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Case TitleThe New York Times Company, et al v. United States Department of the Treasury
DistrictSouthern District of New York
CityFoley Square
Case Number1:2015cv05740
Date Filed2015-07-22
Date Closed2016-10-20
JudgeJudge Edgardo Ramos
PlaintiffThe New York Times Company,
PlaintiffCharlie Savage
Case DescriptionNew York Times reporter Charlie Savage submitted a FOIA request to the Department of Treasury for records concerning the legal basis for Treasury's determination pertaining to when the Foreign Intelligence Surveillance Act notification provisions apply to the Office of Foreign Assets Control. The agency located one document which it withheld under Exemption 5 (privileges). Savage filed an administrative appeal which was denied. The New York Times then filed suit.
Complaint issues: Litigation - Attorney's fees, Exemption 5 - Privileges - Waiver of privilege

DefendantUnited States Department of the Treasury
Documents
Docket
Complaint
Opinion/Order [38]
FOIA Project Annotation: A federal court in New York has ruled that the New York Times is not entitled to discovery concerning the Treasury Department's reasons for withholding a memo concerning whether or not the Office of Foreign Assets Control was required to provide notice to individuals or groups listed as foreign terrorists when it relied on warrantless surveillance as the basis for the designation. In response to reporter Charlie Savage's FOIA request, OFAC located a 13-page memo, which it withheld under Exemption 5 (privileges). Savage argued the memo constituted the working law of the agency and must be disclosed. At this stage of the litigation, however, the Times asked for discovery to explore what it considered inconsistencies in the agency's affidavits concerning whether or not the memo was actually responsive to Savage's request. Judge Edgardo Ramos indicated that "this issue is surely material. If the record showed that the explanation in [the affidavit submitted by the general counsel's office] was not Treasury's actual contemporaneous reasoning, it could suggest that Treasury originally determined that the Memo contained 'governing legal protocol' and thus the agency's working law, potentially providing a basis for the Court to order disclosure." But Ramos noted that "what is less clear is whether this material issue is actually in dispute based on the current state of the record." He pointed out that the general counsel's affidavit and the affidavit from the FOIA officer confirmed that "it was in fact [the general counsel's office that] made the original responsiveness determination. Nothing in these two declarations suggests that two different responsiveness determinations were made, one at the time the Request was submitted and another in this litigation. The Times, therefore, is not really identifying a contradiction or inconsistency, so much as it is asking the Court to infer bad faith from the fact that [the FOIA Officer's affidavit] did not explicate the reasoning later provided in the [general counsel's office affidavit]. This provides only a weak inference of bad faith, at best, and thus the Court declines to order depositions on that basis." But Ramos agreed with the Times that the FOIA Officer's affidavit was not specific enough and left a gap in the factual record. Ramos ordered the FOIA Officer to provide an additional affidavit "describing the specific factual basis that he relied upon to deem the Memo responsive, including but not limited to facts provided to him by [the general counsel's office] in its recommendation."
Issues: Litigation - Vaughn index, Litigation - Discovery
Opinion/Order [48]
FOIA Project Annotation: A federal court in New York has ruled that there remain questions as to whether the Department of the Treasury conducted an adequate search for records concerning any governing legal protocol pertaining to whether the notice provisions of the Foreign Intelligence Surveillance Act applied to sanction decisions made by the Office of Foreign Assets Control. OFAC told New York Times reporter Charlie Savage that it found a draft containing legal analysis but because the memo was merely a draft it was protected under Exemption 5 (privileges). The Times challenged the basis for the agency's conclusion for withholding the document, asking for discovery. Instead, the court told OFAC to provide a better explanation of how it concluded that the memo was exempt. Apparently accepting that the memo was protected by Exemption 5, the Times contended the agency's search was incomplete. The Times argued that that an agency attorney had not actually conducted a search and that there was no information about searches conducted by four other agency officials. The court indicated that "regarding the four specific factors that the Times raises, the first two go to the adequacy of the search, and Treasury should address these issues in its supplemental submissions. But the last two, while perhaps illuminative of why the search did not produce a document containing 'governing legal protocol,' do not necessarily speak to whether the search's methodology was reasonable, and Treasury is not required to address them in supplemental submissions. That said, additional context about whether 'governing legal protocol' exists in document form may very well buttress Treasury's defense of its search methodology."
Issues: Adequacy - Search
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2015-07-221COMPLAINT against United States Department of the Treasury. (Filing Fee $ 400.00, Receipt Number 0208-11182712)Document filed by The New York Times Company,, Charlie Savage.(Kutner, Jeremy) (Entered: 07/22/2015)
2015-07-222CIVIL COVER SHEET filed. (Kutner, Jeremy) (Entered: 07/22/2015)
2015-07-223RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Charlie Savage, The New York Times Company,.(Kutner, Jeremy) (Entered: 07/22/2015)
2015-07-224REQUEST FOR ISSUANCE OF SUMMONS as to United States Department of the Treasury, re: 1 Complaint. Document filed by Charlie Savage, The New York Times Company,. (Kutner, Jeremy) (Entered: 07/22/2015)
2015-07-225FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUESTED FILED AS TO PARTY ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Preet Bharara, re: 1 Complaint. Document filed by Charlie Savage, The New York Times Company,. (Kutner, Jeremy) (Entered: 07/22/2015)
2015-07-226FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUESTED FILED AS TO PARTY ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Loretta Lynch, re: 1 Complaint. Document filed by Charlie Savage, The New York Times Company,. (Kutner, Jeremy) (Entered: 07/22/2015)
2015-07-23CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Edgardo Ramos. 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 . (ky) (Entered: 07/23/2015)
2015-07-23Magistrate Judge James L. Cott is so designated. (ky) (Entered: 07/23/2015)
2015-07-23Case Designated ECF. (ky) (Entered: 07/23/2015)
2015-07-237ELECTRONIC SUMMONS ISSUED as to United States Department of the Treasury. (ky) (Entered: 07/23/2015)
2015-07-23***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney to RE-FILE Document No. 5 Request for Issuance of Summons, 6 Request for Issuance of Summons. The filing is deficient for the following reason(s): request of issuance of summons as to party error. (ky) (Entered: 07/23/2015)
2015-08-148NOTICE OF APPEARANCE by Dominika Natalia Tarczynska on behalf of United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 08/14/2015)
2015-08-219LETTER MOTION for Extension of Time to File Answer addressed to Judge Edgardo Ramos from Dominika Tarczynska dated August 21, 2015. Document filed by United States Department of the Treasury.(Tarczynska, Dominika) (Entered: 08/21/2015)
2015-08-2410ORDER granting 9 Letter Motion for Extension of Time to Answer re 1 Complaint. United States Department of the Treasury answer due 9/25/2015. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) (Entered: 08/24/2015)
2015-09-2511ANSWER to 1 Complaint. Document filed by United States Department of the Treasury.(Tarczynska, Dominika) (Entered: 09/25/2015)
2015-10-1312NOTICE OF INITIAL COURT CONFERENCE: Initial Conference set for 11/13/2015 at 12:10 PM in Courtroom 619, 40 Centre Street, New York, NY 10007 before Judge Edgardo Ramos. (As further set forth in this Order.) (spo) (Entered: 10/14/2015)
2015-11-1013JOINT LETTER addressed to Judge Edgardo Ramos from Jeremy Kutner dated November 10, 2015 re: Initial Case Management and Scheduling Conference. Document filed by Charlie Savage, The New York Times Company,.(Kutner, Jeremy) (Entered: 11/10/2015)
2015-11-13Minute Entry for proceedings held before Judge Edgardo Ramos: Initial Pretrial Conference held on 11/13/2015. Plaintiffs' counsel present. Defendant's counsel present. Parties granted leave to file their motions for summary judgment with the following briefing schedule: government's moving papers due December 18, 2015; plaintiffs' cross-motion due January 22, 2016; government's response and reply due February 12, 2016; and plaintiffs' reply due February 26, 2016. (Motions due by 12/18/2015. Cross Motions due by 1/22/2016. Responses due by 2/12/2016. Replies due by 2/26/2016.) (Court Reporter Eve Giniger) (jar) (Entered: 11/13/2015)
2015-11-3014LETTER addressed to Judge Edgardo Ramos from Dominika Tarczynska dated November 30, 2015 re: In Camera Review of Document At Issue In Litigation. Document filed by United States Department of the Treasury.(Tarczynska, Dominika) (Entered: 11/30/2015)
2015-12-1615CONSENT LETTER MOTION for Extension of Time to File Motion for Summary Judgment addressed to Judge Edgardo Ramos from Dominika Tarczynska dated December 16, 2015. Document filed by United States Department of the Treasury.(Tarczynska, Dominika) (Entered: 12/16/2015)
2015-12-1716ORDER granting 15 Letter Motion for Extension of Time to File Motion for Summary Judgment. Defendant's time to file its motion for summary judgment is extended to Wednesday, December 23, 2015. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) (Entered: 12/17/2015)
2015-12-2317MOTION for Summary Judgment . Document filed by United States Department of the Treasury.(Tarczynska, Dominika) (Entered: 12/23/2015)
2015-12-2318MEMORANDUM OF LAW in Support re: 17 MOTION for Summary Judgment . . Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 12/23/2015)
2015-12-2319DECLARATION of Bradley T. Smith in Support re: 17 MOTION for Summary Judgment .. Document filed by United States Department of the Treasury. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Tarczynska, Dominika) (Entered: 12/23/2015)
2015-12-2420NOTICE OF APPEARANCE by David Edward McCraw on behalf of Charlie Savage, The New York Times Company,. (McCraw, David) (Entered: 12/24/2015)
2016-01-0721MOTION for Conference Re: Proposed Motion to Take Discovery . Document filed by Charlie Savage, The New York Times Company,.(McCraw, David) (Entered: 01/07/2016)
2016-01-0822ORDER entered 21 Motion for Conference. The Government is directed to respond by Friday, January 15, 2016. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) Modified on 1/8/2016 (jar). (Entered: 01/08/2016)
2016-01-1523TRANSCRIPT of Proceedings re: CONFERENCE held on 11/13/2015 before Judge Edgardo Ramos. Court Reporter/Transcriber: Eve Giniger, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/8/2016. Redacted Transcript Deadline set for 2/19/2016. Release of Transcript Restriction set for 4/18/2016.(McGuirk, Kelly) (Entered: 01/15/2016)
2016-01-1524NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 11/13/15 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 01/15/2016)
2016-01-1525LETTER addressed to Judge Edgardo Ramos from Dominika Tarczynska dated January 15, 2016 re: Response to Plaintiffs' January 7, 2016 letter seeking pre-motion conference. Document filed by United States Department of the Treasury.(Tarczynska, Dominika) (Entered: 01/15/2016)
2016-01-1926ORDER granting 21 Letter Motion for Conference. The Court has reviewed Plaintiffs' request for leave to file a motion for further discovery (Doc. 21), and Defendant's letter response thereto (Doc. 25). The Court will forego a pre-motion conference, and hereby ORDERS the following schedule for briefing on the sole question of whether further depositions are required to ascertain the substance and consistency of Defendant's justifications for withholding the single document at issue under Exemption 5: Plaintiffs' motion, limited to ten (10) pages, is due February 2, 2016; Defendant's opposition, limited to ten (10) pages, is due February 16, 2016; Plaintiffs reply, limited to five (5) pages, is due February 23, 2016.The Court's previous briefing schedule for the parties' cross-motions for summary judgment (see Minute Entry for Nov. 13, 2015 conference, and Doc. 16), is hereby STAYED pending the Court's resolution of the discovery issue. (Signed by Judge Edgardo Ramos on 1/19/2016) (lmb) (Entered: 01/19/2016)
2016-01-19Set/Reset Deadlines: Motions due by 2/2/2016. Responses due by 2/16/2016. Replies due by 2/23/2016. (lmb) (Entered: 01/19/2016)
2016-02-0227MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d) . Document filed by Charlie Savage, The New York Times Company,.(McCraw, David) (Entered: 02/02/2016)
2016-02-0228MEMORANDUM OF LAW in Support re: 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d) . . Document filed by Charlie Savage, The New York Times Company,. (McCraw, David) (Entered: 02/02/2016)
2016-02-0229DECLARATION of David E. McCraw in Support re: 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d) .. Document filed by Charlie Savage, The New York Times Company,. (McCraw, David) (Entered: 02/02/2016)
2016-02-1030CONSENT LETTER MOTION for Extension of Time to File Response/Reply as to 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d) . addressed to Judge Edgardo Ramos from Dominika Tarczynska dated February 10, 2016. Document filed by United States Department of the Treasury.(Tarczynska, Dominika) (Entered: 02/10/2016)
2016-02-1431NOTICE of Withdrawal of Counsel. Document filed by Charlie Savage, The New York Times Company,. (McCraw, David) (Entered: 02/14/2016)
2016-02-1632ORDER granting 30 Letter Motion for Extension of Time to File Response/Reply re 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d) . Responses due by 2/23/2016. Replies due by 3/1/2016. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) (Entered: 02/16/2016)
2016-02-1633MEMO ENDORSEMENT on re: 31 NOTICE of Withdrawal of Counsel Jeremy Alexander Kutner. ENDORSEMENT: SO ORDERED. (Attorney Jeremy Alexander Kutner terminated.) (Signed by Judge Edgardo Ramos on 2/16/2016) (adc) (Entered: 02/17/2016)
2016-02-2334MEMORANDUM OF LAW in Opposition re: 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d) . . Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 02/23/2016)
2016-02-2335DECLARATION of Marshall H. Fields, Jr. in Opposition re: 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d) .. Document filed by United States Department of the Treasury. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Tarczynska, Dominika) (Entered: 02/23/2016)
2016-02-2336DECLARATION of John E. Smith in Opposition re: 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d) .. Document filed by United States Department of the Treasury. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Tarczynska, Dominika) (Entered: 02/23/2016)
2016-03-0137REPLY MEMORANDUM OF LAW in Support re: 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d) . . Document filed by Charlie Savage, The New York Times Company,. (McCraw, David) (Entered: 03/01/2016)
2016-04-2638OPINION AND ORDER #106416 re: 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d) filed by Charlie Savage, The New York Times Company. Treasury is hereby ORDERED to provide an affidavit or declaration from Marshall H. Fields, Jr. on or before May 13, 2016. The Times' cross-motion is due May 27, 2016. Treasury's response and reply is due June 10, 2016. The Times' reply is due June 24, 2016. The Times' motion is DENIED. The Clerk of the Court is respectfully directed to terminate the motion. Doc. 27. It is SO ORDERED. (As further set forth in this Order.) (Cross Motions due by 5/27/2016. Responses due by 6/10/2016, Replies due by 6/24/2016.) (Signed by Judge Edgardo Ramos on 4/26/2016) (kko) Modified on 5/2/2016 (ca). (Entered: 04/26/2016)
2016-05-1339DECLARATION of Marshall H. Fields, Jr. in Support re: 17 MOTION for Summary Judgment .. Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 05/13/2016)
2016-05-1840INTERNET CITATION NOTE: Material from decision with Internet citation re: 38 Memorandum & Opinion, Set Deadlines. (vf) (Entered: 05/18/2016)
2016-05-2641NOTICE OF APPEARANCE by Tali Ravit Leinwand on behalf of Charlie Savage, The New York Times Company,. (Leinwand, Tali) (Entered: 05/26/2016)
2016-05-2642MEMORANDUM OF LAW in Opposition re: 17 MOTION for Summary Judgment . . Document filed by Charlie Savage, The New York Times Company,. (McCraw, David) (Entered: 05/26/2016)
2016-05-2643DECLARATION of David E. McCraw in Opposition re: 17 MOTION for Summary Judgment .. Document filed by Charlie Savage, The New York Times Company,. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(McCraw, David) (Entered: 05/26/2016)
2016-06-1044REPLY MEMORANDUM OF LAW in Support re: 17 MOTION for Summary Judgment . . Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 06/10/2016)
2016-06-1045DECLARATION of Bradley T. Smith in Support re: 17 MOTION for Summary Judgment .. Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 06/10/2016)
2016-06-1746LETTER MOTION for Conference addressed to Judge Edgardo Ramos from David E. McCraw dated June 17, 2016. Document filed by Charlie Savage, The New York Times Company,.(McCraw, David) (Entered: 06/17/2016)
2016-06-2347LETTER RESPONSE in Opposition to Motion addressed to Judge Edgardo Ramos from Dominika Tarczynska dated June 23, 2016 re: 46 LETTER MOTION for Conference addressed to Judge Edgardo Ramos from David E. McCraw dated June 17, 2016. . Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 06/23/2016)
2016-08-0248OPINION AND ORDER #106662 re: 17 MOTION for Summary Judgment filed by United States Department of the Treasury, 46 LETTER MOTION for Conference addressed to Judge Edgardo Ramos from David E. McCraw dated June 17, 2016 filed by Charlie Savage, The New York Times Company. Treasury's motion for summary judgment is GRANTED as to the withholding of the Memo pursuant to FOIA Exemption 5. It is DENIED as to the adequacy of the search, with leave to renew following supplemental submissions and briefing. Treasury is directed to submit its supplemental affidavits or declarations on or before September 16, 2016. Treasury also has the option of submitting a supplemental brief on that date, but it should be no longer than fifteen (15) pages. The Times is then directed to submit its own response brief on or before October 14, 2016, to be no longer than fifteen (15) pages. Treasury's reply brief, no longer than five (5) pages, is due on or before October 28, 2016. The Clerk of the Court is respectfully directed to terminate the motion, Docs. 17, 46. It is SO ORDERED. (As further set forth in this Order.) (Signed by Judge Edgardo Ramos on 8/2/2016) (kko) Modified on 8/26/2016 (ca). (Entered: 08/03/2016)
2016-08-02Set/Reset Deadlines: Brief due by 9/16/2016. Responses to Brief due by 10/14/2016. Reply to Response to Brief due by 10/28/2016. (kko) (Entered: 08/03/2016)
2016-08-2949INTERNET CITATION NOTE: Material from decision with Internet citation re: 48 Memorandum & Opinion. (vf) (Entered: 08/29/2016)
2016-09-0850CONSENT LETTER MOTION for Extension of Time to File supplemental declarations and brief addressed to Judge Edgardo Ramos from Dominika Tarczynska dated September 8, 2016. Document filed by United States Department of the Treasury.(Tarczynska, Dominika) (Entered: 09/08/2016)
2016-09-0951NOTICE of Withdrawal of Counsel. Document filed by Charlie Savage, The New York Times Company,. (McCraw, David) (Entered: 09/09/2016)
2016-09-1252MEMO ENDORSEMENT on re: 51 Notice of Withdrawal of Counsel filed by Charlie Savage, The New York Times Company. ENDORSEMENT: SO ORDERED. Attorney Tali Ravit Leinwand terminated. (Signed by Judge Edgardo Ramos on 9/12/2016) (kko) (Entered: 09/12/2016)
2016-09-1253ORDER granting 50 Letter Motion for Extension of Time to File supplemental declarations and brief . Defendant's declarations and supplemental brief are now due by September 23, 2016. Plaintiff's response brief is due by October 21, 2016. Defendant's reply is due November 4, 2016. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) (Entered: 09/12/2016)
2016-09-2254SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 17 MOTION for Summary Judgment . . Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 09/22/2016)
2016-09-2255DECLARATION of M. William Schisa in Support re: 17 MOTION for Summary Judgment .. Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 09/22/2016)
2016-09-2256DECLARATION of Marshall H. Fields, Jr. in Support re: 17 MOTION for Summary Judgment .. Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 09/22/2016)
2016-10-2057STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL: IT IS HEREBY STIPULATED AND AGREED, by and between the parties, as follows: 1. Plaintiffs no longer wish to further contest the adequacy of Treasury's search and waive any and all claims that they now have or may hereafter acquire against Treasury, any other department or agency of the United States Government, and any officer employee, or agent of Treasury or the United States Government related to or arising out of Plaintiffs' FOIA Request. 2. This action is hereby dismissed with prejudice, with each party to bear its own fees and costs, provided that the Court shall retain jurisdiction over any issues that may arise relating to this Stipulation and Order. 3. The parties understand and agree that this Stipulation and Order contains the entire agreement between them, and that no statements, representations, promises, agreements, or negotiations, oral or otherwise, between the parties or their counsel that are not included herein shall be of any force or effect. (Signed by Judge Edgardo Ramos on 10/20/2016) (mro) (Entered: 10/21/2016)
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