Case Detail

FOIA Project Annotation: Judge Dabney Friedrich has ruled that the SEC properly withheld records under Exemption 5 (privileges), Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records) in response to a FOIA request from Nova Oculus Partners, a medical device company in California that was the subject of an enforcement action by the SEC for concealing the true identity of who controlled the company and misappropriating investor funds. Nova Oculus requested email communications from various individuals involved with the company. The SEC initially withheld the records under Exemption 7(A) (interference with ongoing investigation or proceeding), but after Nova Oculus agreed to narrow the scope of its request, the SEC produced 3,883 pages. The agency withheld records under Exemption 5, redacted personally identifying information under Exemptions 6 and 7(C), and withheld 672 pages entirely under the privacy exemptions, claiming that was the only way to protect the privacy of individuals involved in the law enforcement action. Nova Oculus argued that because Blair Mowery and Marshall Masko, who had been involved in the predecessor company to Nova Oculus, had been publicly identified as part of the investigation their privacy rights were diminished. But Friedrich pointed out that "the fact that the individuals' identities have been disclosed does not destroy their privacy interests in the nature of their involvement in the SEC enforcement matter, as opposed to the mere fact of that involvement." She then explained that "if disclosure of the records sought could in fact reveal additional, not-yet-public information, the relevant privacy interests are more likely to outweigh the public interest. And that is precisely the case here. While Mowery and Masko no longer have any privacy interest in the fact of their involvement in the SEC enforcement matter against Nova Oculus, the identifying emails that have already been publicly disclosed do not reveal anything about the nature of their involvement in the matter. Therefore, they maintain substantial privacy interests in the content of the investigative files on that basis." Friedrich agreed with the agency that disclosure of the 672 withheld pages would violate the privacy of Mowery and Masko because their email addresses were the search terms. She indicated that "only by withholding the documents in full could the SEC protect Mowrey and Masko's 'privacy interest. . .in avoiding disclosure of the details of [their involvement in] the [SEC's] investigation.'" Friedrich approved the agency's privilege claims, rejecting Nova Oculus's argument that the government misconduct exception applied. Instead, she observed that "assuming the government misconduct exception does apply in the FOIA context, the exception does not apply in this case [because] the plaintiffs have offered no 'reason to believe the documents sought may shed light on government misconduct.'"
Issues: Exemption 7(C) - Invasion of privacy concerning law enforcement records

Date Filed	Doc #	Docket Text
2019-03-08	1	COMPLAINT against UNITED STATES SECURITIES AND EXCHANGE COMMISSION ( Filing fee $ 400 receipt number 0090-5991383) filed by NOVA OCULUS PARTNERS, LLC, f/k/a THE EYE MACHINE, LLC, AMC HOLDINGS CO., LLC, LANTSON E. ELDRED, PETER POCKLINGTON. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit)(Himes, Lisa) (Attachment 1 replaced on 3/11/2019) (zef, ). (Entered: 03/08/2019)
2019-03-11		Case Assigned to Judge Dabney L. Friedrich. (zef, ) (Entered: 03/11/2019)
2019-03-11	2	SUMMONS (3) Issued Electronically as to UNITED STATES SECURITIES AND EXCHANGE COMMISSION, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Notice and Consent)(zef, ) (Entered: 03/11/2019)
2019-03-15	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/14/2019. Answer due for ALL FEDERAL DEFENDANTS by 4/13/2019. (Himes, Lisa) (Entered: 03/15/2019)
2019-03-15	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 3/14/2019. (Himes, Lisa) (Entered: 03/15/2019)
2019-03-15	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES SECURITIES AND EXCHANGE COMMISSION served on 3/14/2019 (Himes, Lisa) (Entered: 03/15/2019)
2019-04-12	6	NOTICE of Appearance by Melinda Hardy on behalf of UNITED STATES SECURITIES AND EXCHANGE COMMISSION (Hardy, Melinda) (Entered: 04/12/2019)
2019-04-12	7	ANSWER to Complaint by UNITED STATES SECURITIES AND EXCHANGE COMMISSION.(Hardy, Melinda) (Entered: 04/12/2019)
2019-04-15		MINUTE ORDER requiring the parties to MEET AND CONFER and file a joint status report proposing a schedule for further proceedings. The status report should address the status of the plaintiff's FOIA request, including the anticipated number of documents responsive to the request and the anticipated date(s) for release of the requested documents. The parties shall file the joint status report on or before April 26, 2019. Signed by Judge Dabney L. Friedrich on April 15, 2019. (lcdlf3) (Entered: 04/15/2019)
2019-04-15		Set/Reset Deadlines/Hearings: Joint Status Report due by 4/26/2019. (zcdw) (Entered: 04/16/2019)
2019-04-26	8	NOTICE of Appearance by Carin Marie Cozza on behalf of All Defendants (Cozza, Carin) (Entered: 04/26/2019)
2019-04-26	9	Joint STATUS REPORT and Proposed Order by AMC HOLDINGS CO., LLC, LANTSON E. ELDRED, NOVA OCULUS PARTNERS, LLC, PETER POCKLINGTON. (Attachments: # 1 Text of Proposed Order)(Himes, Lisa) (Entered: 04/26/2019)
2019-04-29		MINUTE ORDER. In light of the parties' 9 Joint Status Report, it is ORDERED that the SEC shall produce all non-exempt, responsive documents in rolling productions on or before May 29, 2019, July 1, 2019, and July 31, 2019. The productions shall follow the order of production set forth in the parties joint report. On or before August 15, 2019, the parties shall file a joint status report that proposes a schedule for further proceedings, including a summary judgment briefing, if necessary. Signed by Judge Dabney L. Friedrich on April 29, 2019. (lcdlf3) (Entered: 04/29/2019)
2019-04-29		Set/Reset Deadlines: Joint Status Report due by 8/15/2019. (mac) (Entered: 04/29/2019)
2019-05-08	10	LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by AMC Holdings Co., LLC and by NOVA OCULUS PARTNERS, LLC (Himes, Lisa) (Entered: 05/08/2019)
2019-07-24	11	Joint STATUS REPORT by AMC HOLDINGS CO., LLC, LANTSON E. ELDRED, NOVA OCULUS PARTNERS, LLC, PETER POCKLINGTON. (Attachments: # 1 Text of Proposed Order)(Himes, Lisa) (Entered: 07/24/2019)
2019-07-25		MINUTE ORDER. In light of the parties' 11 Joint Status Report, the Court adopts the parties' jointly proposed briefing schedule. The defendant shall file its motion for summary judgment on or before September 13, 2019; the plaintiff shall file its opposition and any cross-motion for summary judgment on or before October 4, 2019; the defendant shall file any reply and cross-opposition on or before October 25, 2019; and the plaintiff shall file any reply on or before November 6, 2019. Signed by Judge Dabney L. Friedrich on July 25, 2019. (lcdlf3) (Entered: 07/25/2019)
2019-07-25		Set/Reset Deadlines: Summary Judgment motion due by 9/13/2019. Response to Motion for Summary Judgment and Cross Motion due by 10/4/2019. Reply to Motion for Summary Judgment and Response to Cross Motion due by 10/25/2019. Reply to Cross Motion due by 11/6/2019. (kh) (Entered: 07/25/2019)
2019-09-13	12	MOTION for Summary Judgment by UNITED STATES SECURITIES AND EXCHANGE COMMISSION (Cozza, Carin) (Entered: 09/13/2019)
2019-09-13	13	MEMORANDUM re 12 MOTION for Summary Judgment filed by UNITED STATES SECURITIES AND EXCHANGE COMMISSION by UNITED STATES SECURITIES AND EXCHANGE COMMISSION. (Attachments: # 1 Statement of Facts, # 2 Declaration Declaration of Carin Cozza, # 3 Exhibit Exhibit A to Declaration-Vaughn Index, # 4 Exhibit Exhibit B to Declaration-Formal Order)(Cozza, Carin) (Entered: 09/13/2019)
2019-10-04	14	Cross MOTION for Summary Judgment by AMC HOLDINGS CO., LLC, LANTSON E. ELDRED, NOVA OCULUS PARTNERS, LLC, PETER POCKLINGTON (Attachments: # 1 Declaration of Becky James, # 2 Declaration of Walter O'Rourke, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Text of Proposed Order)(jf) (Entered: 10/07/2019)
2019-10-04	15	Memorandum in opposition to re 12 MOTION for Summary Judgment filed by AMC HOLDINGS CO., LLC, LANTSON E. ELDRED, NOVA OCULUS PARTNERS, LLC, PETER POCKLINGTON. (See Docket Entry 14 to view documents) (jf) (Entered: 10/07/2019)
2019-10-25	16	REPLY to 12 MOTION for Summary Judgment filed by UNITED STATES SECURITIES AND EXCHANGE COMMISSION. (Attachments: # 1 Statement of Facts Counter Statement of Facts)(Hardy, Melinda) Modified text on 10/28/2019 (ztth). (Entered: 10/25/2019)
2019-10-25	17	Memorandum in opposition to re 14 MOTION for Summary Judgment filed by UNITED STATES SECURITIES AND EXCHANGE COMMISSION. (See Docket Entry 16 to view document) (ztth) (Entered: 10/28/2019)
2019-11-06	18	REPLY to opposition to motion re 14 MOTION for Summary Judgment filed by AMC HOLDINGS CO., LLC, LANTSON E. ELDRED, NOVA OCULUS PARTNERS, LLC, PETER POCKLINGTON. (Himes, Lisa) (Entered: 11/06/2019)
2020-08-28	19	ORDER granting the defendant's 12 Motion for Summary Judgment; denying the plaintiffs' 14 Motion for Summary Judgment. See text for details. The Clerk of Court is directed to close this case. Signed by Judge Dabney L. Friedrich on August 28, 2020. (lcdlf2) (Entered: 08/28/2020)
2020-08-28	20	MEMORANDUM OPINION regarding the defendant's 12 Motion for Summary Judgment and the plaintiffs' 14 Cross-Motion for Summary Judgment. See text for details. Signed by Judge Dabney L. Friedrich on August 28, 2020. (lcdlf2) (Entered: 08/28/2020)
2021-04-23	21	MANDATE of USCA as to (61 in 1:19-cv-00179-DLF) Notice of Appeal to DC Circuit Court, filed by MILITARY ORDER OF THE PURPLE HEART OF THE UNITED STATES OF AMERICA, INC. ; USCA Case Number 19-7167. (Attachment: # 1 Judgement)(eg) (Entered: 04/26/2021)
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