Case Detail

FOIA Project Annotation: Judge Ketanji Brown Jackson has ruled that the Justice Department may withhold under Exemption 7(A) (ongoing investigation or proceeding) an audio recording made by a confidential source pertaining to an investigation of Reliance Medical Systems for fraud, even though portions of the transcript of the recording were publicly disclosed as part of a False Claims Act suit brought against Adam Pike and Bret Berry. However, Jackson found the government had waived its ability to claim a FOIA exemption for those portions of the transcript that had been made public. Pike and Berry learned of the existence of the audio recording and transcript as a result of the FCA suit. They requested a copy of the audio recording and the transcript, arguing the agency had waived its ability to withhold the records by making portions of the transcript public. The Civil Division found both the audio recording and the transcript and withheld them under Exemption 7(A) as well as Exemption 7(D) (confidential sources). Since Jackson found Exemption 7(A) covered the records, she did not address the 7(D) claim. Finding the records qualified as law enforcement records, Jackson noted that "the record evidence plainly establishes that there is a connection between these plaintiffs and a possible violation of federal law, which is all that is required to support DOJ's assertion that the law-enforcement-purposes requirement has been met." Pike and Berry's primary objection was that the agency had waived its right to withhold any of the records because it had publicly disclosed portions of the transcript. Rejecting the claim, Jackson observed that "this contention is unavailing as a matter of pure logic: the mere fact that the government has chosen to release some parts of a protected documentâ€"and bear the brunt of the harm that resultsâ€"does not a fortiori mean that releasing the entire document would not be harmful." But she agreed with Pike and Berry that the government had waived any FOIA claim to withhold the exact portions of the transcript that had already been made public. However, she concluded the waiver applied only to the published portions and to nothing else. She explained that "plaintiffs have not shown that the government has released from the transcript of the audio recording any publicly available information other than the excerpts quoted in the FCA complaint and press release. And nowhere in the FOIA statute or in related case law is the government required to produce otherwise-exempted information on the ground that withholding it would allegedly result in unfairness or disadvantage to the requesting party." Jackson found the waiver did not apply to the audio recording either. She noted that "although the transcript excerpts that have been publicly quoted contain words that are identical to the words spoken in the audio version of those same excerpts, DOJ asserts that the voice inflection in the audio version reveals additional information; specifically the identity of the individual who created the recording. This information is entitled to be withheld under Exemption 7(A) and no part of the audio version of the recorded conversation has ever been publicly disclosed, which means that the government has not waived its right to continue to withhold the information that the audio recording conveys pursuant to Exemption 7(A)."
Issues: Exemption 7(A) - Interference with ongoing investigation, Public domain

Date Filed	Doc #	Docket Text
2015-03-02	1	COMPLAINT against UNITED STATES DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-4009229) filed by ADAM PIKE, BRET M BERRY. (Attachments: # 1 Exhibit 1-7, # 2 Civil Cover Sheet, # 3 Summons to United States Department of Justice, # 4 Summons to United States Attorney General, # 5 Summons to United States Attorney for the District of Columbia)(Carroll, Kelly) (Entered: 03/02/2015)
2015-03-02		Case Assigned to Judge Ketanji Brown Jackson. (sth, ) (Entered: 03/02/2015)
2015-03-02	2	SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth, ) (Entered: 03/02/2015)
2015-03-13	3	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Patric Hooper, :Firm- Hooper, Lundy & Bookman, P.C., :Address- 1875 Century Park East, Suite 1600, Los Angeles, CA 90067. Phone No. - 310-551-8165. Fax No. - 310-551-8181 Filing fee $ 100, receipt number 0090-4021743. Fee Status: Fee Paid. by BRET M BERRY, ADAM PIKE (Attachments: # 1 Exhibit A Declaration of Patric Hooper, # 2 Exhibit B Proposed Order)(Carroll, Kelly) (Entered: 03/13/2015)
2015-03-13		MINUTE ORDER granting 3 Motion for Leave to Appear Pro Hac Vice. It is hereby ORDERED that Patric Hooper is admitted pro hac vice in this matter as counsel for Plaintiffs. Signed by Judge Ketanji Brown Jackson on 3/13/2015. (lckbj2) (Entered: 03/13/2015)
2015-03-23	4	NOTICE of Appearance by April Denise Seabrook on behalf of UNITED STATES DEPARTMENT OF JUSTICE (Seabrook, April) (Entered: 03/23/2015)
2015-03-30	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/17/2015. ( Answer due for ALL FEDERAL DEFENDANTS by 4/16/2015.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General March 6, 2015., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF JUSTICE served on 3/6/2015 (Attachments: # 1 Exhibit A USPS Return Receipts & Tracking Chart)(Carroll, Kelly) (Entered: 03/30/2015)
2015-03-31	6	GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives; failure to conform to this Order may, when appropriate, result in the imposition of sanctions. Signed by Judge Ketanji Brown Jackson on 03/31/2015. (lckbj1) (Entered: 03/31/2015)
2015-04-03	7	Joint MOTION for Briefing Schedule by UNITED STATES DEPARTMENT OF JUSTICE (Seabrook, April) (Entered: 04/03/2015)
2015-04-05		MINUTE ORDER granting 7 Motion for Briefing Schedule. It is hereby ORDERED that the parties cross-motions for summary judgment are due by 4/23/2015 and responses to cross-motions are due by 4/30/2015. Signed by Judge Ketanji Brown Jackson on 04/05/2014. (lckbj1) (Entered: 04/05/2015)
2015-04-05		MINUTE ORDER STAYING Defendant's obligation to answer the Complaint until 30 days after the Court's resolution of the forthcoming cross-motions for summary judgment. Signed by Judge Ketanji Brown Jackson on 04/05/2015. (lckbj1) (Entered: 04/05/2015)
2015-04-23	8	MOTION for Summary Judgment by BRET M. BERRY, ADAM PIKE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration of Patric Hooper, # 4 Exhibit A to Declaration of Patric Hooper, # 5 Text of Proposed Order)(Hooper, Patric) (Entered: 04/23/2015)
2015-04-23	9	Consent MOTION for Extension of Time to File Motion for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE (Seabrook, April) (Entered: 04/23/2015)
2015-04-24		MINUTE ORDER granting, for good cause shown, 9 Defendant's Motion for Extension of Time to File Motion for Summary Judgment, nunc pro tunc to 4/23/2015. Defendant's Motion for Summary Judgment is due by 4/24/2015. Signed by Judge Ketanji Brown Jackson on 4/24/2015. (lckbj1) (Entered: 04/24/2015)
2015-04-24	10	Cross MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Declaration J. Kovakas, # 4 Text of Proposed Order, # 5 Certificate of Service)(Seabrook, April) (Entered: 04/24/2015)
2015-04-27	11	MOTION for Leave to File Ex Parte and In Camera Declarations by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support)(Seabrook, April) (Entered: 04/27/2015)
2015-04-27	12	Memorandum in opposition to re 11 MOTION for Leave to File Ex Parte and In Camera Declarations filed by BRET M. BERRY, ADAM PIKE. (Hooper, Patric) (Entered: 04/27/2015)
2015-04-29		MINUTE ORDER. Upon consideration of the Defendant's 11 Motion for Leave to File Ex Parte and In Camera Declarations, and Plaintiffs' Opposition thereto, it is hereby ORDERED that Defendant's 11 Motion is GRANTED for good cause shown. Signed by Judge Ketanji Brown Jackson on 04/29/2015. (lckbj1) (Entered: 04/29/2015)
2015-04-30	13	NOTICE of Ex Parte, In Camera Filing by UNITED STATES DEPARTMENT OF JUSTICE re 10 Cross MOTION for Summary Judgment , Order on Motion for Leave to File, (Seabrook, April) (Entered: 04/30/2015)
2015-04-30	14	Memorandum in opposition to re 10 Cross MOTION for Summary Judgment filed by BRET M. BERRY, ADAM PIKE. (Hooper, Patric) (Entered: 04/30/2015)
2015-04-30	15	Memorandum in opposition to re 8 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Statement of Facts, # 2 Exhibit A - to Responsive Statement of Facts)(Seabrook, April) (Entered: 04/30/2015)
2015-05-04	16	NOTICE OF SUPPLEMENTAL AUTHORITY by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Exhibit A - Order Granting Stay, # 2 Exhibit B - Docket of US v. Reliance Medical)(Seabrook, April) (Entered: 05/04/2015)
2016-03-18		MINUTE ORDER. The exhibits in Plaintiffs' [1-1] Attachment #1 to Complaint do not conform to this Court's Local Rule 5.4(f)(1), which instructs that an individual's Social Security number "shall be excluded, or redacted where inclusion is necessary, from all electronically filed documents[,]" LCvR 5.4(f). Accordingly, it is hereby ORDERED that by 3/25/2016, Plaintiffs shall file an ERRATA attaching an updated copy of their [1-1] Attachment #1 to Complaint that fully complies with this Court's Local Rules. Any future submissions by either party that do not fully comply with the Local Rules of this Court will not be accepted. Signed by Judge Ketanji Brown Jackson on March 18, 2016. (lckbj3, ) (Entered: 03/18/2016)
2016-03-22	17	ERRATA re Dkt. No. 1-1 by BRET M. BERRY, ADAM PIKE 1 Complaint, filed by ADAM PIKE, BRET M. BERRY. (Attachments: # 1 Redacted Attachment #1 (Exs. 1-7) to Complaint)(Carroll, Kelly) (Entered: 03/22/2016)
2016-08-08	18	SUPPLEMENTAL MEMORANDUM to re 8 MOTION for Summary Judgment filed by BRET M. BERRY, ADAM PIKE. (Hooper, Patric) (Entered: 08/08/2016)
2016-09-20	19	ORDER granting in part and denying in part Plaintiffs' 8 Motion for Summary Judgment and granting in part and denying in part Defendant's 10 Motion for Summary Judgment. See attached document for details. Signed by Judge Ketanji Brown Jackson on 09/20/2016. (lckbj2) (Entered: 09/20/2016)
2016-09-20	20	MEMORANDUM OPINION granting in part and denying in part Plaintiffs' 8 Motion for Summary Judgment and granting in part and denying in part Defendant's 10 Motion for Summary Judgment. See attached document for details. Signed by Judge Ketanji Brown Jackson on 09/20/2016. (lckbj2) (Entered: 09/20/2016)
2016-09-21	21	NOTICE OF SUBSTITUTION OF COUNSEL by John Cuong Truong on behalf of UNITED STATES DEPARTMENT OF JUSTICE Substituting for attorney April Denise Seabrook (Truong, John) (Entered: 09/21/2016)
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