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Case TitleKING & SPALDING, LLP v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES et al
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2016cv01616
Date Filed2016-08-09
Date Closed2019-07-24
JudgeJudge Amit P. Mehta
PlaintiffKING & SPALDING, LLP
Case DescriptionThe law firm of King & Spaulding submitted FOIA requests to the Department of Justice and the Department of Health and Human Services concerning Abiomed. HHS responded to the request by indicating that responsive records were protected by Exemption 7(A) (ongoing investigation or proceeding). King & Spaulding filed an administrative appeal. HHS also referred the request to FDA, which provided King & Spaulding with some records. DOJ told King & Spaulding that it had located 49 pages which were being processed. After hearing nothing further from either agency, King & Spaulding filed suit.
Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Vaughn index, Litigation - Attorney's fees

DefendantU.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
DefendantU.S. DEPARTMENT OF JUSTICE
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Opinion/Order [28]
FOIA Project Annotation: Judge Amit Mehta has ruled that the Supreme Court's holding in FCC v. AT&T, 562 U.S. 397 (2011) and Dept of Justice v. Landano, 508 U.S. 165 (1993) placed limitations on the privacy interests of companies to such an extent that it is unclear whether the FDA can claim either Exemption 7(C) (invasion of privacy concerning law enforcement records) or Exemption 7(D) (confidential sources) to withhold information that allegedly originated from a company. The law firm of King & Spaulding, representing Abiomed, which was the subject of an investigation into whether the company had engaged in off-label marketing practices based on information received from an anonymous source, filed three FOIA requests about the investigation. Although the source had not been publicly identified, Abiomed believed the anonymous source was Maquet, a rival company. The agency withheld 67 pages in full containing information that would identify the source, including the identity of an attorney representing the source. King & Spaulding argued that neither Exemption 7(C) or Exemption 7(D) applied because of the strictures in the AT&T and Landano decisions. Mehta agreed that more briefing was required for the agency to prove its case. He noted that in FCC v. AT&T, the Supreme Court held that Exemption 7(C) "does not extend to corporations," and that in Dept of Justice v. Landano, the Court indicated that an implied assurance of confidentiality may be more difficult to establish in cases where a "private institution" as opposed to an individual, cooperates in a criminal investigation. Sending the case back for further briefing on the issue, Mehta pointed out some of the concerns that needed to be addressed. "For example, if the source is an entity, does the outside lawyer acting on behalf of the source possess a personal privacy interest against disclosure of his or her identity, or does the lawyer lack a privacy interest because he or she is in fact acting on behalf of an entity that itself has no such interest? The same question pertains to an executive or employee who may be acting on behalf of the entity in providing information to the Government. By contrast, the identity of the source would likely have no impact on the privacy interests of Government personnel involved in the investigation of Abiomed or third-party individuals whose names happen to appear in the responsive records. As to those persons, the standard public-private interest balancing required under Exemption 7(C) would apply."
Issues: Exemption 7(D) - Assurance of confidentiality - Implicit, Exemption 7(C) - Invasion of privacy concerning law enforcement records
Opinion/Order [38]
FOIA Project Annotation: Judge Amit Mehta has ruled that the Department of Justice failed to show that an unidentified anonymous source is protected by Exemption 7(D) (confidential sources) and although the name of the attorney who represented the anonymous source is protected under Exemption 7(C) (invasion of privacy concerning law enforcement files), the agency has not yet shown that disclosure of the name of his law firm would be enough to identify him. The case involved a series of requests filed by the law firm of King & Spalding with the Department of Health and Human Services and the Department of Justice for records about a 2012 investigation of Abiomed, a medical device manufacturer, for off-labeling marketing practices that was started because of an anonymous tip provided by a private attorney to the U.S. Attorney's Office in Washington, D.C. The investigation ended three years later without any enforcement action. On behalf of Abiomed, King & Spalding submitted several FOIA requests and subsequently filed suit. All the requests involving HHS were resolved, but the requests to EOUSA and the Criminal Division remained unresolved. EOUSA, which handled the Abiomed investigation, withheld a total of 67 pages under Exemption 7(D) and redacted personally identifying information under Exemption 7(C) as well as Exemption 6 (invasion of privacy). King & Spalding challenged EOUSA's claim that information supplied by the anonymous source was protected under Exemption 7(D) because it was provided under an implied assurance of confidentiality. Mehta first pointed out that a four-factor test articulated by the D.C. Circuit in Roth v Dept of Justice, 642 F.3d 1161 (D.C. Cir. 2011) had fleshed out the Supreme Court's implied confidentiality test from Dept of Justice v. Landano, 508 U.S. 165 (1993), focusing on the character of the crime, the source's relationship to the crime, whether the source received payment, and whether the source had an ongoing relationship with law enforcement. Turning to the four factors from Roth, Mehta observed that the character of the crime related primarily to whether it was violent or serious in nature. DOJ tried to compare the circumstances here with Judge Colleen Kollar-Kotelly's ruling upholding a claim of implied confidentiality in Rosenberg v. Dept of Immigration & Customs Enforcement, 13 F. Supp. 3d 92 (D.D.C. 2014), which involved the raid of a meatpacking plant for use of illegal workers. Mehta rejected the comparison, noting that "suffice it to say, in terms of severity, the character of the alleged crimes at issue here " involving violations of laws relating to the promotion of off-label uses of a medical device " pales in comparison to the character of the crimes at issue in Rosenberg, which involved 'long terms incarceration and financial fraud.'" As to the source's relationship to the crime, Mehta explained that "most obviously, the court cannot make the assessment because Defendants do not know the character of the source. If for instance, the source is an Abiomed competitor, then that fact might weigh against an inference of confidentiality. The opposite would hold true if the source is an Abiomed insider." Mehta found scant evidence of any ongoing relationship with the agency. He pointed out that "these limited communications, seemingly occurring over a short period of time at the start of the investigation, do not support an 'ongoing relationship' with the law enforcement agency." Mehta rejected DOJ's reference to two non-D.C. Circuit appellate decisions upholding the confidentiality of anonymous sources. He pointed out that both cases involved unsophisticated sources who had communicated by letter. By contrast, the source here had used an attorney, suggesting that "the source is likely more sophisticated than the letter writers in [the two appellate decisions] and thus less likely to believe that mere anonymity equates to confidentiality." Finding that none of the Roth factors supported the government's implied confidentiality claim, Mehta concluded that Exemption 7(D) did not apply. Because there was no evidence of wrongdoing on the part of the government, Mehta pointed out that the lawyer's name was categorically protected by Exemption 7(C). He pointed out that DOJ had not addressed whether or not disclosure of the name of the attorney's law firm would disclose his or her identity. He sent that issue back to DOJ to address to supplement its affidavits.
Issues: Exemption 7(D) - Assurance of confidentiality - Implicit
Opinion/Order [62]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2016-08-091COMPLAINT against ALL DEFENDANTS ( Filing fee $ 400 receipt number 0090-4632777) filed by KING & SPALDING, LLP. (Attachments: # 1 Civil Cover Sheet, # 2 Summons U.S. Department of Health and Human Services, # 3 Summons U.S. Department of Justice)(Richter, John) (Entered: 08/09/2016)
2016-08-092LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by KING & SPALDING, LLP (Richter, John) (Entered: 08/09/2016)
2016-08-09Case Assigned to Judge Amit P. Mehta. (md) (Entered: 08/09/2016)
2016-08-103SUMMONS (4) Issued Electronically as to U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 08/10/2016)
2016-08-124RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/11/2016. Answer due for ALL FEDERAL DEFENDANTS by 9/10/2016. (Richter, John) (Entered: 08/12/2016)
2016-08-125RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 8/12/2016. (Richter, John) (Entered: 08/12/2016)
2016-08-126RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF JUSTICE served on 8/11/2016 (Richter, John) (Entered: 08/12/2016)
2016-08-127RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 8/11/2016 (Richter, John) (Entered: 08/12/2016)
2016-09-068NOTICE of Appearance by Jeremy S. Simon on behalf of U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE (Simon, Jeremy) (Entered: 09/06/2016)
2016-09-079Consent MOTION for Extension of Time to Answer or Otherwise Respond to Complaint by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 09/07/2016)
2016-09-07MINUTE ORDER granting 9 Consent Motion for Extension of Time to Answer or Otherwise Respond to Complaint. Defendants shall answer or otherwise respond to the Complaint on or before September 30, 2016. Signed by Judge Amit P. Mehta on 09/07/2016. (lcapm3) (Entered: 09/07/2016)
2016-09-08Set/Reset Deadlines/Hearings: Answer or other response to complaint due by 9/30/2016. (cdw) (Entered: 09/08/2016)
2016-09-3010ANSWER to Complaint by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE.(Simon, Jeremy) (Entered: 09/30/2016)
2016-09-3011ORDER: Both a Complaint and an Answer are now before the court in this FOIA case. It is hereby ordered that the parties shall meet and confer and file a Joint Status Report on or before October 14, 2016. Please see the attached Order for additional details. Signed by Judge Amit P. Mehta on 09/30/2016. (lcapm3) (Entered: 09/30/2016)
2016-09-30Set/Reset Deadlines/Hearings: Joint Status Report due by 10/14/2016. (cdw) (Entered: 10/03/2016)
2016-09-30ENTERED IN ERROR.............Set/Reset Deadlines/Hearings: Status Conference reset for 10/17/2016 at 11:30 AM in Courtroom 10 before Judge Amit P. Mehta. (cdw) Modified on 10/3/2016 (zcdw). (Entered: 10/03/2016)
2016-10-1212Unopposed MOTION for Extension of Time to File Joint Status Report by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 10/12/2016)
2016-10-13MINUTE ORDER granting 12 Motion for Extension of Time to File Joint Status Report. The parties shall submit a Joint Status Report on or before October 21, 2016. Signed by Judge Amit P. Mehta on 10/13/2016. (lcapm3) (Entered: 10/13/2016)
2016-10-13Set/Reset Deadlines/Hearings: Joint Status Report due by 10/21/2016. (cdw) (Entered: 10/13/2016)
2016-10-2113Joint STATUS REPORT and Proposed Schedule by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE. (Simon, Jeremy) (Entered: 10/21/2016)
2016-11-08MINUTE ORDER. The parties are directed to file another Joint Status Report in this matter on or before December 5, 2016, which informs the court of the status of document processing and production. By that date, absent good cause, (1) the Civil Division shall complete its review of the two boxes of documents referenced in the parties' Status Report, ECF No. 13, and produce any non-exempt records, and (2) CMS and HHS shall complete their searches and produce any non-exempt records. In their next status report, the parties shall propose a summary judgment briefing schedule, if necessary. Signed by Judge Amit P. Mehta on 11/08/2016. (lcapm3) (Entered: 11/08/2016)
2016-11-08Set/Reset Deadlines: Joint Status Report due by 12/5/2016. (mac) (Entered: 11/08/2016)
2016-12-0514Joint STATUS REPORT of the Parties and Proposed Schedule by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE. (Simon, Jeremy) (Entered: 12/05/2016)
2016-12-0515MOTION for Extension of Time to Complete Search and Processing and Release of Responsive Records by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 12/05/2016)
2016-12-0616ENTERED IN ERROR............ORDER setting the following schedule for further proceedings in this matter: Defendant shall file the Administrative Record on or before January 31, 2017; Plaintiffs shall file their Motion for Summary Judgment on or before February 28, 2017; Defendant shall file its Cross-Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment on or before March 28, 2017; Plaintiffs shall file their Opposition to Defendant's Cross-Motion for Summary Judgment and Reply, if any, on or before April 11, 2017; and Defendant shall file its Reply, if any, on or before April 25, 2017. Please see attached Order for additional details. Signed by Judge Amit P. Mehta on 12/06/2016. (lcapm3) Modified on 12/6/2016 (zcdw). (Entered: 12/06/2016)
2016-12-06MINUTE ORDER: The parties shall appear for a status hearing on December 9, 2016, at 2:15 p.m., in Courtroom 10. In the event counsel or a party is unable to appear on the scheduled date and time due to an unresolvable scheduling conflict, counsel shall meet and confer and provide, via email, two alternative dates and times to the Courtroom Deputy Clerk, Ms. Chashawn White (Chashawn_White@dcd.uscourts.gov), who shall reset the status hearing and provide notice to the parties. Signed by Judge Amit P. Mehta on 12/06/2016. (lcapm3) (Entered: 12/06/2016)
2016-12-06Set/Reset Deadlines/Hearings: Status Conference set for 12/9/2016 at 2:15 PM in Courtroom 10 before Judge Amit P. Mehta. (cdw) (Entered: 12/06/2016)
2016-12-0617MEMORANDUM in opposition to re 15 MOTION for Extension of Time to Complete Search and Processing and Release of Responsive Records filed by KING & SPALDING, LLP. (Attachments: # 1 Text of Proposed Order Proposed Order)(Richter, John) Modified on 12/7/2016 to correct docket event/text (jf). (Entered: 12/06/2016)
2016-12-09MINUTE ORDER granting in part and denying in part 15 Defendants' Motion for Extension of Time to Complete Search and Processing and Release of Responsive Records. Defendants shall conclude all processing and production on or before December 23, 2016. The parties shall thereafter meet and confer and shall file a Joint Status Report on or before January 5, 2017, addressing whether summary judgment briefing is needed, and, if so, to what extent. If summary judgment briefing is necessary, parties shall include a proposed briefing schedule. Signed by Judge Amit P. Mehta on 12/09/2016. (lcapm3) (Entered: 12/09/2016)
2016-12-09Set/Reset Deadlines/Hearings: Joint Status Report due by 1/5/2017. (cdw) (Entered: 12/12/2016)
2016-12-09Minute Entry for proceedings held before Judge Amit P. Mehta: Status Conference held on 12/9/2016. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 12/12/2016)
2017-01-0518Joint STATUS REPORT and Proposed Briefing Schedule by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE. (Simon, Jeremy) (Entered: 01/05/2017)
2017-01-0619ORDER entering the following schedule for further proceedings in this matter: Defendants' Motion for Summary Judgment shall be filed on or before February 7, 2017; Plaintiff's Cross-Motion for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment shall be filed on or before February 28, 2017; Defendants' Reply and Opposition to Plaintiff's Motion for Summary Judgment shall be filed on or before March 21, 2017; and Plaintiff's Reply shall be filed on or before April 11, 2017. See attached Order for additional details. Signed by Judge Amit P. Mehta on 01/06/2017. (lcapm3) (Entered: 01/06/2017)
2017-01-06Set/Reset Deadlines/Hearings: Defendants' Summary Judgment motions due by 2/7/2017. Response to Motion for Summary Judgment due by 2/28/2017. Reply to Motion for Summary Judgment due by 3/21/2017. Plaintiff's Cross Motion due by 2/28/2017. Response to Cross Motion due by 3/21/2017. Reply to Cross Motion due by 4/11/2017. (cdw) (Entered: 01/06/2017)
2017-02-0720MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Proposed Order, # 2 Declaration of Tricia Francis and EOUSA Vaughn Index, # 3 Declaration of Theresa D. Jones, # 4 Declaration of Jarell Oshodi, # 5 Declaration of Michael Bell, # 6 Declaration of Robin Brooks, # 7 Declaration of Hugh Gilmore)(Simon, Jeremy) (Entered: 02/07/2017)
2017-02-2821Cross MOTION for Summary Judgment by KING & SPALDING, LLP (Attachments: # 1 Declaration of John C. Richter and Exhibits, # 2 Text of Proposed Order)(Richter, John) (Entered: 02/28/2017)
2017-02-2822RESPONSE re 20 MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum filed by KING & SPALDING, LLP. (Attachments: # 1 Declaration of John C. Richter and Exhibits)(Richter, John) (Entered: 02/28/2017)
2017-03-2023MOTION for Extension of Time to File Defendants' Combined Reply and Opposition by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 03/20/2017)
2017-03-2024Memorandum in opposition to re 23 MOTION for Extension of Time to File Defendants' Combined Reply and Opposition filed by KING & SPALDING, LLP. (Richter, John) (Entered: 03/20/2017)
2017-03-21MINUTE ORDER granting in part and denying in part 23 Defendants' Motion for Extension of Time. Defendants' Reply and Opposition to Plaintiff's Motion for Summary Judgment shall be filed on or before April 11, 2017; and Plaintiff's Reply shall be filed on or before May 2, 2017. Signed by Judge Amit P. Mehta on 03/21/2017. (lcapm3) (Entered: 03/21/2017)
2017-03-21Set/Reset Deadlines/Hearings: Defendants' Reply to Motion for Summary Judgment due by 4/11/2017. Defendants' Response to Cross Motion due by 4/11/2017. Reply to Cross Motion due by 5/2/2017. (cdw) (Entered: 03/23/2017)
2017-04-1025Memorandum in opposition to re 21 Cross MOTION for Summary Judgment and Response to Plaintiff's Local Rule 7(h) Statement filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Response to Plaintiff's Statement of Facts, # 2 Second Declaration of Tricia Francis, # 3 Supplemental Declaration of Theresa Jones, # 4 Proposed Order)(Simon, Jeremy) (Entered: 04/10/2017)
2017-04-1026REPLY to opposition to motion re 20 MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum (Combined Reply and Opposition to Cross Motion) (duplicate of Docket Entry No. 25) filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Response to Plaintiff's Fact Statement, # 2 Second Declaration of Tricia Francis, # 3 Supplemental Declaration of Theresa Jones, # 4 Proposed Order)(Simon, Jeremy) (Entered: 04/10/2017)
2017-05-0227REPLY to opposition to motion re 21 Cross MOTION for Summary Judgment filed by KING & SPALDING, LLP. (Attachments: # 1 Exhibit A - Flynn Declaration, # 2 Exhibit B - Finley Declaration, # 3 Exhibit C - Richter Supplemental Declaration)(Richter, John) (Entered: 05/02/2017)
2017-09-0628MEMORANDUM OPINION AND ORDER denying without prejudice 20 Defendants' Motion for Summary Judgment and 21 Plaintiff's Cross-Motion for Summary Judgment. See the attached Memorandum Opinion and Order for further details. Signed by Judge Amit P. Mehta on 09/06/2017. (lcapm2) (Entered: 09/06/2017)
2017-09-06Set/Reset Deadlines/Hearings: Joint Status Report due by 9/22/2017. (cdw) (Entered: 09/07/2017)
2017-09-2229Joint STATUS REPORT AND PROPOSED BRIEFING SCHEDULE by KING & SPALDING, LLP. (Richter, John) (Entered: 09/22/2017)
2017-09-26MINUTE ORDER. The court has considered the parties' positions as set forth in their Joint Status Report and Proposed Briefing Schedule, ECF No. 29. Further proceedings shall be governed by the following schedule: (1) Defendants' Renewed Motion for Summary Judgment and Any Additional Supporting Declarations/Vaughn Index Entries shall be filed no later than October 20, 2017; (2) Plaintiff's Cross-Motion and Opposition shall be filed no later than November 10, 2017; (2) Defendants' Reply and Opposition to Cross-Motion shall be filed no later than November 21, 2017; and (4) Plaintiff's Reply shall be filed no later than December 5, 2017. Each party's opening brief shall be limited to 15 double-spaced pages; each party's reply brief shall be limited to 7 double-spaced pages. The parties shall avoid repeating arguments made in the initial round of summary judgment briefing and may incorporate such arguments by reference. Additionally, the parties need not re-submit any evidence already offered and may refer to such evidence as necessary. The parties' briefs shall address the issues raised by the court in its Memorandum Opinion and Order, ECF No. 28, at 4-5. Signed by Judge Amit P. Mehta on 09/26/2017. (lcapm3) (Entered: 09/26/2017)
2017-10-1930MOTION for Extension of Time to File Renewed Motion for Summary Judgment by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 10/19/2017)
2017-10-2031Memorandum in opposition to re 30 MOTION for Extension of Time to File Renewed Motion for Summary Judgment filed by KING & SPALDING, LLP. (Richter, John) (Entered: 10/20/2017)
2017-10-20MINUTE ORDER granting in part and denying in part Defendants' 30 Motion for Extension of Time. Defendants' Renewed Motion for Summary Judgment and Any Additional Supporting Declarations/Vaughn Index Entries shall be filed no later than November 2, 2017, and all remaining deadlines in the current briefing schedule are moved back by seven days. Plaintiff's Cross-Motion and Opposition shall be filed no later than November 17, 2017; Defendants' Reply and Opposition to Cross-Motion shall be filed no later than November 28, 2017; and Plaintiff's Reply shall be filed no later than December 12, 2017. All other terms of the court's Minute Order of September 26, 2017, shall continue to apply. No further extensions of time will be granted except for extraordinary circumstances. Signed by Judge Amit P. Mehta on 10/20/2017. (lcapm3) (Entered: 10/20/2017)
2017-10-20Set/Reset Deadlines/Hearings: Defendants' Renewed Summary Judgment motion and supporting declarations/Vaughn Index due by 11/2/2017. Response to Motion for Summary Judgment due by 11/17/2017. Reply to Motion for Summary Judgment due by 11/28/2017. Plaintiff's Cross Motion due by 11/17/2017. Response to Cross Motion due by 11/28/2017. Reply to Cross Motion due by 12/12/2017. (zcdw) (Entered: 10/23/2017)
2017-11-0232MOTION for Summary Judgment (Defendants' Renewed Motion for Summary Judgment) by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 11/02/2017)
2017-11-1733Cross MOTION for Summary Judgment by KING & SPALDING, LLP (Attachments: # 1 Text of Proposed Order)(Richter, John) (Entered: 11/17/2017)
2017-11-1734Memorandum in opposition to re 32 MOTION for Summary Judgment (Defendants' Renewed Motion for Summary Judgment) filed by KING & SPALDING, LLP. (Richter, John) (Entered: 11/17/2017)
2017-11-2835Memorandum in opposition to re 33 Cross MOTION for Summary Judgment (Defendants' Combined Opposition and Reply Memorandum) filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Proposed Order, # 2 Exhibit 1)(Simon, Jeremy) (Entered: 11/28/2017)
2017-11-2836REPLY to opposition to motion re 32 MOTION for Summary Judgment (Defendants' Renewed Motion for Summary Judgment) Defendants' Combined Opposition and Reply) (duplicate of ECF 35) filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Proposed Order, # 2 Exhibit 1)(Simon, Jeremy) (Entered: 11/28/2017)
2017-12-1237REPLY to opposition to motion re 33 Cross MOTION for Summary Judgment filed by KING & SPALDING, LLP. (Richter, John) (Entered: 12/12/2017)
2018-09-0738MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendants' 32 Renewed Motion for Summary Judgment and Plaintiff's 33 Renewed Cross-Motion for Summary Judgment. Please see the attached Memorandum Opinion and Order for additional details. Signed by Judge Amit P. Mehta on 09/07/2018. (lcapm1) (Entered: 09/07/2018)
2018-09-07Set/Reset Deadlines: Supplemental Declarations due by 10/9/2018. Joint Status Report due by 10/22/2018. (zjd) (Entered: 09/12/2018)
2018-10-0939NOTICE of Filing Pursuant to the Court's September 7, 2018 Memorandum Opinion by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Second Supplemental Declaration of Theresa Jones, # 2 Third Declaration of Tricia Francis)(Simon, Jeremy) (Entered: 10/09/2018)
2018-10-0940SEALED DOCUMENT filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE re 39 Notice (Other), (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 1 to Third Francis Declaration)(Simon, Jeremy) (Entered: 10/09/2018)
2018-10-1941Consent MOTION for Extension of Time to File Status Report by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 10/19/2018)
2018-10-19MINUTE ORDER granting Defendants' 41 Consent Motion for Extension of Time for Parties to File Status Report. The parties' Joint Status Report shall now be due on or before October 31, 2018. Signed by Judge Amit P. Mehta on 10/19/2018. (lcapm1) (Entered: 10/19/2018)
2018-10-19Set/Reset Deadlines: Joint Status Report due by 10/31/2018. (zjd) (Entered: 10/19/2018)
2018-10-3142Joint STATUS REPORT and Proposed Briefing Schedule by KING & SPALDING, LLP. (Richter, John) (Entered: 10/31/2018)
2018-11-0643ORDER declining to disclose, in whole or in part, the sealed 40 Declaration filed with the court on October 9, 2018. See attached Order for additional details. Signed by Judge Amit P. Mehta on 11/06/2018. (lcapm1) (Entered: 11/06/2018)
2018-11-06Set/Reset Hearings: Status Conference set for 11/15/2018 at 10:15 AM in Courtroom 10 before Judge Amit P. Mehta. (zjd) (Entered: 11/07/2018)
2018-11-15Minute Entry for proceedings held before Judge Amit P. Mehta: Status Conference held on 11/15/2018. Defendants' Status Report due by 11/28/2018. (Court Reporter: Jeff Hook) (zjd) (Entered: 11/16/2018)
2018-11-2844TRANSCRIPT OF STATUS CONFERENCE before Judge Amit P. Mehta held on November 15, 2018. Page Numbers: 1 - 48. Date of Issuance: November 28, 2018. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter ref erenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 12/19/2018. Redacted Transcript Deadline set for 12/29/2018. Release of Transcript Restriction set for 2/26/2019.(Hook, Jeff) (Entered: 11/28/2018)
2018-11-2845STATUS REPORT (Defendants' Status Report) by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE. (Simon, Jeremy) (Entered: 11/28/2018)
2018-11-2846STATUS REPORT by KING & SPALDING, LLP. (Richter, John) (Entered: 11/28/2018)
2018-12-0547ORDER. After reviewing the parties' Status Reports, ECF Nos. 45 and 46 , the court orders the following with respect to further proceedings in this matter: No later than December 14, 2018, the parties shall have met and conferred. The parties shall file a Joint Status Report on December 18, 2018, advising whether any disputes remain about the scope of the search. Defendants' Motion for Summary Judgment shall be filed on or before December 21, 2018; Plaintiff's Consolidated Cross-Motion for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment and Motion for Reconsideration shall be filed on or before January 11, 2019; Defendants' Consolidated Reply and Opposition to Plaintiff's Motion for Summary Judgment and Reconsideration shall be filed on or before February 1, 2019; and Plaintiff's Reply shall be filed on or before February 15, 2019. If the parties reach agreement on the scope of the search, thereby leaving only Plaintiff's motion for reconsideration, the deadlines above are vacated and the briefing shall proceed as follows: Plaintiff's Motion for Reconsideration shall be due on December 21, 2018; Defendants' Opposition to Plaintiffs Motion shall be due on January 11, 2019; and Plaintiff's Reply shall be due on February 1, 2019. See attached Order for additional details. Signed by Judge Amit P. Mehta on 12/5/2018 (lcapm2) (Entered: 12/05/2018)
2018-12-05Set/Reset Deadlines/Hearings: Attorney Meet and Confer Conference due by 12/14/2018. Joint Status Report due by 12/18/2018. Defendants' Motion for Summary Judgment due by 12/21/2018. Plaintiff's Consolidated Cross-Motion for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment due by 1/11/2019. Defendants' Consolidated Reply and Opposition due by 2/1/2019. Plaintiff's Reply due by 2/15/2019. Plaintiff's Motion for Reconsideration due by 12/21/2018. Defendants' Opposition due by 1/11/2019. Plaintiff's Reply due by 2/1/2019. (zjd) (Entered: 12/06/2018)
2018-12-1048Unopposed MOTION to Clarify re 47 Order,,,,, by KING & SPALDING, LLP (Attachments: # 1 Text of Proposed Order)(Richter, John) (Entered: 12/10/2018)
2018-12-1149ORDER granting 48 Plaintiff's Unopposed Motion to Clarify. See attached Order for additional details. Signed by Judge Amit P. Mehta on 12/11/2018. (lcapm1) (Entered: 12/11/2018)
2018-12-1850Joint STATUS REPORT by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Third Supplemental Jones Declaration)(Simon, Jeremy) (Entered: 12/18/2018)
2018-12-2151Second Renewed MOTION for Summary Judgment by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Proposed Order)(Simon, Jeremy) Modified on 12/26/2018 (jf). (Entered: 12/21/2018)
2019-01-1152Cross MOTION for Summary Judgment (Second Renewed) , MOTION for Reconsideration re 38 Memorandum & Opinion, by KING & SPALDING, LLP (Attachments: # 1 Declaration of John C. Richter and Exhibits, # 2 Text of Proposed Order)(Richter, John) (Entered: 01/11/2019)
2019-01-1153RESPONSE re 51 Second Renewed MOTION for Summary Judgment (Duplicate of Docket Entry No. 52) filed by KING & SPALDING, LLP. (Attachments: # 1 Declaration of John C. Richter and Exhibits, # 2 Text of Proposed Order)(Richter, John) (Entered: 01/11/2019)
2019-01-1154MOTION for Leave to File Amended Memorandum of Points and Authorities by KING & SPALDING, LLP (Attachments: # 1 Exhibit A: Amended Memorandum, # 2 Text of Proposed Order)(Richter, John) (Entered: 01/11/2019)
2019-01-14MINUTE ORDER granting 54 Plaintiff's Motion for Leave to File an Amended Memorandum of Points and Authorities. Plaintiff shall file an Amended Memorandum of Points and Authorities on or before January 16, 2019. Signed by Judge Amit P. Mehta on 01/14/2019. (lcapm1) (Entered: 01/14/2019)
2019-01-1455ERRATA (Amended Memorandum in Support) re 53 Response to motion, and 52 Cross MOTION for Summary Judgment (Second Renewed) MOTION for Reconsideration re 38 Memorandum & Opinion, filed by KING & SPALDING, LLP. (jf) (Entered: 01/15/2019)
2019-01-3156Unopposed MOTION for Extension of Time to File Defendants' Consolidated Reply and Opposition and to Adjust Remaining Deadlines in Briefing Schedule by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 01/31/2019)
2019-02-01MINUTE ORDER granting 56 Defendant's Unopposed Motion for Extension of Time. The remaining deadlines in the this matter are modified as follows: (1) Defendants' Consolidated Reply and Opposition to Plaintiff's Cross-Motion and Motion for Reconsideration shall be due on or before February 6, 2019; and (2) Plaintiff's Reply in Support of its Cross-Motion and Motion for Reconsideration shall be due on or before February 21, 2019. Signed by Judge Amit P. Mehta on 02/01/2019. (lcapm1) (Entered: 02/01/2019)
2019-02-01Set/Reset Deadlines: Defendant's Reply and Opposition due by 2/6/2019. Plaintiff's Reply due by 2/21/2019. (zjd) (Entered: 02/06/2019)
2019-02-0657Memorandum in opposition to re 52 Cross MOTION for Summary Judgment (Second Renewed) MOTION for Reconsideration re 38 Memorandum & Opinion, filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Proposed Order, # 2 Response to Plaintiff's Local Rule 7(h) Statement)(Simon, Jeremy) (Entered: 02/06/2019)
2019-02-0658REPLY to opposition to motion re 51 Second Renewed MOTION for Summary Judgment (duplicate of Docket Entry No. 57) filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Proposed Order, # 2 Response to Plaintiff's Local Rule 7(h) Statement)(Simon, Jeremy) (Entered: 02/06/2019)
2019-02-2159REPLY to opposition to motion re 52 Cross MOTION for Summary Judgment (Second Renewed) MOTION for Reconsideration re 38 Memorandum & Opinion, filed by KING & SPALDING, LLP. (Richter, John) (Entered: 02/21/2019)
2019-05-28MINUTE ORDER. On April 12, 2019, the DC Circuit decided John Doe, 1 v. Federal Election Commission, 920 F.3d 866 (D.C. Cir. 2019). At pages 872-73 of the decision, the court addressed the privacy interests of a lawyer serving as a trustee for a trust for purposes of FOIA Exemption 7(C). In rejecting the potential application of Exemption 7(C), the court held: "[T]he trustee's privacy interest in his representational capacity is minimal." Furthermore, citing Washington Post Co. v. U.S. Dep't of Justice, 863 F.2d 96, 100 (D.C. Cir. 1998), the court stated: "Information relating to business judgments and relationships does not qualify for exemption. This is so even if disclosure might tarnish someone's professional reputation." Also, in footnote 12, the court distinguished SafeCard Services, Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991). By June 5, 2019, the parties may file a supplement of no more than five double-spaced pages, addressing the impact of John Doe, 1 on Plaintiff's Motion for Reconsideration. Signed by Judge Amit P. Mehta on 05/28/2019. (lcapm1) (Entered: 05/28/2019)
2019-05-28Set/Reset Deadlines: Supplemental Memoranda due by 6/5/2019. (zjd) (Entered: 05/29/2019)
2019-06-0560SUPPLEMENTAL MEMORANDUM to 52 Opposition to Motion for Reconsideration in Response to the May 28, 2019 Order filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF JUSTICE. (Simon, Jeremy) Modified to add linkage on 6/6/2019 (ztd). (Entered: 06/05/2019)
2019-06-0561SUPPLEMENTAL MEMORANDUM to 52 re Minute Order,,,, filed by KING & SPALDING, LLP. (Richter, John) Modified on 6/6/2019 (ztd). (Entered: 06/05/2019)
2019-07-2462MEMORANDUM AND OPINION denying Defendants' Second Renewed Motion for Summary Judgment, ECF No. 51 , and granting Plaintiff's Combined Motion for Reconsideration and Second Renewed Cross Motion for Summary Judgment, ECF No. 52 . See attached Memorandum Opinion for additional details. Signed by Judge Amit P. Mehta on 7/24/2019. (lcapm2) (Entered: 07/24/2019)
2019-07-2463ORDER. For the reasons set forth in the courts Memorandum Opinion, ECF No. 62 , Defendants Second Renewed Motion for Summary Judgment, ECF No. 51 , is denied, and Plaintiffs Combined Motion for Reconsideration and Second Renewed Cross Motion for Summary Judgment, ECF No. 52 , is granted in full. Signed by Judge Amit P. Mehta on 7/24/2019. (lcapm2) Modified on 7/24/2019 (lcapm2, ). (Entered: 07/24/2019)
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