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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 ClosedOpen
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(C) - Invasion of privacy concerning law enforcement records, Exemption 7(D) - Assurance of confidentiality - Implicit
Opinion/Order [38]
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)
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