) (ama) (Entered: 12/03/2018)
2018-12-21	49	LETTER addressed to Judge Laura Taylor Swain from David Bahr dated 12/21/18 re: Joint Case Status Report. Document filed by Charles Seife.(Bahr, David) (Entered: 12/21/2018)
2018-12-26	50	MEMO ENDORSEMENT: on re: 49 Letter filed by Charles Seife. ENDORSEMENT: The request is Granted, with thanks for the holiday wishes and the same in return. DE # 49 resolved. SO ORDERED. (Signed by Judge Laura Taylor Swain on 12/26/2018) (ama) (Entered: 12/26/2018)
2018-12-27	51	STANDING ORDER M10-468: The United States Attorney's Office shall notify the Court immediately upon the restoration of Department of Justice funding. (As further set forth in this Order.) (Signed by Judge Colleen McMahon on 12/27/2018) (anc) (Entered: 01/02/2019)
2018-12-27		Case Stayed. (anc) (Entered: 01/14/2019)
2019-02-19	52	JOINT LETTER addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 2/19/19 re: Tolling of Case Deadlines. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 02/19/2019)
2019-02-25	53	MEMO ENDORSEMENT on re: 52 Letter filed by United States Food and Drug Administration. ENDORSEMENT: The deadline is March 15, 2019. SO ORDERED. (Signed by Judge Laura Taylor Swain on 2/25/2019) (anc) (Entered: 02/25/2019)
2019-03-14	54	LETTER addressed to Judge Laura Taylor Swain from David Bahr dated 3/14/19 re: Joint Case Status Report. Document filed by Charles Seife.(Bahr, David) (Entered: 03/15/2019)
2019-03-15	55	MEMO ENDORSEMENT: on re: 54 Letter filed by Charles Seife. ENDORSEMENT: The request is Granted. SO ORDERED. (Signed by Judge Laura Taylor Swain on 3/15/2019) (ama) (Entered: 03/15/2019)
2019-04-24	56	STATUS REPORT. Joint Case Status Report Document filed by Charles Seife.(Bahr, David) (Entered: 04/24/2019)
2019-04-26	57	MEMO ENDORSEMENT on re: 56 Status Report filed by Charles Seife. ENDORSEMENT: The request is granted. The next status report must be filed by May 30, 2019. DE #56 resolved. SO ORDERED. (Signed by Judge Laura Taylor Swain on 4/26/2019) (kv) (Entered: 04/26/2019)
2019-05-30	58	JOINT LETTER addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 5/30/19 re: Status Report and Proposed Briefing Schedule. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 05/30/2019)
2019-05-31	59	MEMO ENDORSEMENT: on re: 58 Letter filed by United States Food and Drug Administration. ENDORSEMENT: The request for approval is Denied, without prejudice to submission of a revised schedule under which briefing commences after September 1, 2019. DE # 58 resolved. SO ORDERED. (Signed by Judge Laura Taylor Swain on 5/30/2019) (ama) (Entered: 05/31/2019)
2019-06-05	60	JOINT LETTER addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 6/5/19 re: Revised Proposed Briefing Schedule. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 06/05/2019)
2019-06-11	61	MEMO ENDORSEMENT: on re: 60 Letter filed by United States Food and Drug Administration. ENDORSEMENT: The proposed schedule is approved. DE # 60 resolved. SO ORDERED., ( Cross Motions due by 10/21/2019., Motions due by 9/6/2019., Responses due by 11/20/2019, Replies due by 12/16/2019.) (Signed by Judge Laura Taylor Swain on 6/07/2019) (ama) (Entered: 06/11/2019)
2019-08-07	62	JOINT LETTER MOTION for Extension of Time for SJ Briefing addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 8/7/19. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 08/07/2019)
2019-08-08	63	ORDER granting 62 Letter Motion for Extension of Time: The revised proposed schedule is approved. DE #62 resolved. (Signed by Judge Laura Taylor Swain on 8/8/2019) (jwh) (Entered: 08/08/2019)
2019-08-08		Set/Reset Deadlines: Cross Motions due by 11/20/2019. Motions due by 10/7/2019. Responses due by 12/20/2019 Replies due by 1/16/2020. (jwh) (Entered: 08/08/2019)
2019-08-28	64	JOINT LETTER MOTION for Extension of Time re SJ Briefing Schedule addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 8/28/19. Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 08/28/2019)
2019-09-04	65	ORDER: granting 64 Letter Motion for Extension of Time. The requested extensions are Granted and the above schedule is approved. DE # 64 resolved. SO ORDERED. Cross Motions due by 12/20/2019. Motions due by 11/7/2019. (Signed by Judge Laura Taylor Swain on 9/04/2019) (ama) (Entered: 09/04/2019)
2019-09-04		Set/Reset Deadlines: Responses due by 1/21/2020 Replies due by 2/17/2020. (ama) (Entered: 09/04/2019)
2019-11-07	66	MOTION for Summary Judgment . Document filed by United States Food and Drug Administration.(Barnea, Jean-David) (Entered: 11/07/2019)
2019-11-07	67	MEMORANDUM OF LAW in Support re: 66 MOTION for Summary Judgment . . Document filed by United States Food and Drug Administration. (Barnea, Jean-David) (Entered: 11/07/2019)
2019-11-07	68	DECLARATION of Sarah B. Kotler in Support re: 66 MOTION for Summary Judgment .. Document filed by United States Food and Drug Administration. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F (Vaughn Index), # 7 Exhibit G (part 1), # 8 Exhibit G (part 2))(Barnea, Jean-David) (Entered: 11/07/2019)
2019-12-04	69	JOINT LETTER MOTION for Extension of Time re SJ Briefing Schedule addressed to Judge Laura Taylor Swain from David Bahr dated December 4, 2019. Document filed by Charles Seife.(Bahr, David) (Entered: 12/04/2019)
2019-12-05	70	ORDER: granting 69 Letter Motion for Extension of Time. The proposed revised schedule is approved. DE # 69 resolved. SO ORDERED. (Signed by Judge Laura Taylor Swain on 12/05/2019) (ama) (Entered: 12/05/2019)
2019-12-05		Set/Reset Deadlines: Cross Motions due by 1/13/2020. Responses due by 2/14/2020 Replies due by 3/13/2020. (ama) (Entered: 12/05/2019)
2020-01-07	71	JOINT LETTER MOTION for Extension of Time re SJ Briefing Schedule addressed to Judge Laura Taylor Swain from David Bahr dated 1/6/2020. Document filed by Charles Seife.(Bahr, David) (Entered: 01/07/2020)
2020-01-08	72	ORDER: granting 71 Letter Motion for Extension of Time. The proposed revised schedule is approved. DE # 71 resolved. SO ORDERED. Cross Motions due by 1/20/2020. Motions due by 1/20/2020. (Signed by Judge Laura Taylor Swain on 1/08/2020) (ama) (Entered: 01/08/2020)
2020-01-08		Set/Reset Deadlines: Responses due by 2/21/2020 Replies due by 3/20/2020. (ama) (Entered: 01/08/2020)
2020-01-21	73	CROSS MOTION for Summary Judgment and Response to Defendant's Motion for Summary Judgment . Document filed by Charles Seife. Responses due by 2/21/2020(Bahr, David) (Entered: 01/21/2020)
2020-01-21	74	MEMORANDUM OF LAW in Support re: 73 CROSS MOTION for Summary Judgment and Response to Defendant's Motion for Summary Judgment ., 66 MOTION for Summary Judgment . . Document filed by Charles Seife. (Attachments: # 1 Affidavit Declration of Charles Seife in Support of Cross-Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment)(Bahr, David) (Entered: 01/21/2020)
2020-02-14	75	JOINT LETTER MOTION for Extension of Time to File Response/Reply as to 67 Memorandum of Law in Support of Motion, 74 Memorandum of Law in Support of Motion, addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 2/14/20. Document filed by United States Food and Drug Administration..(Barnea, Jean-David) (Entered: 02/14/2020)
2020-02-14	76	ORDER: granting 75 Letter Motion for Extension of Time to File Response/Reply re 75 JOINT LETTER MOTION for Extension of Time to File Response/Reply as to 67 Memorandum of Law in Support of Motion, 74 Memorandum of Law in Support of Motion, addressed to Judge Laura Taylor Swain from AUSA Jean-David Barnea dated 2/1. The requested extension is Granted. DE # 75 resolved. SO ORDERED. Responses due by 3/6/2020 Replies due by 4/10/2020. (Signed by Judge Laura Taylor Swain on 2/14/2020) (ama) (Entered: 02/14/2020)
2020-03-06	77	REPLY MEMORANDUM OF LAW in Support re: 66 MOTION for Summary Judgment . and in opposition to Plaintiff's Cross-Motion for Summary Judgment . Document filed by United States Food and Drug Administration..(Barnea, Jean-David) (Entered: 03/06/2020)
2020-03-06	78	DECLARATION of Heidi Rebello in Support re: 66 MOTION for Summary Judgment .. Document filed by United States Food and Drug Administration..(Barnea, Jean-David) (Entered: 03/06/2020)
2020-03-30	79	CONSENT LETTER MOTION for Extension of Time to File Response/Reply as to 77 Reply Memorandum of Law in Support of Motion, for Summary Judgment addressed to Judge Laura Taylor Swain from David Bahr dated 03/30/20. Document filed by Charles Seife..(Bahr, David) (Entered: 03/30/2020)
2020-03-30	80	ORDER granting 79 CONSENT LETTER MOTION for Extension of Time to File Response/Reply as to 77 Reply Memorandum of Law in Support of Motion, for Summary Judgment. The foregoing extension request is granted. DE# 79 resolved. SO ORDERED. Replies due by 5/1/2020. (Signed by Judge Laura Taylor Swain on 3/30/2020) (jca) (Entered: 03/30/2020)
2020-04-28	81	CONSENT LETTER MOTION for Extension of Time to File Response/Reply as to 77 Reply Memorandum of Law in Support of Motion, for Summary Judgment addressed to Judge Laura Taylor Swain from David Bahr dated April 28 2020. Document filed by Charles Seife..(Bahr, David) (Entered: 04/28/2020)
2020-04-28	82	ORDER granting 81 Letter Motion for Extension of Time to File Response/Reply re 81 CONSENT LETTER MOTION for Extension of Time to File Response/Reply as to 77 Reply Memorandum of Law in Support of Motion, for Summary Judgment addressed to Judge Laura Taylor Swain from David Bahr dated April 28 2020. The requested extension is Granted. The Court extends to counsel its good wishes for a thorough recovery. DE # 81 resolved. SO ORDERED. Replies due by 5/12/2020. (Signed by Judge Laura Taylor Swain on 4/28/2020) (ama) (Entered: 04/28/2020)
2020-05-12	83	REPLY MEMORANDUM OF LAW in Support re: 73 CROSS MOTION for Summary Judgment and Response to Defendant's Motion for Summary Judgment . . Document filed by Charles Seife..(Bahr, David) (Entered: 05/12/2020)
2021-08-10	84	MEMORANDUM OPINION AND ORDER: re: 73 CROSS MOTION for Summary Judgment and Response to Defendant's Motion for Summary Judgment . filed by Charles Seife, 66 MOTION for Summary Judgment . filed by United States Food and Drug Administration. For the foregoing reasons, Defendant's motion for summary judgment is denied as to the documents listed at entries 64-68 and 105 of the Vaughn index, and is otherwise granted as set forth above. Plaintiff's cross-motion for summary judgment is granted as to entries 64-68 and 105 of the Vaughn index, and is otherwise denied. Defendant is directed to produce the documents corresponding to entries 64-68 and 105 of the Vaughn index within 14 days of the date of this Memorandum Opinion and Order. The Clerk of Court is respectfully directed to enter judgment in accordance with this decision and close this case. The Memorandum Opinion and Order resolves docket entry numbers 66 and 73. So Ordered. (Signed by Judge Laura Taylor Swain on 8/10/2021) (js) Transmission to Orders and Judgments Clerk for processing. (Entered: 08/10/2021)
2021-08-10	85	CLERK'S JUDGMENT re: 84 Memorandum & Opinion. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Memorandum Opinion and Order dated August 10, 2021, Defendant's motion for summary judgment is denied as to the documents listed at entries 64-68 and 105 of the Vaughn index, and is otherwise granted as set forth above. Plaintiff's cross-motion for summary judgment is granted as to entries 64-68 and 105 of the Vaughn index, and is otherwise denied; accordingly, this case is closed. (Signed by Clerk of Court Ruby Krajick on 8/10/2021) (Attachments: # 1 Notice of Right to Appeal) (dt) (Entered: 08/10/2021)
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