Case Detail

FOIA Project Annotation: A federal court in New Jersey has ruled that several agencies properly responded to FOIA requests submitted by Dr. Monib Zirvi who was seeking information about the government allowing Illumina, a biotechnology company, to improperly maintain its monopoly power. Zirvi requested records from the National Cancer Institute, the National Human Genome Research Institute, the U.S. Patent and Trademark Office, and the National Institute of Standards and Technology. From NCI, Zirvi requested certain Illumina grant applications and progress reports. NCI produced 187 pages of responsive records, redacting 53 pages in part and seven pages in full under Exemption 4 (commercial and confidential). NCI consulted Illumina on the issue of whether the records were confidential. Illumina agreed that it treated most of the withheld information as confidential. From NHGRI, Zirvi asked for Illumina grant applications submitted to NHGRI. NHGRI provided two redacted records under Exemption 4. From USPTO, Zirvi asked for the settlement agreement between Cornell University, Thermo Fisher Scientific, and Illumina, that was considered confidential. USPTO withheld the settlement agreement under Exemption 4 and Exemption 5 (privileges). Zirvi appealed the denial, which was upheld by the agency under Exemption 4. From NIST, Zirvi asked for a 1994 grant application, awarded to the predecessors of Themo Fisher Scientific and Illumina. NIST withheld the application under Exemption 3 (other statues), but after Zirvi appealed the denial, the agency upheld the denial under Exemption 4. Zirvi then filed suit against all four agencies. Illumina intervened to support the agencies' positions. However, the agencies agreed to disclose more information during discovery. Zirvi agreed to limit the dispute to four documents â€" one each from the four agencies. The court concluded that each agency had properly invoked Exemption 4 as the basis for withholding records. The court indicated that NCI had "properly invoked Exemption 4 regarding the NCI FOIA request because the disputed information was commercial in nature, obtained from a person, and confidential." The court added that "additionally, Illumina argues that plaintiff's claims against NCI are defective because Plaintiff failed to exhaust his administrative remedies." In response, Zirvi argued that he did not appeal NCI's decision to classify him as a commercial-use requester because NCI did not inform him that he could appeal the denial. The court disagreed, noting that under FOIA, the agency was required to notify the requester of their right to appeal to the head of the agency and their right to appeal to the Office of Government Information Services. "Here, the NCI's final response letter met each of these criteria. Thus, Plaintiff's failure to appeal the NCI FOIA response prior to filing this case in federal court warrants summary judgment in favor of Defendants." Approving the withholding claims of NIST for its settlement agreement, the court observed that "the companies provided the information to NIST under an express promise of confidentiality." The court added that "however, NIST and [the company] assert that the specific data at issue here has not been made public."
Issues: Exemption 4 - Confidential business information

Date Filed	Doc #	Docket Text
2020-06-23	1	COMPLAINT against UNITED STATES NATIONAL INSTITUTE OF HEALTH, UNITED STATES NATIONAL INSTITUTES OF STANDARDS AND TECHNOLOGY, UNITED STATES PATENT AND TRADEMARK OFFICE ( Filing and Admin fee $ 400 receipt number ANJDC-10977960), filed by MONIB ZIRVI. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10, # 11 Exhibit Exhibit 11, # 12 Exhibit Exhibit 12, # 13 Exhibit Exhibit 13, # 14 Exhibit Exhibit 14, # 15 Exhibit Exhibit 15, # 16 Exhibit Exhibit 16, # 17 Exhibit Exhibit 17, # 18 Exhibit Exhibit 18, # 19 Exhibit Exhibit 19, # 20 Exhibit Exhibit 20, # 21 Exhibit Exhibit 21, # 22 Exhibit Exhibit 22, # 23 Exhibit Exhibit 23, # 24 Exhibit Exhibit 24, # 25 Civil Cover Sheet)(SPIRO, JASON) (Entered: 06/23/2020)
2020-06-23		CLERK'S QUALITY CONTROL MESSAGE - The case you electronically filed has been processed, however, the following deficiencies were found: Party Information is to be entered in CAPITAL LETTERS . It was selected that this case has been filed AGAINST the Plaintiff . The Clerk's Office has made the appropriate changes. Please refer to the Attorney Case Opening Guide for processing electronically filed cases. (jjc, ) (Entered: 06/23/2020)
2020-06-23		Judge Michael A. Shipp and Magistrate Judge Douglas E. Arpert added. (mg) (Entered: 06/23/2020)
2020-06-23	2	NOTICE of Appearance by THOMAS MICHAEL KENNY on behalf of Monib Zirvi (KENNY, THOMAS) (Entered: 06/23/2020)
2020-06-23	3	SUMMONS ISSUED as to UNITED STATES NATIONAL INSTITUTE OF HEALTH, UNITED STATES NATIONAL INSTITUTES OF STANDARDS AND TECHNOLOGY, UNITED STATES PATENT AND TRADEMARK OFFICE. Attached is the official court Summons, please fill out Defendant and Plaintiffs attorney information and serve. (mg) (Entered: 06/23/2020)
2020-07-02	4	MOTION for Leave to Appear Pro Hac Vice Timothy M. Kolman by MONIB ZIRVI. (Attachments: # 1 Declaration of Jason C. Spiro, # 2 Declaration of Timothy M. Kolman, # 3 Text of Proposed Order to Admit Timothy M. Kolman Pro Hac Vice)(SPIRO, JASON) (Entered: 07/02/2020)
2020-07-02		Set Deadlines as to 4 MOTION for Leave to Appear Pro Hac Vice Timothy M. Kolman . Motion set for 8/3/2020 before Magistrate Judge Douglas E. Arpert. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (jem) (Entered: 07/02/2020)
2020-07-22	5	AMENDED DOCUMENT by MONIB ZIRVI. Amendment to 4 MOTION for Leave to Appear Pro Hac Vice Timothy M. Kolman Revised Declaration of Timothy M. Kolman . (SPIRO, JASON) (Entered: 07/22/2020)
2020-07-23	6	Application and Proposed Order for Clerk's Order to extend time to answer as to Defendants NIH, NIST, and USPTO. Attorney KRISTIN LYNN VASSALLO for UNITED STATES NATIONAL INSTITUTE OF HEALTH,KRISTIN LYNN VASSALLO for UNITED STATES NATIONAL INSTITUTES OF STANDARDS AND TECHNOLOGY,KRISTIN LYNN VASSALLO for UNITED STATES PATENT AND TRADEMARK OFFICE added. (Attachments: # 1 Certificate of Service)(VASSALLO, KRISTIN) (Entered: 07/23/2020)
2020-07-23	7	ORDER granting 4 Motion for Leave to Appear Pro Hac Vice as to Timothy Kolman. Signed by Magistrate Judge Douglas E. Arpert on 7/23/2020. (jmh) (Entered: 07/23/2020)
2020-07-23		Clerk`s Text Order - The document 6 Application for Clerk's Order to Ext Answer/Proposed Order, submitted by UNITED STATES PATENT AND TRADEMARK OFFICE, UNITED STATES NATIONAL INSTITUTES OF STANDARDS AND TECHNOLOGY, UNITED STATES NATIONAL INSTITUTE OF HEALTH has been GRANTED. The answer due date has been set for 8/10/2020. (jem) (Entered: 07/23/2020)
2020-08-07	8	NOTICE of Appearance by PETER GREGORY VIZCARRONDO on behalf of UNITED STATES NATIONAL INSTITUTE OF HEALTH, UNITED STATES NATIONAL INSTITUTES OF STANDARDS AND TECHNOLOGY, UNITED STATES PATENT AND TRADEMARK OFFICE (VIZCARRONDO, PETER) (Entered: 08/07/2020)
2020-08-07	9	Letter from Defendants Requesting an Extension of Time Until August 24, 2020 to Respond to the Complaint. (Attachments: # 1 Text of Proposed Order)(VIZCARRONDO, PETER) (Entered: 08/07/2020)
2020-08-10	10	ORDER granting Defendants' 9 application for an extension of time to answer or otherwise respond to the Complaint. Defendants shall file their response to the Complaint 1 by 8/24/2020. Signed by Magistrate Judge Douglas E. Arpert on 8/10/2020. (jem) (Entered: 08/10/2020)
2020-08-24	11	ANSWER to Complaint and Separate Defenses by All Defendants. (Attachments: # 1 Certificate of Service)(VIZCARRONDO, PETER) (Entered: 08/24/2020)
2020-09-01	12	MOTION to Intervene by ILLUMINA, INC.. (Attachments: # 1 Declaration, # 2 Appendix Proposed Answer, # 3 Text of Proposed Order)(HANEY, ROBERT) (Entered: 09/01/2020)
2020-09-01	13	Corporate Disclosure Statement by ILLUMINA, INC.. (HANEY, ROBERT) (Entered: 09/01/2020)
2020-09-01		Set Deadlines as to 12 MOTION to Intervene . Motion set for 10/5/2020 before Magistrate Judge Douglas E. Arpert. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (jem) (Entered: 09/01/2020)
2020-09-11	14	Ordered Initial Conference set for 10/6/2020 at 2:30 PM via telephone before Magistrate Judge Douglas E. Arpert. Plaintiff is to set up and initiate the call to chambers (609-989-2144). Attention Counsel: The Joint Discovery Plan is due (7) days prior to the conference. Please email the Joint Discovery Plan to dea_orders@njd.uscourts.gov. (Attachment: JDP Instructions) Signed by Magistrate Judge Douglas E. Arpert on 9/11/2020. (eh, ) (Entered: 09/11/2020)
2020-09-22	15	NOTICE of Appearance by ERIC H. JASO on behalf of MONIB ZIRVI (JASO, ERIC) (Entered: 09/22/2020)
2020-09-29	16	MOTION for Leave to Appear Pro Hac Vice for Kevin Barnett by ILLUMINA, INC.. (Attachments: # 1 Declaration of Kevin T. Barnett, # 2 Declaration of Robert P. Haney, Jr., # 3 Text of Proposed Order)(HANEY, ROBERT) (Entered: 09/29/2020)
2020-09-29		Set Deadlines as to 16 MOTION for Leave to Appear Pro Hac Vice for Kevin Barnett . Motion set for 11/2/2020 before Magistrate Judge Douglas E. Arpert. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (jem) (Entered: 09/29/2020)
2020-10-06		TEXT Minute Entry for proceedings held before Magistrate Judge Douglas E. Arpert: Initial Pretrial Conference held on 10/6/2020, via telephone. (eh, ) (Entered: 10/07/2020)
2020-10-08	17	TEXT ORDER: The parties are to submit a joint status report by 10/13/2020. So Ordered by Magistrate Judge Douglas E. Arpert on 10/8/2020. (eh, ) (Entered: 10/08/2020)
2020-10-13	18	Letter from the Agency Defendants, on behalf of all parties, respectfully enclosing a proposed motion schedule. (VASSALLO, KRISTIN) (Entered: 10/13/2020)
2020-10-14	19	ORDER that the Agency Defendants and Intervenor Illumina will file motions for summary judgment/partial summary judgment by 12/11/2020; Plaintiff's opposition to these motions are due 1/20/2021; the Agency Defendants and Intervenor Illumina's rely briefs are due 2/05/2021. Telephone Status Conference set for 2/8/2021 at 11:00 AM before Magistrate Judge Douglas E. Arpert. Plaintiff's counsel is to initiate the call to 609-989-2144. Signed by Magistrate Judge Douglas E. Arpert on 10/14/2020. (jem) (Entered: 10/14/2020)
2020-10-15	20	ORDER granting 16 Motion for Leave to Appear Pro Hac Vice as to Kevin Barnett. Signed by Magistrate Judge Douglas E. Arpert on 10/15/2020. (abr) (Entered: 10/15/2020)
2020-10-15	21	ORDER that Illumina, Inc.'s unopposed 12 Motion to Intervene is granted. Signed by Magistrate Judge Douglas E. Arpert on 10/15/2020. (abr) (Entered: 10/15/2020)
2020-11-02	22	Notice of Request by Pro Hac Vice Kevin T. Barnett to receive Notices of Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number ANJDC-11595350.) (HANEY, ROBERT) (Entered: 11/02/2020)
2020-11-02		Pro Hac Vice counsel, KEVIN T. BARNETT, has been added to receive Notices of Electronic Filing. Pursuant to L.Civ.R. 101.1, only local counsel are entitled to sign and file papers, enter appearances and receive payments on judgments, decrees or orders. (jem) (Entered: 11/02/2020)
2020-11-24	23	Letter from the Agency Defendants, on behalf of all parties, respectfully seeking a one-week extension of the motion schedule. (VASSALLO, KRISTIN) (Entered: 11/24/2020)
2020-11-25	24	LETTER ORDER granting request for a one week extension of the Motion for Summary Judgment schedule. Signed by Magistrate Judge Douglas E. Arpert on 11/25/2020. (jmh) (Entered: 11/25/2020)
2020-12-07	25	NOTICE of Appearance by DAVID A. LUTTINGER on behalf of ILLUMINA, INC. (LUTTINGER, DAVID) (Entered: 12/07/2020)
2020-12-10	26	Letter from Agency Defendants seeking 30-day extension of motion schedule. (VIZCARRONDO, PETER) (Entered: 12/10/2020)
2020-12-14	27	LETTER ORDER granting the request that the Agency Defendants and Intervenor Illumina shall file motions for summary judgment/partial summary judgment by 1/18/2021; Plaintiff's oppositions due 2/26/2021; Reply briefs due 3/15/2021. Signed by Magistrate Judge Douglas E. Arpert on 12/14/2020. (jem) (Entered: 12/14/2020)
2021-01-11	28	Letter from the Agency Defendants, with the consent of all parties, respectfully requesting additional time to submit summary judgment motion. (VASSALLO, KRISTIN) (Entered: 01/11/2021)
2021-01-12	29	LETTER ORDER granting the request 28 for an additional two-week extension of the motion schedule in this case. Signed by Magistrate Judge Douglas E. Arpert on 1/12/2021. (jem) (Entered: 01/12/2021)
2021-01-20	30	Letter from the Agency Defendants, on behalf of all parties, setting out the redactions/withholdings that remain at issue in this case. (VASSALLO, KRISTIN) (Entered: 01/20/2021)
2021-02-01	31	MOTION for Summary Judgment by ILLUMINA, INC.. Responses due by 3/12/2021 (Attachments: # 1 Brief, # 2 Statement, # 3 Declaration of A McCourt, # 4 Declaration of J. Picuri, # 5 Declaration of K. Barnett, # 6 Declaration of P. Pannala, # 7 Text of Proposed Order)(LUTTINGER, DAVID) (Entered: 02/01/2021)
2021-02-01	32	MOTION for Summary Judgment by UNITED STATES NATIONAL INSTITUTE OF HEALTH, UNITED STATES NATIONAL INSTITUTES OF STANDARDS AND TECHNOLOGY, UNITED STATES PATENT AND TRADEMARK OFFICE. Responses due by 3/12/2021 (Attachments: # 1 Brief in Support of Defendants' Motion for Summary Judgment, # 2 Statement Rule 56.1 Statement, # 3 Declaration of Louis J. Boston Jr., # 4 Exhibit to Boston Declaration, # 5 Declaration of Allyson Deitrick, # 6 Exhibit to Deitrick Declaration, # 7 Declaration of Suzanne Milliard, # 8 Exhibit to Milliard Declaration, # 9 Declaration of Marianne Manheim, # 10 Exhibit 1-7 to Manheim Declaration, # 11 Declaration of Michael Shapero, # 12 Text of Proposed Order)(VIZCARRONDO, PETER) (Entered: 02/01/2021)
2021-02-01	33	Exhibit to 32 Motion for Summary Judgment,, Exhibit 8 to Manheim Declaration by UNITED STATES NATIONAL INSTITUTE OF HEALTH, UNITED STATES NATIONAL INSTITUTES OF STANDARDS AND TECHNOLOGY, UNITED STATES PATENT AND TRADEMARK OFFICE. (VIZCARRONDO, PETER) (Entered: 02/01/2021)
2021-02-02		Set Deadlines as to 32 MOTION for Summary Judgment , 31 MOTION for Summary Judgment . Motions set for 3/1/2021 before Judge Michael A. Shipp. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (jem) (Entered: 02/02/2021)
2021-02-05	34	ORDER that the Telephone Status Conference presently scheduled for 2/08/2021 is adjourned and rescheduled to 4/12/2021 at 2:30 PM before Magistrate Judge Douglas E. Arpert. Signed by Magistrate Judge Douglas E. Arpert on 2/05/2021. (jem) (Entered: 02/05/2021)
2021-03-03	35	Letter from Plaintiff to Request an Increase of the Page Limit in its Summary Judgment Opposition Brief. (KENNY, THOMAS) (Entered: 03/03/2021)
2021-03-04	36	LETTER ORDER granting Plaintiff's request to increase the page limit for Plaintiff's opposition brief to 50 pages from the 40-page limit. Signed by Judge Michael A. Shipp on 03/04/2021. (jdb) (Entered: 03/04/2021)
2021-03-11	37	Cross MOTION for Summary Judgment or, in the Alternative, to Authorize Plaintiff to Conduct Limited Discovery by All Plaintiffs. Responses due by 3/29/2021 (Attachments: # 1 Brief in Opposition to Motions for Summary Judgment and in Support of Cross-Motion, # 2 Statement of Material Facts in Support of Cross-Motion for Summary Judgment, # 3 Statement Response to Defendants' and Defendant-Intervenor's Statement of Material Facts, # 4 Declaration of Eric H. Jaso, # 5 Exhibit A to Jaso Declaration, # 6 Exhibit B to Jaso Declaration, # 7 Exhibit C to Jaso Declaration, # 8 Exhibit D to Jaso Declaration, # 9 Exhibit E to Jaso Declaration, # 10 Exhibit F to Jaso Declaration, # 11 Exhibit G to Jaso Declaration, # 12 Exhibit H to Jaso Declaration, # 13 Exhibit I to Jaso Declaration, # 14 Exhibit J to Jaso Declaration, # 15 Text of Proposed Order, # 16 Certificate of Service)(JASO, ERIC) (Entered: 03/11/2021)
2021-03-12		Set Deadlines as to 37 Cross MOTION for Summary Judgment or, in the Alternative, to Authorize Plaintiff to Conduct Limited Discovery . Motion set for 4/5/2021 before Judge Michael A. Shipp. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (jem) (Entered: 03/12/2021)
2021-03-29	38	REPLY BRIEF to Opposition to Motion filed by ILLUMINA, INC. re 37 Cross MOTION for Summary Judgment or, in the Alternative, to Authorize Plaintiff to Conduct Limited Discovery , 31 MOTION for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment (Attachments: # 1 Statement Response to Plaintiff's Statement of Facts)(LUTTINGER, DAVID) (Entered: 03/29/2021)
2021-03-29	39	MEMORANDUM in Opposition filed by UNITED STATES NATIONAL INSTITUTE OF HEALTH, UNITED STATES NATIONAL INSTITUTES OF STANDARDS AND TECHNOLOGY, UNITED STATES PATENT AND TRADEMARK OFFICE re 37 Cross MOTION for Summary Judgment or, in the Alternative, to Authorize Plaintiff to Conduct Limited Discovery and in Further Support of Defendants' Motion for Summary Judgment (Attachments: # 1 Statement in response to Plaintiff's 56.1 Statement, # 2 Declaration of Gorka Garcia-Malene, # 3 Exhibit 1 to Garcia-Malene Declaration, # 4 Exhibit 2 to Garcia-Malene Declaration, # 5 Exhibit 3 to Garcia-Malene Declaration)(VIZCARRONDO, PETER) (Entered: 03/29/2021)
2021-04-09	40	TEXT ORDER: Cancelling the Telephone Status conference previously set for 4/12/21 has been cancelled by consent. So Ordered by Magistrate Judge Douglas E. Arpert on 4/9/2021. (eh, ) (Entered: 04/09/2021)
2021-04-23	41	MOTION to Withdraw as Attorney for Kevin Barnett , MOTION to Withdraw by ILLUMINA, INC.. (LUTTINGER, DAVID) (Entered: 04/23/2021)
2021-04-23		Set Deadlines as to 41 MOTION to Withdraw as Attorney for Kevin Barnett MOTION to Withdraw . Motion set for 5/17/2021 before Magistrate Judge Douglas E. Arpert. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (jem) (Entered: 04/23/2021)
2021-06-23	42	ORDER granting 41 Motion to Withdraw Pro Hac Vice admission of Kevin T. Barnett. Signed by Magistrate Judge Douglas E. Arpert on 6/23/2021. (jem) (Entered: 06/23/2021)
2021-06-24	43	Notice to be terminated and withdraw from Notices of Electronic filing as to case. Attorney ROBERT PATRICK HANEY, JR terminated. (LUTTINGER, DAVID) (Entered: 06/24/2021)
2021-06-25	44	TEXT ORDER REASSIGNING CASE. Case reassigned to Judge Zahid N. Quraishi for all further proceedings. Judge Michael A. Shipp no longer assigned to case. So Ordered by Chief Judge Freda L. Wolfson on 6/25/2021. (jem) (Entered: 06/25/2021)
2021-07-28	45	Third Party Litigation Funding disclosure statement pursuant to L.Civ.R 7.1.1(a)(1-3) filed by UNITED STATES NATIONAL INSTITUTE OF HEALTH, UNITED STATES NATIONAL INSTITUTES OF STANDARDS AND TECHNOLOGY, UNITED STATES PATENT AND TRADEMARK OFFICE. (VASSALLO, KRISTIN) (Entered: 07/28/2021)
2021-08-02	46	Third Party Litigation Funding disclosure statement pursuant to L.Civ.R 7.1.1(a)(1-3) filed by All Plaintiffs. (KENNY, THOMAS) (Entered: 08/02/2021)
2022-04-28	47	OPINION Filed. Signed by Judge Zahid N. Quraishi on 4/28/2022. (jal, ) (Entered: 04/28/2022)
2022-04-28	48	ORDER granting 31 Defendant Illumina, Inc.'s motion for Summary Judgement; Granting 32 motion for Summary Judgment filed by Defendants the United States Patent and Trademark Office, the National Institutes of Health, the National Cancer Institute, the National Institute of Standards and Technology, and the National Human Genome Research Institute; Denying 37 cross motion for Summary Judgement filed by Plaintiff Dr. Monib Zirvi; The Clerk shall close this case. Signed by Judge Zahid N. Quraishi on 4/28/2022. (jal, ) (Entered: 04/28/2022)
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