Case Detail

FOIA Project Annotation: Although she expressed doubt that the agencies would find anything more, Judge Tanya Chutkan has ordered the NSA and the Justice Department's Office of Legal Counsel to conduct further searches for records concerning surveillance of federal or state judges. Journalist Jason Leopold sent similar requests to both the NSA and OLC. In his request to the NSA, Leopold asked for policies, memoranda, training materials and guidance concerning the propriety of surveilling judges. In his request to OLC, Leopold asked for "any and all memoranda and legal opinions" about the propriety of surveilling judges. Both agencies said they could find no records. The NSA searched its Office of General Counsel and its Signals Intelligence Office of Policy and Corporate Issues. Leopold argued the agency should have searched for emails because he had requested such a search. But Chutkan pointed out that "it was reasonable for NSA to determine that an email search was unlikely to uncover responsive records, especially given that other databases were available that specifically compiled policies, memoranda, training materials and guidance." He also contended that the agency should have searched another database as well, particularly since it had located a directive of interest that came from that database. Siding with Leopold, Chutkan noted that "given that NSA itself identified a directive 'of interest' but failed to explain why it did not search for other directives, and because Leopold has identified a particular source of records which may hold responsive documents, NSA is ordered to conduct a search of the United State Intelligence Directive System and disclose responsive documents, if any, or claim an exemption." Turning to OLC's claims, Chutkan observed that Leopold had asked for all memoranda and OLC had only searched final legal opinions and memoranda. She indicated that "the court is persuaded that 'any and all memoranda and legal opinions' means exactly what it says�"any and all, meaning drafts and final product. OLC has not provided any persuasive justification regarding why it did not search for drafts, and is therefore ordered to reprocess Leopold's request and conduct a search for draft memoranda and legal opinions." But Leopold's description worked against him when he claimed OLC should have searched for letters and other records. This time Chutkan explained that "once again, the court is persuaded that 'any and all memoranda and legal opinions,' the terms Leopold chose to use in his request, mean exactly what they say�"memoranda and legal opinions, and not any other types of records." Leopold contended OLC should be required to indicate how many non-responsive records it found in its search. Chutkan observed that "while FOIA cases are not typically concerned with non-responsive documents, here, because Leopold's request is narrow and he has identified a specific document that would likely have been captured by the search terms, the court will require OLC to indicate whether it located no records at all, or located some records that were deemed non-responsive." Chutkan indicated, however, that "OLC is under no obligation to produce non-responsive documents if any exist. But on the particular facts of this case, it will be helpful to know whether any records were found or not."
Issues: Search - Reasonableness of search

FOIA Project Annotation: Judge Tanya Chutkan has ruled that the Office of Legal Counsel at the Justice Department must conduct a search of email accounts of departed OLC attorneys for draft memoranda and legal opinions related to surveillance of federal and state judges. In response to reporter Jason Leopold's request for records going back to 1933, OLC had consulted several senior attorneys who indicated they were unaware of any legal analysis of surveilling judges. As a result, OLC asked for summary judgment. Chutkan agreed with Leopold that OLC's consultation with the senior attorneys was not sufficient to show it had conducted an adequate search. Chutkan pointed out that "despite the long tenures of the two senior OLC attorneys who were asked about potentially responsive records, and their familiarity with OLC's work on national security and surveillance matters, merely asking these two individuals about their personal knowledge does not, in the court's view, sufficiently demonstrate that responsive documents do not exist or would not be found by a more in-depth search." Rejecting Leopold's request that OLC be required to conduct a broader search as too burdensome, Chutkan agreed that a search of the email accounts of departed attorneys was feasible. She noted that "given that these emails and their attachments can be searched using an eDiscovery tool without needing to open each email and its attachments individually, and in the absence of any representation from [the agency] regarding the burden associated with running such searches separate and apart from searching OLC's paper files and hard drives, Defendants have not demonstrated that doing so would constitute an undue burden." Chutkan indicated that "the burden of the email search to be conducted here can nonetheless certainly be minimized by well-crafted search terms and reasonable limitations on dates and custodians." She noted that "the court is also hopeful that the parties can further limit the number of custodians whose emails will need to be searched by excluding attorneys who worked in areas where the topic of surveilling federal and state judges would not have arisen." She added that "an email-only search would, by definition, be limited to attorneys who have worked at OLC since the advent of email, whereas searches of emails, paper files, and hard drives would presumably go back much further, and thereby encompass more custodians."
Issues: Adequacy - Search

Date Filed	Doc #	Docket Text
2014-05-14	1	COMPLAINT against DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY ( Filing fee $ 400 receipt number 0090-3716068) filed by JASON LEOPOLD. (Attachments: # 1 Civil Cover Sheet, # 2 Summons NSA, # 3 Summons DOJ, # 4 Summons USAO)(Light, Jeffrey) (Entered: 05/14/2014)
2014-05-14		Case Assigned to Judge Royce C. Lamberth. (kb) (Entered: 05/15/2014)
2014-05-15	2	SUMMONS Issued Electronically as to DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY, and U.S. Attorney. (Attachments: # 1 Consent Form, # 2 Notice of Consent)(kb) (Entered: 05/15/2014)
2014-05-24	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. NATIONAL SECURITY AGENCY served on 5/19/2014 (Light, Jeffrey) (Entered: 05/24/2014)
2014-05-27	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/19/2014. Answer due for ALL FEDERAL DEFENDANTS by 6/18/2014. (Light, Jeffrey) (Entered: 05/27/2014)
2014-06-10		Case reassigned to Judge Tanya S. Chutkan. Judge Royce C. Lamberth no longer assigned to the case. (ztnr, ) (Entered: 06/10/2014)
2014-06-18	5	ANSWER to Complaint by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY.(Coleman Snead, Jacqueline) (Entered: 06/18/2014)
2014-07-30	6	MOTION for Order directing parties to meet and confer and file a joint proposed schedule by JASON LEOPOLD (Attachments: # 1 Text of Proposed Order)(Light, Jeffrey) (Entered: 07/30/2014)
2014-07-31		ORDER granting 6 Motion for Order Directing Parties to Meet and Confer. The parties shall meet and confer and propose a schedule for proceeding in this matter. The schedule should address the status of Plaintiff's FOIA request, the anticipated number of documents responsive to Plaintiff's FOIA request, the anticipated date(s) for release of the documents requested by Plaintiff, whether a motion for an Open America stay is likely in this case, whether a Vaughn index will be required in this case, whether and when either party anticipates filing a dispositive motion, and any other pertinent issues. The parties shall file a joint status report that addresses these issues and that contains a proposed schedule and order not later than August 13, 2014. Set/Reset Deadlines: due by 8/13/2014. Signed by Judge Tanya S. Chutkan on 7/31/14. (lctsc1) (Entered: 07/31/2014)
2014-08-13	7	STATUS REPORT of the Parties by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Coleman Snead, Jacqueline) (Entered: 08/13/2014)
2014-08-14		MINUTE ORDER: Upon consideration of the Joint Status Report 7 filed by the parties, it is hereby ordered that the parties shall abide by the following deadlines: Defendants' Motion for Summary Judgment shall be filed not later than September 26, 2014; Plaintiff's Opposition shall be filed not later than October 24, 2014; Defendants' Reply shall be filed not later than November 7, 2014. Defendants' Motion for Summary Judgment will include a Vaughn index if any documents are withheld in full or in part. Signed by Judge Tanya S. Chutkan on 8/14/14. (djs) (Entered: 08/14/2014)
2014-09-26	8	MOTION for Summary Judgment by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration of Paul Colborn, # 4 Declaration of Pamela Phillips)(Coleman Snead, Jacqueline) (Entered: 09/26/2014)
2014-10-24	9	Memorandum in opposition to re 8 MOTION for Summary Judgment filed by JASON LEOPOLD. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Light, Jeffrey) (Entered: 10/24/2014)
2014-11-07	10	REPLY to opposition to motion re 8 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Attachments: # 1 Second Colborn Declaration, # 2 Blaskowski Declaration)(Coleman Snead, Jacqueline) (Entered: 11/07/2014)
2015-07-31	11	MEMORANDUM AND OPINION. Signed by Judge Tanya S. Chutkan on 7/31/2015. (lctsc2) (Main Document 11 replaced on 8/13/2015) (zsm). (Entered: 07/31/2015)
2015-07-31	12	ORDER granting in part and denying in part Defendants' 8 Motion for Summary Judgment. See Order for details. The parties must submit a joint proposed scheduling order for moving forward in this case by August 21, 2015. Signed by Judge Tanya S. Chutkan on 7/31/2015. (lctsc2) (Entered: 07/31/2015)
2015-07-31		Set/Reset Deadlines: Proposed Scheduling Order due by 8/21/2015. (zsm) (Entered: 07/31/2015)
2015-08-21	13	NOTICE of Appearance by Rodney Patton on behalf of DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY (Patton, Rodney) (Entered: 08/21/2015)
2015-08-21	14	STATUS REPORT by Both Parties in Response to the Court's Order of July 31, 2015 by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Patton, Rodney) (Entered: 08/21/2015)
2015-08-25		MINUTE ORDER: Having considered the Status Report of the parties 14 , it is hereby ordered that the parties shall file a Status Report, along with a proposed schedule and proposed order, not later than August 28, 2015. Signed by Judge Tanya S. Chutkan on 8/25/15. (DJS) Modified on 8/25/2015 (zsm). (Entered: 08/25/2015)
2015-08-25		Set/Reset Deadlines: Status Report and proposed schedule due by 8/28/2015. (zsm) (Entered: 08/25/2015)
2015-08-28	15	Joint STATUS REPORT and Joint Proposed Scheduling Order by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 08/28/2015)
2015-08-31		MINUTE ORDER: Having considered the Joint Status Report filed by the parties 15 , it is hereby ordered that the parties shall abide by the following deadlines: Defendant's Motion for Summary Judgment due by October 14, 2015; Plaintiff's Opposition to Summary Judgment Motion due by November 4, 2015; Defendant's Reply in Support of Summary Judgment Motion due by November 18, 2015. Signed by Judge Tanya S. Chutkan on 8/31/15. (DJS) (Entered: 08/31/2015)
2015-08-31		Set/Reset Deadlines: Summary Judgment motion due by 10/14/2015. Response to Motion for Summary Judgment due by 11/4/2015. Reply to Motion for Summary Judgment due by 11/18/2015. (zsm) (Entered: 08/31/2015)
2015-10-14	16	Renewed MOTION for Summary Judgment by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration, # 4 Text of Proposed Order)(Patton, Rodney) Modified text on 10/15/2015 (td). (Entered: 10/14/2015)
2015-10-15	17	ERRATA Relating to the Government's Memorandum of Points and Authorities in Support of the Goverment's Renewed Motion for Summary Judgment by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY 16 Second MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Attachments: # 1 Memorandum in Support)(Patton, Rodney) (Entered: 10/15/2015)
2015-11-04	18	Memorandum in opposition to re 16 Second MOTION for Summary Judgment filed by JASON LEOPOLD. (Attachments: # 1 Exhibit 1 - Colborn Declaration from NDLON v. ICE, # 2 Statement of Facts, # 3 Text of Proposed Order)(Light, Jeffrey) (Entered: 11/04/2015)
2015-11-18	19	REPLY to opposition to motion re 16 Second MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Attachments: # 1 Exhibit, # 2 Statement of Facts)(Patton, Rodney) (Entered: 11/18/2015)
2016-07-11	20	MEMORANDUM OPINION. See Order for additional details. Signed by Judge Tanya S. Chutkan on 7/11/16. (lctsc2) (Entered: 07/11/2016)
2016-07-11	21	ORDER denying 16 Motion for Summary Judgment. See Order for additional details. Signed by Judge Tanya S. Chutkan on 7/11/16. (lctsc2) (Entered: 07/11/2016)
2016-07-12		Set/Reset Deadlines: joint proposed scheduling order due by 8/11/2016. (tth) (Entered: 07/12/2016)
2016-08-11	22	Joint STATUS REPORT and Joint Proposed Scheduling Order by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Patton, Rodney) (Entered: 08/11/2016)
2016-08-12		MINUTE ORDER: Having considered the Status Report 22 filed by the parties, it is hereby ordered that the parties shall file another joint Status Report by October 11, 2016, along with a proposed order. Signed by Judge Tanya S. Chutkan on 8/12/16. (DJS) (Entered: 08/12/2016)
2016-10-11	23	Joint STATUS REPORT by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 10/11/2016)
2016-10-12		MINUTE ORDER: Having considered the parties' Joint Status Report 23 , it is hereby ordered that the parties are to submit another status report on or before November 10, 2016, in which the parties will report either that the issue of fees and costs has been resolved, or, if not, setting forth a proposed briefing schedule - along with a proposed order - on the issue of fees and costs. Signed by Judge Tanya S. Chutkan on 10/12/16. (DJS) (Entered: 10/12/2016)
2016-10-13		Set/Reset Deadlines: Status Report due by 11/10/2016 (zsm) (Entered: 10/13/2016)
2016-11-10	24	Joint STATUS REPORT by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Patton, Rodney) (Entered: 11/10/2016)
2016-11-11		MINUTE ORDER: Having considered the parties' Joint Status Report 24 , it is hereby ordered that the parties are to submit another status report on or before 12/8/16, in which the parties will report either that the issue of fees and costs has been resolved or, if not, set forth a proposed briefing schedule - along with a proposed order - on the issue of fees and costs. Status Report due by 12/8/2016. Signed by Judge Tanya S. Chutkan on 11/11/16. (DJS) (Entered: 11/11/2016)
2016-12-08	25	Joint STATUS REPORT by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 12/08/2016)
2016-12-12		MINUTE ORDER: Having considered the parties' Joint Status Report 25 , it is hereby ordered that the parties shall submit another status report on or before December 15, 2016, in which the parties will report either that the issue of attorney's fees and costs has been resolved, or, if not,setting forth a proposed briefing schedule and proposed order on the issue of fees and costs. Signed by Judge Tanya S. Chutkan on 12/12/16. (DJS) (Entered: 12/12/2016)
2016-12-13		Set/Reset Deadlines: Status Report due by 12/15/2016 (zsm) (Entered: 12/13/2016)
2016-12-15	26	Joint STATUS REPORT by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 12/15/2016)
2016-12-16		MINUTE ORDER: Having considered the parties' Joint Status Report 26 , it is hereby ordered that the following deadlines shall apply: Plaintiff's Motion for Attorney's Fees and Costs due January 30, 2017. Defendants' Opposition due February 20, 2017. Plaintiffs Reply due March 6, 2017. Signed by Judge Tanya S. Chutkan on 12/16/16. (DJS) (Entered: 12/16/2016)
2016-12-16		Set/Reset Deadlines: Motions due by 1/30/2017. Response due by 2/20/2017 Reply due by 3/6/2017. (zsm) (Entered: 12/16/2016)
2017-01-26	27	Joint MOTION to Vacate The Briefing Schedule by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 01/26/2017)
2017-01-26		MINUTE ORDER: Granting 27 Joint Motion to Vacate Briefing Schedule. The current briefing schedule, set by the 12/16/16 Minute Entry Order is hereby VACATED. The parties shall file a Stipulation of Dismissal or Joint Status Report and proposed order by February 27, 2017. Signed by Judge Tanya S. Chutkan on 1/26/17. (DJS) (Entered: 01/26/2017)
2017-01-31		Set/Reset Deadlines: Joint Stipulation of Dismissal or Joint Status Report due by 2/27/2017. (tb) (Entered: 01/31/2017)
2017-02-27	28	Joint STATUS REPORT by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 02/27/2017)
2017-02-28	29	ORDER OF DISMISSAL: Dismissing case without prejudice. If settlement is not consummated, either party may reopen the action until April 15, 2017, upon motion approved by the Court. Should counsel fail to move to reopen the case within the prescribed period, the case shall, without further order, stand dismissed with prejudice. Signed by Judge Tanya S. Chutkan on 2/28/17. (DJS) (Entered: 02/28/2017)
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