Case Detail

FOIA Project Annotation: A federal court in California has ruled that the SEC has failed to show that it conducted an adequate search for records pertaining to the Empire State Realty Trust or that it has sufficiently supported its Exemption 4 (confidential business information) or Exemption 5 (privileges) claims. Responding to two FOIA requests from Richard Edelman, the agency located 1,442 pages of responsive records, withholding some records under a variety of exemptions. The agency also discovered the existence of two CDs containing 44.000 documents prepared by Malkin Holdings for use in a class-action suit that were probably responsive to Edelman's requests, but which the agency withheld entirely under Exemption 4. The court found that "nowhere in [the agency's] declarations does [its affiant] describe in any meaningful detail the process or procedures by which the SEC undertook the searches for records responsive to Plaintiff's requests." As to the status of the Malkin Index, the court pointed out that "although the SEC has identified the type of injury Malkin might suffer, the SEC has not put forward a detailed explanation of how the injury would result from disclosure of the documents." The court added that "in particular, the Court is not convinced that the Malkin Index, which the SEC indicates is a 'spreadsheet' that describes an 'index of documents [Malkin] produced in 'class action litigation' could ever be considered confidential under Exemption 4." Turning to the agency's Exemption 5 claims, the court observed that "the record and admissible evidence before it is insufficient to make such a determination."
Issues: Adequacy - Search, Exemption 4 - Confidential business information, Exemption 5 - Privileges

Date Filed	Doc #	Docket Text
2015-12-08	1	COMPLAINT against Securities and Exchange Commission ( Filing fee $ 400 receipt number 0974-8630426.), filed by Richard Edelman. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18) The new case number is 3:15-cv-2750-BEN-BGS. Judge Roger T. Benitez and Magistrate Judge Bernard G. Skomal are assigned to the case. (Aguirre, Gary)(fth) (Entered: 12/08/2015)
2015-12-08	2	Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (fth) (Entered: 12/08/2015)
2015-12-10	3	SUMMONS Returned Executed by Richard Edelman. All Defendants served. (Aguirre, Gary) (knb). (Entered: 12/10/2015)
2016-01-08	4	ANSWER to 1 Complaint, by Securities and Exchange Commission. (Attachments: # 1 Proof of Service)(Parker, Katherine)Attorney Katherine Lind Parker added to party Securities and Exchange Commission(pty:dft) (knb). (Entered: 01/08/2016)
2016-01-08	5	NOTICE AND ORDER for Early Neutral Evaluation Conference. Early Neutral Evaluation set for 3/21/2016 01:30 PM before Magistrate Judge Bernard G. Skomal. Signed by Magistrate Judge Bernard G. Skomal on 1/8/2016.(jao)(jrd) (Entered: 01/09/2016)
2016-03-07	6	JOINT DISCOVERY PLAN by Securities and Exchange Commission (Statement Regarding Discovery) (Attachments: # 1 Proof of Service)(Parker, Katherine) (knb). (Entered: 03/07/2016)
2016-03-14	7	NOTICE: The Court HEREBY converts the in-person Early Neutral Evaluation Conference scheduled for March 21, 2016 at 1:30 p.m. into an ATTORNEYS-ONLY, TELEPHONIC conference call. Counsel for Plaintiff is instructed to arrange and initiate a joint call with opposing counsel to the Court at (619) 557-2993 on the day and at the time indicated above. Again, no in-person appearances are permitted. Counsel shall appear telephonically as instructed herein. (no document attached) (mw) (Entered: 03/14/2016)
2016-03-21	8	Minute Entry for proceedings held before Magistrate Judge Bernard G. Skomal: Telephonic Early Neutral Evaluation Conference held on 3/21/2016. Court to issue order setting telephonic status conference.(Plaintiff Attorney Gary Aguirre). (Defendant Attorney Katherine Parker). (no document attached) (mw) (Entered: 03/21/2016)
2016-03-21	9	NOTICE OF FURTHER TELECONFERENCE: Following the Court's March 21, 2016 telephonic ENE, the Court ORDERS counsel for the parties to meet and confer regarding the categories of documents at issue in this case and the feasibility of a Vaughn index. The Court will hold a further telephonic conference on May 4, 2016 at 10:00 a.m. Plaintiff's attorney is ordered to arrange and initiate a joint call with opposing counsel to chambers at (619) 557-2993 on the day and at the time indicated above. (no document attached) (mw) (Entered: 03/21/2016)
2016-05-04	10	Minute Order for proceedings held before Magistrate Judge Bernard G. Skomal:A telephonic Status Conference was held on 5/4/2016. Counsel are directed to meet and confer further regarding categorization of documents. Counsel for Defendant has agreed to make an SEC representative available as an additional resource during the parties' meet and confer. The Court will hold a further telephonic Status Conference on May 25,2016 at 10:00 AM. Counsel for Defendant is instructed to initiate a joint call with opposing counsel to the Court at (619) 557-2993 on the day and time indicated above. (Plaintiff Attorney Gary Aguirre).(Defendant Attorney Katherine Parker). (no document attached) (mw) (Entered: 05/04/2016)
2016-05-25	11	Minute Entry for proceedings with chambers of Magistrate Judge Bernard G. Skomal: Telephonic Status Conference on 5/25/2016. The parties called in to report on the status of their most recent meet and confer. The parties also lodged with Judge Skomal's chambers, supplemental status conference statements. An impasse has been reached with respect to Plaintiff's request for an index from the Concordance document management system. The Court will accept briefing from the parties on the issue. Plaintiff's opening motion must be filed on or before June 6, 2016. An opposition must be filed on or before June 20, 2016. A reply must be filed on or before June 27, 2016. The Court will inform the parties if oral argument is requested. (Plaintiff Attorney Gary Aguirre). (Defendant Attorney Katie Parker). (no document attached) (mw) (Entered: 05/25/2016)
2016-08-08	12	NOTICE of Hearing: The Court will hold a telephonic status conference in this case on September 8, 2016 at 10:00 a.m. Accordingly, Plaintiffs counsel is ORDERED to initiate a joint call with opposing counsel to Judge Skomals chambers at (619) 557-2993 on the day and at the time indicated above. To prepare for the teleconference, the parties shall also meet and confer and thereafter file a joint status conference statement no later than August 25, 2016. The status conference statement should suggest a proposed deadline for the filing of any anticipated motions for summary judgment. (no document attached) (mw) (Entered: 08/08/2016)
2016-08-18	13	NOTICE of Joint Status Report by Securities and Exchange Commission (Attachments: # 1 Proof of Service)(Parker, Katherine) (knb). (Entered: 08/18/2016)
2016-08-19	14	NOTICE of Change of Hearing: Based on the representations made in the parties' joint status report, the Court HEREBY CONTINUES the telephonic Status Conference currently set for September 8, 2016 to October 6, 2016 at 10:00 AM before Magistrate Judge Bernard G. Skomal. In advance of the teleconference, the parties shall file an updated status conference statement addressing whether production of the index identified in the parties' joint statement has been, or will be, produced. The updated status conference statement is due to the Court no later than September 29, 2016. (no document attached) (mw) (Entered: 08/19/2016)
2016-09-29	15	STATUS REPORT Joint Status Report by Securities and Exchange Commission. (Attachments: # 1 Exhibit Plaintiff's Exhibits A-C, # 2 Proof of Service)(Parker, Katherine) (dlg). (Entered: 09/29/2016)
2016-10-11	16	Minute Entry for proceedings with chambers of Magistrate Judge Bernard G. Skomal: Telephonic Status Conference held on October 6, 2016. The parties report that the index at issue has not been produced and Defendant does not know when a final decision on its production will be reached. The Court sets a further status conference for November 3, 2016 at 9:30 a.m. Plaintiffs counsel shall initiate a joint call with opposing counsel to Judge Skomals chambers at (619) 557-2993 on the day and time indicated. The parties shall file an updated status conference statement no later than October 28, 2016 indicating briefly whether the index has been produced or if Defendant has reached a final decision on its production and propose a deadline for filing any motions for summary judgment. (Plaintiff Attorney Gary Aguirre). (Defendant Attorney Katherine Lind Parker). (no document attached) (rxa) (Entered: 10/11/2016)
2016-10-28	17	STATUS REPORT by Securities and Exchange Commission. (Attachments: # 1 Exhibit, # 2 Proof of Service)(Parker, Katherine) (knb). (Entered: 10/28/2016)
2016-11-03	18	Minute Entry for proceedings held with chambers of Magistrate Judge Bernard G. Skomal: Status Conference held on 11/3/2016. The parties will be filing a joint motion proposing a schedule for motions for summary judgment.(Plaintiff Attorney Gary Aguirre). (Defendant Attorney Katherine Parker). (no document attached) (rxa) (Entered: 11/03/2016)
2016-11-04	19	NOTICE of Joint Proposed Briefing Schedule by Securities and Exchange Commission (Attachments: # 1 Proof of Service)(Parker, Katherine) (Entered: 11/04/2016)
2017-01-06	20	NOTICE of Modified Joint Proposed Briefing Schedule by Securities and Exchange Commission (Attachments: # 1 Proof of Service)(Parker, Katherine) Modified 1/9/2017 to change Notice into a Motion (dxj). (Entered: 01/06/2017)
2017-01-10	21	ORDER Granting in Part 20 Joint Proposed Briefing Schedule. Signed by Judge Roger T. Benitez on 1/10/2017. (knb) (Entered: 01/11/2017)
2017-01-24	22	MOTION for Partial Summary Judgment by Securities and Exchange Commission. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Carin Cozza with attached Vaughn Index, # 3 Declaration of Thomas Keltner Jr. dated August 26, 2016, # 4 Declaration of Thomas Keltner Jr. dated January 11, 2017, # 5 Declaration of Katherine L. Parker, # 6 Proof of Service)(Parker, Katherine) (Entered: 01/24/2017)
2017-02-07	23	Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment in Part by Richard Edelman. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration, # 3 Exhibit, # 4 Declaration, # 5 Declaration, # 6 Proof of Service)(Aguirre, Gary) (Attachment 4 replaced with modifications per 30 Order on 8/30/2017) (knb) (Entered: 02/07/2017)
2017-02-14	24	NOTICE Regarding Reply Brief by Securities and Exchange Commission (Attachments: # 1 Proof of Service)(Parker, Katherine) (Entered: 02/14/2017)
2017-02-21	25	REPLY to Response to Motion re 23 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment in Part , 22 MOTION for Partial Summary Judgment filed by Securities and Exchange Commission. (Attachments: # 1 Declaration of Carin M. Cozza with Exhibits, # 2 Proof of Service)(Parker, Katherine) (Entered: 02/21/2017)
2017-02-28	26	REQUEST FOR JUDICIAL NOTICE by Richard Edelman re 23 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment in Part (Attachments: # 1 Exhibit, # 2 Proof of Service)(Aguirre, Gary) (Entered: 02/28/2017)
2017-02-28	27	REPLY to Response to Motion re 23 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment in Part filed by Richard Edelman. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Declaration, # 9 Declaration, # 10 Proof of Service)(Aguirre, Gary) (Entered: 02/28/2017)
2017-03-02	28	Ex Parte MOTION to Seal a Previously Filed Document Unopposed Motion re 27 Reply to Response to Motion, 23 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment in Part by Richard Edelman. (Attachments: # 1 Declaration, # 2 Proof of Service)(Aguirre, Gary) (aef). (Entered: 03/02/2017)
2017-03-14	29	NOTICE: The Mandatory Settlement Conference tentatively scheduled for April 10, 2017 is VACATED. The parties must JOINTLY contact the Court regarding scheduling a Mandatory Settlement Conference within 3 days of a ruling on the pending motions for summary judgment. (no document attached) (rxa) (Entered: 03/14/2017)
2017-08-29	30	ORDER Granting Unopposed 28 Ex Parte Motion to Strike Exhibits. Signed by Judge Roger T. Benitez on 8/28/2017. (knb) (Entered: 08/30/2017)
2017-09-27	31	ORDER: Denying Defendant's 22 Motion for Partial Summary Judgment; and (2) Granting in Part and Denying in Part Plaintiff's 23 Cross-Motion for Summary Judgment. Signed by Judge Roger T. Benitez on 9/27/2017. (knb) (Entered: 09/27/2017)
2017-10-04	32	Ex Parte MOTION to Continue Defendant's Deadline to File Renewed Motion for Summary Judgment by Securities and Exchange Commission. (Attachments: # 1 Declaration of Carin Cozza, # 2 Declaration of Katherine Parker, # 3 Proof of Service)(Parker, Katherine)(knb). (Entered: 10/04/2017)
2017-10-06	33	RESPONSE to Motion re 32 Ex Parte MOTION to Continue Defendant's Deadline to File Renewed Motion for Summary Judgment filed by Richard Edelman. (Aguirre, Gary) (knb). (Entered: 10/06/2017)
2017-10-11	34	ORDER granting 32 Defendant's ex parte Motion for extension of time. The SEC may file its renewed motion for summary judgment up to and including 11/17/2017. Signed by Judge Roger T. Benitez on 10/10/2017. (jpp) (Entered: 10/11/2017)
2017-11-02	35	Minute Entry for proceedings held with Chambers of Magistrate Judge Bernard G. Skomal: Counsel jointly contacted Chambers on 11/2/17 regarding a dispute about when a particular issue should be raised in a motion for summary judgment before the District Judge. (Plaintiff Attorney Gary J Aguirre). (Defendant Attorney Katherine Lind Parker). (no document attached) (rxa) (Entered: 11/03/2017)
2017-11-03	36	Minute Entry for proceedings held with Chambers of Magistrate Judge Bernard G. Skomal: Counsel jointly contacted Chambers on 11/3/17 regarding the dispute raised on 11/2/17. Counsel indicated during the call that they reached an agreement concerning how the issue should be raised. Judge Skomal will not issue an order regarding the parties issue as it concerns what issues may be raised before the District Judge. (Plaintiff Attorney Gary J Aguirre). (Defendant Attorney Katherine Lind Parker). (no document attached) (rxa) (Entered: 11/03/2017)
2017-11-17	37	MOTION for Partial Summary Judgment (Renewed) by Securities and Exchange Commission. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Carin Cozza, # 3 Exhibit A to Cozza Declaration (Vaughn Index), # 4 Declaration of Benedict Jackson, # 5 Declaration of Raymond McInerney, # 6 Proof of Service)(Parker, Katherine) (knb). (Entered: 11/17/2017)
2017-12-11	38	Joint MOTION for Summary Judgment (1) Resolving Pending Summary Judgment Motion and (2) Scheduling of Motions on Open Issues by Richard Edelman. (Attachments: # 1 Proof of Service)(Aguirre, Gary) (anh). (Entered: 12/11/2017)
2017-12-12	39	ORDER denying 38 Joint Motion for Proposed Briefing Schedule. Signed by Judge Roger T. Benitez on 12/12/2017. (anh) Modified docket text on 12/13/2017 (anh). (Entered: 12/13/2017)
2017-12-17	40	Renewed Joint MOTION for Partial Summary Judgment (Order on Partial Summary Judgment Motions and Setting Further Briefing Schedule) by Securities and Exchange Commission. (Attachments: # 1 Proof of Service)(Parker, Katherine) (dlg). Modified on 12/20/2017 to update docket text to reflect document (dlg). (Entered: 12/17/2017)
2017-12-18	41	RESPONSE in Opposition re 37 MOTION for Partial Summary Judgment (Renewed) filed by Richard Edelman. (Aguirre, Gary) (dlg). (Entered: 12/18/2017)
2018-01-11	42	ORDER (1) Denying as moot 37 Defendant's renewed Motion for Partial Summary Judgment; (2) Granting in part 40 renewed Joint Motion for proposed briefing schedule. Signed by Judge Roger T. Benitez on 1/10/2018. (jpp) (Entered: 01/11/2018)
2018-05-02	43	Joint MOTION to Continue Summary Judgment Briefing Dates by Securities and Exchange Commission. (Attachments: # 1 Proof of Service)(Parker, Katherine) (anh). (Entered: 05/02/2018)
2018-05-08	44	ORDER granting in part 43 Joint Motion For Extension of Time. Signed by Judge Roger T. Benitez on 5/7/2018. (anh) (Entered: 05/08/2018)
2018-06-28	45	Joint MOTION to Continue Summary Judgment Briefing by Securities and Exchange Commission. (Attachments: # 1 Proof of Service)(Parker, Katherine) (anh). (Entered: 06/28/2018)
2018-06-29	46	ORDER granting in part 45 Second Joint Motion for Extension of Time. Signed by Judge Roger T. Benitez on 6/29/2018. (anh) (Entered: 06/29/2018)
2018-07-27	47	**DOCUMENT WITHRAWN PER 48 , NOTICE OF SETTLEMENT** MOTION for Summary Judgment by Securities and Exchange Commission. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Katherine Parker, # 3 Declaration of Carin Cozza, # 4 Declaration of Raymond McInerney, # 5 Declaration of Benedict Jackson, # 6 Proof of Service)(Parker, Katherine)(acc). (anh). (Entered: 07/27/2018)
2018-08-15	48	NOTICE OF Settlememnt by Securities and Exchange Commission re 47 MOTION for Summary Judgment filed by Securities and Exchange Commission (Joint Notice regarding Withdrawal and Attorney Fees Motion) . (Attachments: # 1 Proof of Service)(Parker, Katherine) (anh). (Entered: 08/15/2018)
2018-08-17	49	Order Scheduling Settlement Disposition Conference. Joint Motion for Dismissal due: 9/17/2018. If a Joint Motion for Dismissal and Proposed Order for Dismissal are not submitted by 9/17/2018, then a telephonic attorneys-only Settlement Disposition Conference shall be held. Telephonic attorneys-only Settlement Disposition Conference set for 9/20/2018 10:15 AM before Magistrate Judge Bernard G. Skomal. Signed by Magistrate Judge Bernard G. Skomal on 8/17/2018.(acc) (Entered: 08/17/2018)
2018-09-17	50	NOTICE of Settlement (Joint) by Securities and Exchange Commission (Attachments: # 1 Proof of Service)(Parker, Katherine) (anh). (Entered: 09/17/2018)
2018-09-17	51	Order Scheduling Settlement Disposition Conference. Joint Motion for Dismissal due: 10/1/2018. If a Joint Motion for Dismissal and Proposed Order for Dismissal are not submitted by 10/1/2018, then a Settlement Disposition Conference shall be held. Settlement Disposition Conference set for 10/4/2018 10:30 AM before Magistrate Judge Bernard G. Skomal. Signed by Magistrate Judge Bernard G. Skomal on 9/17/2018.(anh) (Entered: 09/17/2018)
2018-10-04	52	Minute Entry for proceedings held with chambers of Magistrate Judge Bernard G. Skomal: Settlement Disposition Conference held on 10/4/2018. Telephonic Settlement Disposition Conference set for 10/23/2018 10:00 AM before Magistrate Judge Bernard G. Skomal. Conference will be vacated if Joint Motion to Dismiss is filed in advance of the Conference.(Plaintiff Attorney Gary J Aguirre). (Defendant Attorney Katherine Lind Parker). (no document attached) (rxa) (Entered: 10/05/2018)
2018-10-05	53	Joint MOTION to Dismiss with Prejudice by Securities and Exchange Commission. (Attachments: # 1 Proof of Service)(Parker, Katherine) (anh). (Entered: 10/05/2018)
2018-10-18	54	ORDER granting 53 Joint Motion to Dismiss. Signed by Judge Roger T. Benitez on 10/17/2018. (anh) (Entered: 10/18/2018)
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