Case Detail

FOIA Project Annotation: Judge Ellen Segal Huvelle has ruled that certain records pertaining to Elena Kagan's consideration of the pending healthcare legislation while she was Solicitor General are either not agency records or are protected under Exemption 5 (privileges). Both Media Research Center and Judicial Watch made parallel requests for the Kagan records and after some records were withheld or redacted, both organizations filed suit. The two cases were subsequently consolidated. The Solicitor General's Office initially found 1,400 pages, but determined that only 115 pages were responsive. Of these, DOJ decided only 86 were agency records covered by FOIA. DOJ contended that records created or received by Kagan in her capacity as a Supreme Court nominee were not agency records since they were not used by the agency. Relying on Gallant v. NLRB, 26 F.3d 168 (D.C. Cir. 1994), Huvelle noted that "the records here were stored with the agency and agency personnel were nominally involved. However, S.G. Kagan's correspondence was not relied upon by the OSG in carrying out its business, but rather was used for a purely personal objective, which proved dispositive in Gallant. As such, the relevant factors compel the conclusion that the withheld documents were personal, not attributable to the agency, and therefore not 'agency records.'" Judicial Watch argued that records claimed under the attorney work-product privilege were not covered because no specific litigation could have been contemplated because the healthcare legislation had not even been passed. But Huvelle pointed out that "JW's argument fails as a matter of law. A specific claim is not in fact essential for an agency to properly invoke the attorney work-product privilege. Rather, when government attorneys act as 'legal advisors' to an agency considering litigation that may arise from challenge to a government program, a specific claim is not required to justify the assertion of this privilege." She added that "in this case, DOJ has explainedâ€"and the unredacted material makes clearâ€"that the emails, including the redacted material, discussed legal defense of the forthcoming health care legislation in response to an anticipated court challenge. This is precisely the type of communication that is protected by the attorney work-product privilege."
Issues: Agency Record, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2010-11-23	1	COMPLAINT against SOLICITOR GENERAL OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE ( Filing fee $ 350, receipt number 4616034421) filed by MEDIA RESEARCH CENTER. (Attachments: # 1 Civil Cover Sheet)(rdj) (Entered: 11/30/2010)
2010-11-23		SUMMONS (2) Issued as to SOLICITOR GENERAL OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (rdj) (Entered: 11/30/2010)
2010-11-23	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by MEDIA RESEARCH CENTER identifying Corporate Parent NONE for MEDIA RESEARCH CENTER. (rdj) (Entered: 11/30/2010)
2010-12-07	3	ENTERED IN ERROR.....RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed in a FOIA Case as to the U.S. Attorney for DC; All Defendants for U.S. Attorney. (Craig, Christopher) Modified on 12/8/2010 (jf, ). (Entered: 12/07/2010)
2010-12-07	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 12/01/2010. (Craig, Christopher) (Entered: 12/07/2010)
2010-12-08		NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 3 Summons Returned Executed in FOIA as to U.S. Attorney for DC was entered in error and counsel was instructed to refile with corrected document as to US Attorney. (jf, ) (Entered: 12/08/2010)
2010-12-30	5	ANSWER to 1 Complaint by SOLICITOR GENERAL OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE.(Straus, Julie) (Entered: 12/30/2010)
2011-01-14	6	Joint MEET AND CONFER REPORT by SOLICITOR GENERAL OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order Plaintiff's and Defendants' Proposed Orders on Scheduling)(Straus, Julie) Modified on 1/18/2011 to enhance docket text (jf, ). (Entered: 01/14/2011)
2011-01-14	7	MINUTE ORDER re 6 Joint Report on Scheduling filed by the parties: upon consideration of the parties' proposed scheduling orders, it is hereby ORDERED that Defendants' Motion for Summary Judgment is due by March 1, 2011; Plaintiff's Opposition to Defendants' Motion for Summary Judgment or Plaintiff's Combined Opposition to Defendants' Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment is due by April 1, 2011; Defendants' Reply or Defendants' Combined Reply and Opposition to Plaintiff's Cross-Motion for Summary Judgment is due by May 2, 2011; and Plaintiff's Reply (if necessary) is due by June 1, 2011. Signed by Judge Ellen S. Huvelle on January 14, 2011. (AG, ) Modified on 1/14/2011 to enhance the docket (jf, ). (Entered: 01/14/2011)
2011-01-18		Set/Reset Deadlines: Defendants' Summary Judgment Motion due by 3/1/2011, Plaintiff's Response to Motion for Summary Judgment, and/or Cross Motion for Summary Judgment due by 4/1/2011. Reply to Motion for Summary Judgment or Combined Reply and Opposition to Cross-Motion due by 5/2/2011, Reply to Cross Motion, if needed, due by 6/1/2011. (jth) (Entered: 01/18/2011)
2011-02-23	8	MOTION for Extension of Time to File Defendants' Motion for Summary Judgment by SOLICITOR GENERAL OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order Proposed Order)(Straus, Julie) (Entered: 02/23/2011)
2011-02-24		MINUTE ORDER re 8 MOTION for Extension of Time to File Defendants' Motion for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE, SOLICITOR GENERAL OF THE UNITED STATES: it is hereby ORDERED that plaintiff's opposition, if any, shall be filed no later that 4:30 p.m. on Friday, February 25, 2011. Signed by Judge Ellen S. Huvelle on February 24, 2011. (AG) (Entered: 02/24/2011)
2011-02-25	9	Memorandum in opposition to re 8 MOTION for Extension of Time to File Defendants' Motion for Summary Judgment filed by MEDIA RESEARCH CENTER. (Craig, Christopher) (Entered: 02/25/2011)
2011-02-25		MINUTE ORDER granting 8 defendant's Motion for Extension of Time: upon consideration of defendant's motion, plaintiff's opposition thereto, and finding that the government has shown good cause for the continuance, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that briefing will proceed according to the following schedule: Defendants' Motion for Summary Judgment is due by March 15, 2011; Plaintiff's Opposition to Defendants' Motion for Summary Judgment or Plaintiff's Combined Opposition to Defendants' Motion for Summary Judgment and Plaintiff's Cross-Motion for SummaryJudgment is due by April 15, 2011; Defendants' Reply or Defendants' Combined Reply and Opposition to Plaintiff's Cross-Motion for Summary Judgment is due by May 16, 2011; and Plaintiff's Reply (if necessary) is due by June 15, 2011. Signed by Judge Ellen S. Huvelle on February 25, 2011. (AG) (Entered: 02/25/2011)
2011-03-15	10	MOTION for Summary Judgment by SOLICITOR GENERAL OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Statement of Facts Statement of Material Facts as to which There is No Genuine Issue, # 2 Memorandum in Support Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment, # 3 Declaration Declaration of Valerie H. Hall and Exhibits Thereto, # 4 Text of Proposed Order Proposed Order)(Straus, Julie) (Entered: 03/15/2011)
2011-03-21	11	NOTICE of Appearance by John Russell Tyler on behalf of All Defendants (Tyler, John) (Entered: 03/21/2011)
2011-04-06	12	MOTION to Consolidate Cases by SOLICITOR GENERAL OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support)(Straus, Julie) (Entered: 04/06/2011)
2011-04-15	13	Memorandum in opposition to re 10 MOTION for Summary Judgment filed by MEDIA RESEARCH CENTER. (Attachments: # 1 Exhibit Letter to Julie Straus)(Sparks, Robert) (Entered: 04/15/2011)
2011-04-19	14	Memorandum in opposition to re 12 MOTION to Consolidate Cases filed by MEDIA RESEARCH CENTER. (Sparks, Robert) (Entered: 04/19/2011)
2011-04-21	15	ORDER granting in part 12 Motion to Consolidate Cases. Case No. 11-cv-0426 (ABJ) will be transferred to the undersigned for the purpose of resolving the legal issues common to both cases. The parties shall confer and submit a joint proposed briefing schedule for the legal issues and/or documents common to both cases by April 29, 2011. Signed by Judge Ellen S. Huvelle on April 21, 2011. (lcesh2) (Entered: 04/21/2011)
2011-04-26		Set/Reset Deadlines: Joint proposed briefing schedule due by 4/29/2011. (gdf) (Entered: 04/26/2011)
2011-04-29	16	STATUS REPORT Joint Report on Scheduling by SOLICITOR GENERAL OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order Proposed Orders)(Straus, Julie) (Entered: 04/29/2011)
2011-04-29		MINUTE ORDER re 16 Joint Status Report and Proposed Briefing Schedule: upon consideration of the parties' Joint Report on Scheduling, it is hereby ORDERED that briefing will proceed according to the following schedule: Plaintiff Judicial Watch, Inc.'s Opposition to Defendants' Motion for Summary Judgment is due by May 20, 2011; it is further ORDERED that Defendants' Reply in Support ofDefendants' Motion for Summary Judgment is due by June 16, 2011; and it is further ORDERED that defendants and plaintiff Judicial Watch, Inc., will file a joint report on scheduling no later than June 1, 2011. Signed by Judge Ellen S. Huvelle on April 29, 2011. (AG) (Entered: 04/29/2011)
2011-05-03		Set/Reset Deadlines: Response to Motion for Summary Judgment due by 5/20/2011. Reply to Motion for Summary Judgment due by 6/16/2011. Joint report on scheduling due by 6/1/11. (gdf) (Entered: 05/03/2011)
2011-05-20	17	Memorandum in opposition to re 10 MOTION for Summary Judgment by Plaintiff Judicial Watch filed by MEDIA RESEARCH CENTER. (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Aldrich, Jason) (Entered: 05/20/2011)
2011-06-01	18	JOINT STATUS REPORT by MEDIA RESEARCH CENTER, SOLICITOR GENERAL OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(jf, ) (Entered: 06/02/2011)
2011-06-03		MINUTE ORDER re 18 Joint Status Report: Upon consideration of the parties' Joint Report on Scheduling, it is hereby ORDERED that defendant and plaintiff Judicial Watch, Inc., will file a joint report on scheduling no later than July 1, 2011. Signed by Judge Ellen S. Huvelle on June 3, 2011. (AG) (Entered: 06/03/2011)
2011-06-08		Set/Reset Deadlines: Joint report on scheduling due by 7/1/2011. (gdf) (Entered: 06/08/2011)
2011-06-16	19	REPLY to opposition to motion re 10 MOTION for Summary Judgment filed by SOLICITOR GENERAL OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE. (Straus, Julie) (Entered: 06/16/2011)
2011-07-01	20	MEET AND CONFER STATEMENT. (Aldrich, Jason) (Entered: 07/01/2011)
2011-09-14	21	NOTICE OF SUBSTITUTION OF COUNSEL by Caroline Lewis Wolverton on behalf of All Defendants Substituting for attorney Julie Straus (Wolverton, Caroline) (Entered: 09/14/2011)
2011-10-13	22	MEMORANDUM AND OPINION re 10 defendants' Motion for Summary Judgment. Signed by Judge Ellen S. Huvelle on October 13, 2011. (lcesh2) (Entered: 10/13/2011)
2011-10-13	23	ORDER granting 10 defendants' Motion for Summary Judgment for the reasons stated in 22 Memorandum & Opinion. Signed by Judge Ellen S. Huvelle on October 13, 2011. (lcesh2) (Entered: 10/13/2011)
Hide Docket Events