Case Detail

FOIA Project Annotation: A federal court in New York has moved the Second Circuit's waiver doctrine one step further by finding that the government can waive the attorney work-product privilege under certain circumstances. Ruling in a case brought by the New York Times for various reports and memoranda stemming from multiple investigations by John Durham, who at the time was an Assistant U.S. Attorney for the District of Connecticut, pertaining to investigations he conducted on behalf of the Attorney General concerning the destruction of video tapes of interrogations of detainees by the CIA, as well as the treatment of detainees, Judge Paul Oetken concluded that the government had waived any legal privileges as to at least several of the reports because the Attorney General had publicly accepted Durham's recommendations as the agency's final decision. Durham was originally appointed in January 2008 by then-Attorney General Michael Mukasey to investigate the destruction of the CIA tapes. Two years later, Durham produced a 1,037-page report, referred to as the Tape Destruction Report, recommending that no one be charged criminally. DOJ announced Durhams's recommendations in a brief press release in November 2010. Durham continued to investigate whether any potential witnesses had lied to him during the investigation. In 2012, Durham sent a memo, referred to as the Obstruction Memo, to the Deputy Attorney General with his recommendations. Those recommendations were never made public. Durham's investigation of whether anyone violated federal law in connection with the overseas CIA interrogation program began in 2009 at the direction of Attorney General Eric Holder. This investigation yielded two interim reports, two supplemental reports, and a Final Recommendation Report, dated May 2011. Durham found that, with the exception of two matters, no criminal investigation should be opened. Holder released a rather substantive statement about this aspect of Durham's investigation in June 2011. The report led to a further investigation of two deaths, also led by Durham. During this investigation, FBI agents prepared FD-302 forms memorializing each witness interview. This investigation resulted in two memoranda, referred to as the Declination Memoranda, recommending no further charges be brought. In August 2012, Holder also released a substantive statement pertaining to the results of this investigation. New York Times reporter Charlie Savage submitted two FOIA requests, one for any reports to the Attorney General or Deputy Attorney General describing the findings of Durham's investigations, and the other for any FD-302 reports prepared during Durham's investigations. After DOJ failed to respond, the Times filed suit. DOJ claimed all the records were protected by Exemption 5 (privileges), while the Times argued the FD-302s did not qualify as work product and the agency had waived any privileges by incorporating the reports into its final decision. The Times argued that the FD-302s were "substantially verbatim witness statements" that did not qualify for protection by a legal privilege, while the agency contended the forms were always considered work product because they revealed the attorney's impressions. Oetken pointed out that "the proper rule is that witness statements are sometimes but not always work product. They are work product when they reveal an attorney's strategic impressions and mental processes." Oetken then concluded that the FD-302s constituted work product. He noted that "the mere selection of whom to interview reveals a great deal about Durham's strategy. Similarly, the questions he or his subordinates ask witnesses almost certainly reveal his thinking about the substance of the case. It is impossible for DOJ to disclose the FD-302s without revealing protected information about Durham's case analysis and strategy." Oetken spent much of his decision explaining the state of Second Circuit case law on waiver of privileges in deciding whether to include the attorney work-product privilege under the waiver umbrella. In its decision in National Council on La Raza v. Dept of Justice 411 F.3d 350 (2d Cir. 2005), the Second Circuit found that the Justice Department had expressly adopted the substance of a legal memorandum on jurisdiction over immigration matters through its detailed public statements by then-Attorney General John Ashcroft and other high-ranking officials. In NLRB v. Sears, Roebuck, 421 U.S. 132 (1975), the Supreme Court ruled that information was no longer privileged when an agency incorporated the information into its final decision, either expressly or by reference. In La Raza, the Second Circuit found DOJ had waived any deliberative process privilege claim by its express references to the immigration memorandum. That case was followed by Brennan Center for Justice v. Dept of Justice, 697 F.3d 184 (2d Cir. 2012), in which the Second Circuit found that the attorney-client privilege was also subject to the waiver doctrine. Oetken explained that "the attorney-client privilege and the work-product doctrine are, if not twins, at least very close siblings. Both privileges exist to protect the public's ability to access legal services." Continuing, he noted that "if publicly adopting a document vitiates the purposes of the attorney-client privilege, it is hard to see why it ought not to do the same to the work product doctrine. Similarly, if justifying agency action on the basis of a document shielded by the attorney-client privilege is offensive to FOIA, it is hard to see why justifying the same action on the basis of a document shielded by the work-product doctrine is not offensive. The Court concludes, accordingly, that the express adoption doctrine applies to the work-product doctrine." Oetken pointed out that "whatever 'express' means in this context, it does not mean 'express' as that term is ordinarily used. The agency need not even have explicitly mentioned any specific document in a public statement, so long as its conduct, considered as a whole, manifests an express adoption of the documents." Oetken explained further that "to adopt a document, an agency must rely, in a final decision, on both the document's conclusion and its reasoning. . .This coheres with the rationale underlying the express adoption doctrine. The government may not rely on the legitimacy and authority that a document provides while keeping that document secret." Oetken pointed out that "adoption, then, hinges on the extent to which an agency relies on the document's reasoning to justify its actions. This consideration is more important than the specificity with which a particular document is referenced. The touchstone of the express adoption inquiry is whether the agency uses the reasoning contained in a document, and the authority provided by the document, to 'justify' its actions to the public." He then found that the Final Recommendation Report and the Declination Memoranda had been adopted as the agency's final decision through the explication provided in Holder's statements. As to the Final Recommendation Report, Oetken pointed out that "the Attorney General did not have to invoke Durham's legal analysis 'to justify and explain the Department's policy,' nor did he have to frame Durham's recommendation 'as a basis for his decision." He added that "Exemption Five does not apply when an agency refers to a privileged document, and borrows that document's legitimacy, to rationalize its public decisions." As to the Declination Memoranda, he noted that "because DOJ relied on Durham's reasoning in explaining its decision not to prosecute, the Court concludes that the Declination Memoranda were 'expressly adopted' and are therefore subject to disclosure under FOIA." However, Oetken cautioned that any waiver applied only so far. He observed that "DOJ should not be required to disclose those portions of the memorandum that do not support the reasoning on which the Attorney General publicly relied."
Issues: Exemption 5 - Privileges - Waiver of privilege, Exemption 5 - Privileges - Attorney-client privilege

FOIA Project Annotation: A federal court in New York has ruled that most of the information contained in five memos concerning the DOJ investigation into whether certain overseas interrogations by the CIA and the deaths of detainees in CIA custody violated federal law is protected by Exemption 1 (national security), Exemption 3 (other statutes), Exemption 5 (privileges), or Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records). The decision resolves remaining potential exemption claims for the memos after Judge Paul Oetken concluded in his previous opinion that Exemption 5 did not protect the five memos in their entirety because their rationale had been expressly adopted by former Attorney General Eric Holder. The DOJ investigation was conducted by John Durham, who was then an Assistant U.S. Attorney in Connecticut. Durham concluded that two instances in which detainees died while in U.S. custody should be pursued. Two criminal investigations involving grand jury proceedings were held, but resulted in no indictments. Durham submitted two reports to Holder and the Deputy Attorney General, referred to as Declination Memoranda, explaining his conclusion that no criminal charges should be brought. Several months later, Holder accepted Durham's findings and closed the investigation. In his previous decision, Oetken indicated that other exemptions might well be applicable and ordered DOJ and the New York Times to address those issues further. In a discussion in which two pages were redacted, Oetken found that the Recommendation Memorandum did not qualify for protection under Rule 6(e) pertaining to grand jury secrecy, but that the Declination Memoranda could be withheld. Noting that Rule 6(e) protected only matters occurring before the grand jury, Oetken pointed out that "simply put, courts consistently interpret Rule 6(e) as inapplicable to 'disclosures of information obtained independently of the grand jury process, even if the same information might later be presented to the grand jury.' Rule 6(e) is not violated, therefore, by the disclosure of the Recommendation Memoranda, which contains information gathered from an independent investigation." He found most of the Declination Memoranda was protected but indicated that certain conclusions about the legal strength of the charges may not have occurred before the grand jury. He observed that "such information is not properly withheld pursuant to Rule 6(e) if it is related to an independent investigation, conducted by Mr. Durham and not concerning matters occurring before the grand jury." The CIA provided affidavits supporting the government's claims that portions of the remaining memos were protected by Exemption 1 and the National Security Act. The New York Times primarily objected to withholding the location of various overseas sites were detentions took place, arguing the information was already public. Rejecting that claim, Oetken noted that "but the Government has never officially acknowledged the locations of the CIA;s covert facilities and installations and the Times' reliance on the alleged disclosure of such information by others does not function as official acknowledgment by the Government for purposes of waiver under the FOIA exemptions." Finding the government had justified its redaction of names under the privacy exemptions, Oetken observed that "this grant is to be narrowly limited to the personally identifying information contained in the memoranda as the agency is not permitted 'to exempt from disclosure all of the material in an investigatory record solely on the grounds that the record includes some information which identifies a private citizen or provides that person's name and address.'" The government argued that attached exhibits that predated Durham's investigation contained factual material protected by Exemption 5. Oetken, however, explained that "those 'facts' upon which Mr. Durham and his team relied in their reasoning or conclusions, which were later expressly adopted by the Attorney General, are subject to the express adoption doctrine as applied to the work-product doctrine. . .Accordingly, the express adoption doctrine applies to the referenced exhibits, such that they do not fall within FOIA Exemption 5."
Issues: Exemption 5 - Privileges - Waiver of privilege, Exemption 3 - Limited agency discretion, Exemption 1 - Harm to national security

FOIA Project Annotation: A federal judge in New York has ruled that the Department of Justice properly reprocessed a request from New York Times reporter Charlie Savage after the Second Circuit told DOJ to reconsider its original processing of the request. Savage originally requested records on an investigation by Connecticut Assistant U.S. Attorney John Durham into whether the CIA's detainee interrogations conducted abroad were legal, including the CIA's decision to destroy video tapes of the interrogations. Durham ultimately decided not to bring charges and when Judge Paul Oetken issued his first ruling, there were five disputed memoranda remaining, which the agency withheld under Exemption 3 (other statutes), citing Rule 6(e) on grand jury secrecy. Oetken also found that DOJ could not claim traditional common-law privileges for three memoranda because Attorney General Eric Holder had expressly adopted their reasoning as his final decision. On appeal, the Second Circuit ruled that the express adoption exception did not apply because Durham's prosecutorial determinations were non-precedential and not binding on the public. However, the Second Circuit also found that some of Holder's statements were specific enough that they waived the work-product privilege. As a result of the Second Circuit's holding, DOJ released a redacted version of the Preliminary Review Memorandum, claiming it was the only memo implicated by the work-product waiver found by the Second Circuit. Savage argued that DOJ had interpreted the Second Circuit's waiver too narrowly. Oetken found that Savage's interpretation was more accurate but noted that the agency had since agreed to disclose information consistent with Savage's interpretation. He pointed out that "the Court is aware of no reason why the Government may not clarify its position in later briefing, as it has done here." Oetken then found that the agency's Exemption 3 claim for withholding the identities of certain individuals was appropriate. He noted that "given that the Government has made a plausible case that disclosing names. . .would reveal information falling into two of these six categories, Exemption 3 offers an alternative basis for the Government to withhold the names in question."
Issues: Exemption 3 - Statutory prohibition of disclosure

Date Filed	Doc #	Docket Text
2014-05-28	1	CIVIL COVER SHEET filed. (lcu) (laq). (Entered: 05/30/2014)
2014-05-28	2	COMPLAINT against United States Department of Justice. (Filing Fee $ 350.00, Receipt Number 465401096003)Document filed by The New York Times Company, Charlie Savage.(lcu) (laq). (Entered: 05/30/2014)
2014-05-28		SUMMONS ISSUED as to United States Department of Justice, U.S. Attorney and U.S. Attorney General. (lcu) (Entered: 05/30/2014)
2014-05-28		Magistrate Judge James C. Francis IV is so designated. (lcu) (Entered: 05/30/2014)
2014-05-28		Case Designated ECF. (lcu) (Entered: 05/30/2014)
2014-05-30		***NOTE TO ATTORNEY TO E-MAIL PDF. Note to Attorney David McCraw for noncompliance with Section 14.3 of the S.D.N.Y. Electronic Case Filing Rules & Instructions. E-MAIL the PDF for Document 2 Complaint to: caseopenings@nysd.uscourts.gov. (lcu) (Entered: 05/30/2014)
2014-05-30		***NOTICE TO ATTORNEY TO SUBMIT PDF OF CIVIL COVER SHEET. Notice to Attorney David McCraw, to submit PDF of the Civil Cover Sheet. Email a copy of Civil Cover Sheet to: caseopenings@nysd.uscourts.gov . (lcu) (Entered: 05/30/2014)
2014-06-09	3	NOTICE OF APPEARANCE by Tara Marie La Morte on behalf of United States Department of Justice. (La Morte, Tara) (Entered: 06/09/2014)
2014-06-30	4	ANSWER to 2 Complaint. Document filed by United States Department of Justice.(La Morte, Tara) (Entered: 06/30/2014)
2014-09-19	5	ORDER: The parties are hereby ordered to appear for a scheduling conference on Thursday, September 25, 2014, at 10:00 AM, in Courtroom 706 of the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY., ( Scheduling Conference set for 9/25/2014 at 10:00 AM in Courtroom 706, 40 Centre Street, New York, NY 10007 before Judge J. Paul Oetken.) (Signed by Judge J. Paul Oetken on 9/19/2014) (lmb) (Entered: 09/19/2014)
2014-09-23	6	LETTER addressed to Judge J. Paul Oetken from Tara M. La Morte dated September 23, 2014 re: Scheduling in Light of September 25 Conference. Document filed by United States Department of Justice. (Attachments: # 1 Text of Proposed Order Proposed Stipulation and Order Regarding Scheduling)(La Morte, Tara) (Entered: 09/23/2014)
2014-09-24		NOTICE of Adjournment of conference. The conference scheduled for Thursday, September 25, at 10:00 AM, is hereby cancelled. (Skolnik, Brandon) (Entered: 09/24/2014)
2014-09-24	7	NOTICE OF APPEARANCE by Jeremy Alexander Kutner on behalf of Charlie Savage, The New York Times Company. (Kutner, Jeremy) (Entered: 09/24/2014)
2014-09-24	8	STIPULATION AND ORDER REGARDING PROCEDURES FOR ADJUDICATING SUMMARY JUDGMENT MOTIONS: It is hereby stipulated and agreed, by and between the Plaintiffs and the Government, as set forth within: The parties will litigate as a threshold matter whether the Responsive Records are exempt in whole or in part from disclosure pursuant to FOIA Exemption 5 by filing cross-motionsfor summary judgment. In limiting their initial summary judgment motions to the Exemption 5 issue, the parties agree that they do not waive, and fully reserve, all arguments with respect to whether the Responsive Records are otherwise exempt in whole or in part from disclosure under FOIA, including but not limited to whether such records are also exempt under FOIA Exemptions 1, 3, 6, and/or 7. 2. The Plaintiffs will file their motion for summary judgment as to the Exemption 5 issue on October 31, 2014; the Government will file its cross-motion for summary judgment and its opposition to the Plaintiffs' motion for summary judgment on December 5, 2014; the Plaintiffs will file their opposition to the Government's cross-motion for summary judgment and their reply brief in support of their motion for summary judgment by December 19, 2014; and the Government will file its reply brief in support of its motion for summary judgment by January 9, 2015. The parties' proposed briefing schedule is hereby adopted. In addition, the conference is scheduled for Thursday, September 25, at 10:00 a.m., is hereby cancelled. (See Order.) (Cross Motions due by 12/5/2014. Motions due by 10/31/2014. Responses due by 12/19/2014, Replies due by 1/9/2015.) (Signed by Judge J. Paul Oetken on 9/24/2014) (ajs) Modified on 9/24/2014 (ajs). Modified on 10/2/2014 (ajs). (Entered: 09/24/2014)
2014-10-31	9	MOTION for Summary Judgment (Partial) . Document filed by Charlie Savage, The New York Times Company. Responses due by 12/5/2014(McCraw, David) (Entered: 10/31/2014)
2014-10-31	10	MEMORANDUM OF LAW in Support re: 9 MOTION for Summary Judgment (Partial) . . Document filed by Charlie Savage, The New York Times Company. (McCraw, David) (Entered: 10/31/2014)
2014-10-31	11	DECLARATION of David E. McCraw in Support re: 9 MOTION for Summary Judgment (Partial) .. Document filed by Charlie Savage, The New York Times Company. (Attachments: # 1 Exhibit A-D, # 2 Exhibit E-I, # 3 Exhibit J-Q, # 4 Exhibit R-T)(McCraw, David) (Entered: 10/31/2014)
2014-12-02	12	LETTER MOTION for Extension of Time to File Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment addressed to Judge J. Paul Oetken from Jeannette Vargas dated December 2, 2014. Document filed by United States Department of Justice.(Vargas, Jeannette) (Entered: 12/02/2014)
2014-12-03	13	ORDER granting 12 Letter Motion for Extension of Time to File.The Government's requested extension is granted. The parties' proposed briefing schedule is hereby adopted. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 12/03/2014)
2014-12-09	14	MOTION for Summary Judgment . Document filed by United States Department of Justice. Responses due by 12/23/2014(Vargas, Jeannette) (Entered: 12/09/2014)
2014-12-09	15	MEMORANDUM OF LAW in Support re: 14 MOTION for Summary Judgment . and in Opposition to Plaintiffs' Motion for Partial Summary Judgment . Document filed by United States Department of Justice. (Vargas, Jeannette) (Entered: 12/09/2014)
2014-12-09	16	DECLARATION of John Durham in Support re: 14 MOTION for Summary Judgment .. Document filed by United States Department of Justice. (Vargas, Jeannette) (Entered: 12/09/2014)
2014-12-10	17	DECLARATION of Douglas Hibbard in Support re: 14 MOTION for Summary Judgment .. Document filed by United States Department of Justice. (La Morte, Tara) (Entered: 12/10/2014)
2014-12-10	18	LETTER addressed to Judge J. Paul Oetken from Tara M. La Morte dated December 10, 2014 re: ECF filing of Hibbard Declaration. Document filed by United States Department of Justice.(La Morte, Tara) (Entered: 12/10/2014)
2014-12-12	19	MEMO ENDORSEMENT on re: 18 Letter filed by United States Department of Justice. ENDORSEMENT: The Government's request is Granted. The Declaration of Douglas Hibbard is hereby accepted as timely. SO ORDERED. (Signed by Judge J. Paul Oetken on 12/11/2014) (ama) (Entered: 12/12/2014)
2014-12-18	20	LETTER MOTION for Leave to File Excess Pages addressed to Judge J. Paul Oetken from David E. McCraw dated 12/18/2014. Document filed by Charlie Savage, The New York Times Company.(McCraw, David) (Entered: 12/18/2014)
2014-12-18	21	ORDER granting 20 Letter Motion for Leave to File Excess Pages.The Plaintiffs' request to file excess pages is granted. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 12/18/2014)
2014-12-23	22	REPLY MEMORANDUM OF LAW in Support re: 9 MOTION for Summary Judgment (Partial) . And in Opposition to Government's Motion for Summary Judgment . Document filed by Charlie Savage, The New York Times Company. (McCraw, David) (Entered: 12/23/2014)
2014-12-23	23	DECLARATION of David E. McCraw in Support re: 9 MOTION for Summary Judgment (Partial) .. Document filed by Charlie Savage, The New York Times Company. (Attachments: # 1 Exhibit A-B, # 2 Exhibit C-E)(McCraw, David) (Entered: 12/23/2014)
2015-01-12	24	LETTER MOTION for Leave to File Excess Pages Requesting five additional pages for reply memorandum of law addressed to Judge J. Paul Oetken from Tara M. La Morte dated January 12, 2015. Document filed by United States Department of Justice.(La Morte, Tara) (Entered: 01/12/2015)
2015-01-12	25	ORDER granting 24 Letter Motion for Leave to File Excess Pages.The Government's request for leave to file excess pages is hereby granted. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 01/12/2015)
2015-01-13	26	REPLY MEMORANDUM OF LAW in Support re: 14 MOTION for Summary Judgment . . Document filed by United States Department of Justice. (Vargas, Jeannette) (Entered: 01/13/2015)
2015-03-09	27	ORDER: The parties are hereby ordered to appear for oral argument on April 9, 2015, at 10:00 AM, in Courtroom 706 of the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY. (Oral Argument set for 4/9/2015 at 10:00 AM in Courtroom 706, 40 Centre Street, New York, NY 10007 before Judge J. Paul Oetken.) (Signed by Judge J. Paul Oetken on 3/6/2015) (kko) (Entered: 03/09/2015)
2015-03-23	28	LETTER MOTION to Adjourn Conference and Reschedule for April 10, 2015, at 10:00 a.m. addressed to Judge J. Paul Oetken from Jeannette Vargas dated 3/23/2015. Document filed by United States Department of Justice.(Vargas, Jeannette) (Entered: 03/23/2015)
2015-03-24	29	ORDER granting 28 Letter Motion to Adjourn Conference.Granted. Oral argument is hereby adjourned to April 10, 2015, at 10:00 AM. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 03/24/2015)
2015-03-26	30	ORDER: Oral argument is hereby adjourned to April 13, 2015, at 10:00 AM, in Courtroom 706 of the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY. (Oral Argument set for 4/13/2015 at 10:00 AM in Courtroom 706, 40 Centre Street, New York, NY 10007 before Judge J. Paul Oetken.) (Signed by Judge J. Paul Oetken on 3/26/2015) (kko) (Entered: 03/26/2015)
2015-04-13		Minute Entry for proceedings held before Judge J. Paul Oetken: Oral Argument held on MSJ and Cross Motion on 4/13/2015. Decision reserved. (See transcript). (Court Reporter Rebecca Forman) (Skolnik, Brandon) (Entered: 04/13/2015)
2015-05-14	31	TRANSCRIPT of Proceedings re: CONFERENCE held on 4/13/2015 before Judge J. Paul Oetken. Court Reporter/Transcriber: Rebecca Forman, (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 6/8/2015. Redacted Transcript Deadline set for 6/18/2015. Release of Transcript Restriction set for 8/17/2015.(Grant, Patricia) (Entered: 05/14/2015)
2015-05-14	32	NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 4/13/2015 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...(Grant, Patricia) (Entered: 05/14/2015)
2015-09-30	33	OPINION AND ORDER re: 9 MOTION for Summary Judgment (Partial) filed by The New York Times Company, Charlie Savage, 14 MOTION for Summary Judgment filed by United States Department of Justice. For the foregoing reasons, DOJ's motion for summary judgment is granted in part and denied in part; and the Times's motion for partial summary judgment is granted in part and denied in part. The parties are directed to confer and to submit a proposed briefing schedule on any further motions on or before October 30, 2015. The Clerk of Court is directed to close the motions at Docket Numbers 9 and 14. (As further set forth in this Order.) (Signed by Judge J. Paul Oetken on 9/30/2015) (kko) (Entered: 09/30/2015)
2015-10-30	34	LETTER addressed to Judge J. Paul Oetken from Tara M. La Morte dated October 30, 2015 re: Parties' Proposed Schedules in Response to Court's Order dated September 30, 2015. Document filed by United States Department of Justice.(La Morte, Tara) (Entered: 10/30/2015)
2015-11-03	35	MEMO ENDORSEMENT on re: 34 Letter, filed by United States Department of Justice re: Parties' Proposed Schedules in Response to Court's Order dated September 30, 2015. ENDORSEMENT: The Government's proposed schedule is hereby adopted. (Cross Motions due by 5/27/2016. Motions due by 4/29/2016. Responses due by 6/24/2016, Replies due by 7/8/2016.) (Signed by Judge J. Paul Oetken on 11/3/2015) (kko) (Entered: 11/03/2015)
2016-02-14	36	NOTICE of Withdrawals of Counsel. Document filed by Charlie Savage, The New York Times Company. (McCraw, David) (Entered: 02/14/2016)
2016-04-12	37	MEMO ENDORSEMENT on re: 36 NOTICE of Withdrawals of Counsel. Document filed by Charlie Savage, The New York Times Company. ENDORSEMENT: So ordered. Attorney Diana Victoria Baranetsky and Jeremy Alexander Kutner terminated. (Signed by Judge J. Paul Oetken on 4/8/2016) (rjm) (Entered: 04/12/2016)
2016-04-20	38	LETTER MOTION for Extension of Time to File Motion for Summary Judgment addressed to Judge J. Paul Oetken from Jeannette A. Vargas dated 4/20/2016. Document filed by United States Department of Justice.(Vargas, Jeannette) (Entered: 04/20/2016)
2016-04-21	39	ORDER granting 38 Letter Motion for Extension of Time. The Government's proposed schedule is hereby adopted. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 04/21/2016)
2016-05-13	40	SECOND MOTION for Summary Judgment . Document filed by United States Department of Justice. Responses due by 6/10/2016(La Morte, Tara) (Entered: 05/13/2016)
2016-05-13	41	DECLARATION of Jan M. Payne in Support re: 40 SECOND MOTION for Summary Judgment .. Document filed by United States Department of Justice. (Attachments: # 1 Payne Decl. Pt. 2)(La Morte, Tara) (Entered: 05/13/2016)
2016-05-13	42	DECLARATION of Christina Butler in Support re: 40 SECOND MOTION for Summary Judgment .. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit A - Supplemental Vaughn Index)(La Morte, Tara) (Entered: 05/13/2016)
2016-05-13	43	DECLARATION of John H. Durham in Support re: 40 SECOND MOTION for Summary Judgment .. Document filed by United States Department of Justice. (La Morte, Tara) (Entered: 05/13/2016)
2016-05-13	44	MEMORANDUM OF LAW in Support re: 40 SECOND MOTION for Summary Judgment . . Document filed by United States Department of Justice. (La Morte, Tara) (Entered: 05/13/2016)
2016-06-06	45	LETTER MOTION for Leave to File Excess Pages addressed to Judge J. Paul Oetken from David E. McCraw dated June 6, 2016. Document filed by Charlie Savage, The New York Times Company.(McCraw, David) (Entered: 06/06/2016)
2016-06-06	46	NOTICE OF APPEARANCE by Tali Ravit Leinwand on behalf of Charlie Savage, The New York Times Company. (Leinwand, Tali) (Entered: 06/06/2016)
2016-06-07	47	ORDER granting 45 Letter Motion for Leave to File Excess Pages. Granted. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 06/07/2016)
2016-06-10	48	CROSS MOTION for Summary Judgment (Partial) . Document filed by Charlie Savage, The New York Times Company.(McCraw, David) (Entered: 06/10/2016)
2016-06-10	49	MEMORANDUM OF LAW in Support re: 48 CROSS MOTION for Summary Judgment (Partial) . . Document filed by Charlie Savage, The New York Times Company. (McCraw, David) (Entered: 06/10/2016)
2016-06-10	50	DECLARATION of David E. McCraw in Support re: 48 CROSS MOTION for Summary Judgment (Partial) .. Document filed by Charlie Savage, The New York Times Company. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(McCraw, David) (Entered: 06/10/2016)
2016-07-08	51	MEMORANDUM OF LAW in Opposition re: 48 CROSS MOTION for Summary Judgment (Partial) . and in Further Support of Government's Motion for Partial Summary Judgment . Document filed by United States Department of Justice. (Vargas, Jeannette) (Entered: 07/08/2016)
2016-07-22	52	REPLY MEMORANDUM OF LAW in Support re: 48 CROSS MOTION for Summary Judgment (Partial) . . Document filed by Charlie Savage, The New York Times Company. (McCraw, David) (Entered: 07/22/2016)
2016-09-09	53	NOTICE of Withdrawal of Counsel. Document filed by Charlie Savage, The New York Times Company. (McCraw, David) (Entered: 09/09/2016)
2017-01-06	54	NOTICE OF APPEARANCE by Ian MacDougall on behalf of Charlie Savage, The New York Times Company. (MacDougall, Ian) (Entered: 01/06/2017)
2017-02-21	55	OPINION AND ORDER: For the foregoing reasons, DOJ's motion for partial summary judgment is granted in part and denied in part; and the Times's cross-motion for partial summary judgment is granted in part and denied in part. The Government is hereby ordered to make public the challenged documents, with appropriate redactions, within 20 days of this order, pursuant to 5 U.S.C. § 552. The parties are directed to submit five-page letter motions on whether the Court should assess reasonable attorney fees and costs against the United States within 30 days of this order, pursuant to 5 U.S.C. § 552(a)(4)(E). The Clerk of Court is directed to close the motions at Docket Numbers 40 and 48. Motions terminated: 40 SECOND MOTION for Summary Judgment , filed by United States Department of Justice, 48 CROSS MOTION for Summary Judgment (Partial) . filed by The New York Times Company, Charlie Savage. (Signed by Judge J. Paul Oetken on 2/21/2017) (jwh) (Entered: 02/21/2017)
2017-02-27	56	CONSENT LETTER MOTION to Stay Opinion and Order dated February 21, 2017 (proposed Stipulation and Order) and Request to Enter Final Judgment addressed to Judge J. Paul Oetken from Tara M. La Morte dated February 27, 2017. Document filed by United States Department of Justice. (Attachments: # 1 Executed proposed stipulation and order)(La Morte, Tara) (Entered: 02/27/2017)
2017-02-28	57	STIPULATION AND ORDER STAYING COURT'S ORDER DATED FEBRUARY 21, 2017: IT IS HEREBY STIPULATED AND ORDERED as follows: 1. The Disclosure Order is stayed in its entirety for a period of 60 days following entry of judgment by this Court. 2. In the event the Government timely files a notice of appeal, the Disclosure Order is further stayed through issuance of a mandate resolving that appeal. 3. In the event neither party timely files a notice of appeal, the parties shall submit letter motions concerning attorney's fees in accordance with the Disclosure Order within 30 days of the expiration of the parties' time to appeal. And as set forth herein. SO ORDERED. Case stayed., Motions terminated: 56 CONSENT LETTER MOTION to Stay Opinion and Order dated February 21, 2017 (proposed Stipulation and Order) and Request to Enter Final Judgment addressed to Judge J. Paul Oetken from Tara M. La Morte dated February 27, 2017 filed by United States Department of Justice. (Signed by Judge J. Paul Oetken on 2/28/2017) (ama) (Entered: 02/28/2017)
2017-04-25	58	ORDER OF FINAL JUDGMENT: IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Plaintiffs have final judgment consistent with the Opinions and Orders referred to above, and in all other respects the Government has final judgment. The clerk shall enter judgment accordingly. SO ORDERED. (Signed by Judge J. Paul Oetken on 4/24/2017) (ama) (Entered: 04/25/2017)
2017-04-25		Transmission to Judgments and Orders Clerk. Transmitted re: 58 Order,, to the Judgments and Orders Clerk. (ama) (Entered: 04/25/2017)
2017-04-28	59	CLERK'S JUDGMENT: That for the reasons stated in the Court's Order of Final Judgment dated April 24, 2017, the Government's first Motion for Summary Judgment is granted in part and denied in part; Plaintiffs' first Motion for Partial Summary Judgment is granted in part and denied in part; the Government's Second Motion for Summary Judgment is granted in part and denied in part; Plaintiffs' Cross Motion for Partial Summary Judgment is granted in part and denied in part; the Court stays the Government's obligation to disclose material as directed in its Opinion and Order dated February 21, 2017; Plaintiffs have final judgment consistent with the Opinion and Orders referred to above, and in all other respects to the Government has final judgment. (Signed by Clerk of Court Ruby Krajick on 04/28/2017) (Attachments: # 1 Notice of Right to Appeal, # 2 Notice of Right to Appeal)(dt) (Entered: 04/28/2017)
2017-06-26	60	FILING ERROR - NO ORDER SELECTED FOR APPEAL - NOTICE OF APPEAL. Document filed by United States Department of Justice. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Vargas, Jeannette) Modified on 6/27/2017 (tp). (Entered: 06/26/2017)
2017-06-27		***NOTICE TO ATTORNEY REGARDING DEFICIENT APPEAL. Notice to attorney Vargas, Jeannette to RE-FILE Document No. 60 Notice of Appeal. The filing is deficient for the following reason(s): the order/judgment being appealed was not selected; the filing fee was not paid. Re-file the appeal using the event type Corrected Notice of Appeal found under the event list Appeal Documents - attach the correct signed PDF - select the correct named filer/filers - select the correct order/judgment being appealed. (tp) (Entered: 06/27/2017)
2017-07-05	61	CORRECTED NOTICE OF APPEAL re: 60 Notice of Appeal, 59 Clerk's Judgment,,,. Document filed by United States Department of Justice. (Vargas, Jeannette) (Entered: 07/05/2017)
2017-07-05		Appeal Fee Not Required for 61 Corrected Notice of Appeal. Appeal filed by U.S. Government. (tp) (Entered: 07/05/2017)
2017-07-05		Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 61 Corrected Notice of Appeal. (tp) (Entered: 07/05/2017)
2017-07-05		Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 61 Corrected Notice of Appeal filed by United States Department of Justice, 60 Notice of Appeal, filed by United States Department of Justice were transmitted to the U.S. Court of Appeals. (tp) (Entered: 07/05/2017)
2017-07-05	62	NOTICE OF CROSS APPEAL from 59 Clerk's Judgment,,,. Document filed by Charlie Savage, The New York Times Company. Filing fee $ 505.00, receipt number 0208-13860590. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (McCraw, David) (Entered: 07/05/2017)
2017-07-06		Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 62 Notice of Cross Appeal. (tp) (Entered: 07/06/2017)
2017-07-06		Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 62 Notice of Cross Appeal, filed by The New York Times Company, Charlie Savage were transmitted to the U.S. Court of Appeals. (tp) (Entered: 07/06/2017)
2017-11-09	63	MANDATE of USCA (Certified Copy) as to 62 Notice of Cross Appeal, filed by The New York Times Company, Charlie Savage. USCA Case Number 17-2069. The parties in the above-referenced case have filed a stipulation withdrawing this appeal pursuant to FRAP 42. The stipulation is hereby "So Ordered".. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 11/09/2017. (nd) (Entered: 11/13/2017)
2019-09-27	64	USCA OPINION (Certified) as to 61 Corrected Notice of Appeal, filed by United States Department of Justice. USCA Case Number 17-2066. At issue in this case is whether a series of memoranda and accompanying exhibits prepared by a U.S. Attorney acting at the direction of then-Attorney General Eric Holder are protected from disclosure under Exemption 5 of the Freedom of Information Act. The district court (Oetken, J.) held that, because the memoranda were "expressly adopted" by Holder, Exemption 5 had been overcome, but a subsequent decision of this Court, American Civil Liberties Union v. National Security Agency, 925 F.3d 576 (2d Cir. 2019), has now clarified that the "express adoption" exception to Exemption 5 does not apply in the instant context. This leaves the issue of waiver. The Court concludes that Mr. Holder's public statements only waived the work product privilege with respect to one of the memoranda's conclusions, so that only the portions of the memoranda and exhibits related to that conclusion must be disclosed. For the foregoing reasons, the opinion of the District Court is affirmed in part and reversed in part. The Department of Justice is directed to release the portions of John Durham's memoranda and associated exhibits that relate to the conclusion that some of the detainees were not in CIA custody. The case is remanded to the District Court to effectuate such disclosure, consistent with this opinion.. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 09/27/2019. (nd) (Entered: 09/27/2019)
2019-09-27		Transmission of USCA Opinion to the District Judge re: 64 USCA Opinion. (nd) (Entered: 09/27/2019)
2020-02-03	65	MANDATE of USCA (Certified Copy) as to 61 Corrected Notice of Appeal, filed by United States Department of Justice. USCA Case Number 17-2066. IT IS HEREBY ORDERED, ADJUDGED and DECREED that the judgment of the district court is AFFIRMED IN PART and REVERSED IN PART. The Department of Justice is directed to release the portions of John Durham's memoranda and associated exhibits that relate to the conclusion that some of the detainees were not in CIA custody. The case is REMANDED to the district court to effectuate such disclosure, consistent with this Courts opinion.. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 02/03/2020. (Attachments: # 1 Opinion).(nd) (Entered: 02/03/2020)
2020-02-03		Transmission of USCA Mandate to the District Judge re: 65 USCA Mandate..(nd) (Entered: 02/03/2020)
2020-02-07	66	ORDER: The parties are directed to file a joint letter on or before February 20, 2020, updating the Court on the status of this action and stating their positions on what further proceedings are necessary to effectuate the necessary disclosures. So Ordered. (Signed by Judge J. Paul Oetken on 2/6/2020) (js) (Entered: 02/07/2020)
2020-02-20	67	LETTER addressed to Judge J. Paul Oetken from Jeannette A. Vargas dated 2/20/2020 re: Joint Status Report. Document filed by United States Department of Justice..(Vargas, Jeannette) (Entered: 02/20/2020)
2020-02-25	68	ORDER: THE PARTIES SHALL FILE A FURTHER STATUS LETTER ON OR BEFORE MARCH 23, 2020. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken) (Text Only Order) (Park, Isaac) (Entered: 02/25/2020)
2020-03-23	69	JOINT LETTER addressed to Judge J. Paul Oetken from David E. McCraw dated 03/23/2020 re: Status Report. Document filed by Charlie Savage, The New York Times Company..(McCraw, David) (Entered: 03/23/2020)
2020-03-24	70	ORDER: THE PARTIES SHALL FILE A FURTHER STATUS LETTER ON OR BEFORE APRIL 23, 2020. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken) (Text Only Order) (Park, Isaac) (Entered: 03/24/2020)
2020-04-23	71	LETTER addressed to Judge J. Paul Oetken from Jeannette A. Vargas dated 4/23/2020 re: Status Report. Document filed by United States Department of Justice..(Vargas, Jeannette) (Entered: 04/23/2020)
2020-04-24	72	ORDER: THE PARTIES SHALL FILE A FURTHER STATUS LETTER ON OR BEFORE APRIL 30, 2020. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken) (Text Only Order) (Park, Isaac) (Entered: 04/24/2020)
2020-04-30	73	STATUS REPORT. Joint Status Report Document filed by Charlie Savage, The New York Times Company..(McCraw, David) (Entered: 04/30/2020)
2020-05-04	74	ORDER: THE PARTIES SHALL FILE A FURTHER STATUS LETTER ON OR BEFORE JUNE 15, 2020. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken) (Text Only Order) (Park, Isaac) (Entered: 05/04/2020)
2020-06-16	75	STATUS REPORT. Joint Status Report Document filed by Charlie Savage, The New York Times Company..(McCraw, David) (Entered: 06/16/2020)
2020-06-22	76	MEMO ENDORSEMENT on re: 75 Status Report filed by The New York Times Company, Charlie Savage. ENDORSEMENT: Granted. The proposed briefing schedule is so ordered., Brief due by 8/31/2020., Responses due by 9/21/2020, Replies due by 10/2/2020. (Signed by Judge J. Paul Oetken on 6/22/2020) (rj) (Entered: 06/23/2020)
2020-08-24	77	LETTER MOTION for Extension of Time to File Motion Papers addressed to Judge J. Paul Oetken from Jeannette A. Vargas dated 8/24/2020. Document filed by United States Department of Justice..(Vargas, Jeannette) (Entered: 08/24/2020)
2020-08-24	78	ORDER granting 77 Motion for Extension of Time. GRANTED. DEFENDANT SHALL FILE ITS RENEWED MOTION FOR SUMMARY JUDGMENT ON OR BEFORE SEPTEMBER 28, 2020. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (bh) (Entered: 08/24/2020)
2020-09-28	79	MOTION for Summary Judgment . Document filed by United States Department of Justice..(Vargas, Jeannette) (Entered: 09/29/2020)
2020-09-29	80	DECLARATION of Vanna Blaine in Support re: 79 MOTION for Summary Judgment .. Document filed by United States Department of Justice..(Vargas, Jeannette) (Entered: 09/29/2020)
2020-09-29	81	MEMORANDUM OF LAW in Support re: 79 MOTION for Summary Judgment . . Document filed by United States Department of Justice..(Vargas, Jeannette) (Entered: 09/29/2020)
2020-09-29	82	DECLARATION of Jeannette Vargas in Support re: 79 MOTION for Summary Judgment .. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B).(Vargas, Jeannette) (Entered: 09/29/2020)
2020-10-07	83	JOINT LETTER MOTION for Leave to File Cross-Motion for Summary Judgment, Oppositions, and Replies addressed to Judge J. Paul Oetken from David E. McCraw dated 10/07/2020. Document filed by Charlie Savage, The New York Times Company..(McCraw, David) (Entered: 10/07/2020)
2020-10-09	84	ORDER granting 83 Letter Motion for Leave to File Document. GRANTED. PLAINTIFFS SHALL FILE THEIR OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT BY OCTOBER 30, 2020. DEFENDANT SHALL THEN FILE ITS OPPOSITION AND REPLY BY NOVEMBER 13, 2020, AND PLAINTIFFS SHALL FILE THEIR REPLY ON NOVEMBER 20, 2020. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (bh) (Entered: 10/09/2020)
2020-10-30	85	CROSS MOTION for Summary Judgment . Document filed by Charlie Savage, The New York Times Company..(McCraw, David) (Entered: 10/30/2020)
2020-10-30	86	MEMORANDUM OF LAW in Support re: 85 CROSS MOTION for Summary Judgment . . Document filed by Charlie Savage, The New York Times Company..(McCraw, David) (Entered: 10/30/2020)
2020-11-12	87	LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge J. Paul Oetken from Jeannette A. Vargas dated 11/12/2020. Document filed by United States Department of Justice..(Vargas, Jeannette) (Entered: 11/12/2020)
2020-11-13	88	ORDER granting 87 Letter Motion for Extension of Time to File Response/Reply: GRANTED. THE GOVERNMENT SHALL FILE ITS REPLY BY NOVEMBER 20, 2020. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 11/13/2020)
2020-11-20	89	REPLY MEMORANDUM OF LAW in Support re: 79 MOTION for Summary Judgment ., 85 CROSS MOTION for Summary Judgment . Opposition Memorandum of Law . Document filed by United States Department of Justice..(Vargas, Jeannette) (Entered: 11/20/2020)
2020-11-23	90	LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge J. Paul Oetken from David E. McCraw dated 11/23/2020. Document filed by Charlie Savage, The New York Times Company..(McCraw, David) (Entered: 11/23/2020)
2020-11-25	91	ORDER granting 90 Letter Motion for Extension of Time to File Response/Reply: GRANTED. PLAINTIFFS SHALL FILE THEIR REPLY IN FURTHER SUPPORT OF THEIR CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BY NOVEMBER 30, 2020. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 11/25/2020)
2020-11-30	92	REPLY MEMORANDUM OF LAW in Support re: 85 CROSS MOTION for Summary Judgment . . Document filed by Charlie Savage, The New York Times Company..(McCraw, David) (Entered: 11/30/2020)
2021-07-23	93	OPINION AND ORDER: re: 79 MOTION for Summary Judgment . filed by United States Department of Justice, 85 CROSS MOTION for Summary Judgment . filed by The New York Times Company, Charlie Savage. For the foregoing reasons, DOJ's motion for summary judgment is GRANTED, and the Times's cross-motion for summary judgment is denied. The Clerk of Court is directed to close the motions at Docket Numbers 79 and 85, and to close this case. So Ordered. (Signed by Judge J. Paul Oetken on 7/23/2021) (js) Transmission to Orders and Judgments Clerk for processing. (Entered: 07/23/2021)
2021-07-23	94	CLERK'S JUDGMENT re: 93 Memorandum & Opinion in favor of United States Department of Justice against The New York Times Company, Charlie Savage. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated July 23, 2021, DOJ's motion for summary judgment is GRANTED, and the Times's cross-motion for summary judgment is denied; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 7/23/2021) (Attachments: # 1 Right to Appeal) (km) (Entered: 07/23/2021)
Hide Docket Events