Case Detail

FOIA Project Annotation: A federal court in New York has ruled that the Justice Department properly withheld almost all of two memos written by the head of DOJ's Criminal Appellate Section concerning the government's ability to use GPS tracking in light of the Supreme Court's recent decision in United States v. Jones, 132 S. Ct 945 (2012) under Exemption 5 (attorney work-product privilege) and Exemption 7(E) (investigative methods and techniques). After the existence of the memos was made public at a conference, the ACLU requested the memos. DOJ redacted all but the introduction of the first memo and all but the introduction and brief summary of Jones in the second memo. After reviewing both memos in camera, Judge William Pauley agreed with the agency's redactions. The ACLU argued that in the criminal law enforcement context the work-product privilege applied only to documents created in response to a specific set of facts and actual claims and did not apply to an objective analysis of governing law. But, relying on the D.C. Circuit's decision in Delaney, Migdail & Young v. IRS, 826 F.2d 124 (D.C. Cir. 1987), Pauley noted that when a memo's function was to provide advice on how the government should respond to legal challenges, a specific-claim requirement was not needed to find that the attorney work-product privilege applied. Pointing out that "it is the function of the documents that is critical, not their intended audience," Pauley indicated that although "the memoranda were prepared for the benefit of prosecutors. . .they discuss not how prosecutors should interpret and apply the laws they are charged with enforcingâ€"the criminal codeâ€"but how to defend the Government against accusations of unlawful searches or seizures." Pauley rejected the ACLU's contention that the memos constituted the working law of the agency. Instead, he observed that "DOJ's interpretation of the Supreme Court's decision in Jones has no legal effect; the results of the DOJ's arguments will be borne out in the courts." Turning to Exemption 7(E), Pauley explained that the first memo "does not fall within Exemption 7(E) because its topic is limited to GPS tracking and it does not reveal any investigative techniques not generally know to the public." By contrast, Pauley pointed out that "the [second] memorandum contains detailed information concerning various investigative techniques not widely known and therefore falls within Exemption 7(E)." Noting that "in camera inspection is appropriate to determine whether portions of documents may be released while keeping exempt portions secret," Pauley indicated he was satisfied that DOJ had released all reasonably segregable portions of the memoranda.
Issues: Exemption 5 - Privileges - Attorney work-product privilege, Exemption 7(E) - Investigative methods or techniques

Date Filed	Doc #	Docket Text
2012-10-03	1	COMPLAINT against United States Department of Justice. (Filing Fee $ 350.00, Receipt Number 1050019)Document filed by American Civil Liberties Union Foundation.(mro) (Entered: 10/04/2012)
2012-10-03		SUMMONS ISSUED as to United States Department of Justice, U.S. Attorney and U.S. Attorney General. (mro) (Entered: 10/04/2012)
2012-10-03		CASE REFERRED TO Judge William H. Pauley as possibly similar to 1:12-cv-06244-WHP. (mro) (Entered: 10/04/2012)
2012-10-03		Case Designated ECF. (mro) (Entered: 10/04/2012)
2012-10-04	2	AFFIDAVIT OF SERVICE. United States Department of Justice served on 10/4/2012, answer due 10/25/2012. Service was made by Mail. Document filed by American Civil Liberties Union Foundation. (Wessler, Nathan) (Entered: 10/04/2012)
2012-10-16		CASE ACCEPTED AS SIMILAR. Create association to 1:12-cv-06244-WHP. Notice of Assignment to follow. (pgu) (Entered: 10/16/2012)
2012-10-16	3	NOTICE OF CASE ASSIGNMENT to Judge William H. Pauley, III. Judge Unassigned is no longer assigned to the case. (pgu) (Entered: 10/16/2012)
2012-10-16		Magistrate Judge James L. Cott is so designated. (pgu) (Entered: 10/16/2012)
2012-10-22	4	ORDER FOR INITIAL PRETRIAL CONFERENCE: Counsel are directed to appear in Courtroom 20B at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York on January 18, 2013 at 11 :00 a.m. for an initial pretrial conference with the Court for the purpose of discussing settlement, exploring contemplated motions, stipulating facts, narrowing issues, fixing a discovery schedule, and setting a date for trial. If you are proceeding pro se (without an attorney), you are required to appear personally at this conference. Counsel are further directed to confer with each other prior to the conference regarding all of the subjects to be considered pursuant to Rule 26(f) of the Federal Rules of Civil Procedure and to file a written report outlining their discovery plan pursuant to that Rule. The written report must be filed at least seven (7) days prior to the initial pretrial conference with the Court. The parties shall send courtesy copies of that report and all pleadings to the United States Courthouse, Chambers 2210,500 Pearl Street, New York, New York, 10007. You are directed to: (a) serve copies of this Order upon all attorneys in this action and any parties who have not appeared through counsel; and (b) retain proof of such service. If you are unaware of the identity of counsel for any of the parties, then send a copy of the notice tot hat party personally. (Signed by Judge William H. Pauley, III on 10/19/2012) (ago) Modified on 10/25/2012 (ago). (Entered: 10/22/2012)
2012-11-05	5	ANSWER to 1 Complaint. Document filed by United States Department of Justice.(Schoenberger, Carina) (Entered: 11/05/2012)
2013-02-04	6	ENDORSED LETTER addressed to Judge William H. Pauley, III from Carina H. Schoenberger dated 1/11/2013 re: We ask that the Court waive its pre-motion conference requirement, adjourn the initial pretrial conference, and so order the mutually agreed proposed briefing schedule set forth below for the parties' summary judgment motions. ENDORSEMENT: Application granted. The proposed schedule is adopted. This Court will hear oral argument on July 12, 2013 at 11:00 a.m. (Cross Motions due by 4/5/2013, Motions due by 2/22/2013, Responses due by 5/6/2013, Replies due by 6/5/2013, Surreplies due by 6/28/2013.) (Oral Argument set for 7/12/2013 at 11:00 AM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 2/4/2013) (ft) (Entered: 02/04/2013)
2013-02-19	7	ENDORSED LETTER addressed to Judge William H. Pauley, III from Carina H. Schoenberger dated 2/14/2013 re: This Office writes respectfully on behalf of the United States Department of Justice ("Government"), defendant in the above-referenced Freedom of Information Act matter, to request a one-week extension of time, from February 22, 2013, to March 1, 2013, in which to serve its motion for summary judgment. ENDORSEMENT: Application granted. So ordered. (Signed by Judge William H. Pauley, III on 2/19/2013). (rjm) (Entered: 02/19/2013)
2013-03-01	8	MOTION for Summary Judgment. Document filed by United States Department of Justice. Responses due by 4/5/2013(Schoenberger, Carina) (Entered: 03/01/2013)
2013-03-01	9	MEMORANDUM OF LAW in Support re: 8 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Schoenberger, Carina) (Entered: 03/01/2013)
2013-03-01	10	DECLARATION of John E. Cunningham III in Support re: 8 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, Part 1, # 5 Exhibit D, Part 2, # 6 Exhibit D, Part 3, # 7 Exhibit E, Part 1, # 8 Exhibit E, Part 2)(Schoenberger, Carina) (Entered: 03/01/2013)
2013-03-01	11	DECLARATION of David M. Hardy in Support re: 8 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Schoenberger, Carina) (Entered: 03/01/2013)
2013-03-01	12	DECLARATION of Andrew Weissmann in Support re: 8 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Schoenberger, Carina) (Entered: 03/01/2013)
2013-04-16	13	REVISED SCHEDULING ORDER: Upon consideration of Plaintiffs request for entry of a Revised Scheduling Order, the following schedule is entered on consent: 1. Plaintiff shall submit its cross-motion for summary judgment and opposition to Defendant's motion for summary judgment by April 19, 2013. 2. Defendant shall submit its opposition to Plaintiff's cross-motion for summary judgment and its reply to Plaintiff's opposition by May 20, 2013. 3. Plaintiff shall submit its reply to Defendant's opposition by June 19, 2013. 4. Defendant shall submit its sur-reply by July 12, 2013. 5. This Court will hold oral argument on July, 26, 2013, at 12:30 p.m. (Cross Motions due by 4/19/2013. Responses due by 5/20/2013. Replies due by 6/19/2013. Oral Argument set for 7/26/2013 at 12:30 PM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 4/16/2013). (rjm) (Entered: 04/16/2013)
2013-04-16		Set/Reset Deadlines: Surreplies due by 7/12/2013. (rjm) (Entered: 04/16/2013)
2013-04-19	14	CROSS MOTION for Summary Judgment. Document filed by American Civil Liberties Union Foundation. Responses due by 5/20/2013(Crump, Catherine) (Entered: 04/19/2013)
2013-04-19	15	MEMORANDUM OF LAW in Support re: 14 CROSS MOTION for Summary Judgment. and in Opposition to Defendant's Motion for Summary Judgment . Document filed by American Civil Liberties Union Foundation. (Crump, Catherine) (Entered: 04/19/2013)
2013-05-18	16	SECOND MEMORANDUM OF LAW in Support re: 8 MOTION for Summary Judgment. and in Opposition re: 15 Cross-Motion for Summary Judgment . Document filed by United States Department of Justice. (Schoenberger, Carina) (Entered: 05/18/2013)
2013-05-18	17	DECLARATION of John E. Cunningham III in Support re: 8 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Schoenberger, Carina) (Entered: 05/18/2013)
2013-06-19	18	REPLY MEMORANDUM OF LAW in Support re: 14 CROSS MOTION for Summary Judgment. and in Opposition to Defendant's Motion for Summary Judgment . Document filed by American Civil Liberties Union Foundation. (Crump, Catherine) (Entered: 06/19/2013)
2013-07-12	19	FINAL REPLY MEMORANDUM OF LAW in Support re: 8 MOTION for Summary Judgment. and in Opposition to Plaintiff's Cross-Motion for Summary Judgment . Document filed by United States Department of Justice. (Schoenberger, Carina) (Entered: 07/12/2013)
2013-07-18	20	ENDORSED LETTER addressed to Judge William H. Pauley, III from Catherine Crump dated 7/11/13 re: Counsel states that the ACLU would like to allow Mr. Hauss to conduct oral argument. The ACLU also requests that the Court reschedule the oral argument. ENDORSEMENT: Application granted. Oral argument is rescheduled to August 15, 2013 at 5:00 p.m. ( Oral Argument set for 8/15/2013 at 05:00 PM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 7/18/2013) (mro) (Entered: 07/18/2013)
2013-08-14	21	SCHEDULING ORDER: The oral argument scheduled for August 15, 2013 is rescheduled from 5:00 p.m. to 3:00 p.m. Oral Argument set for 8/15/2013 at 03:00 PM before Judge William H. Pauley III. (Signed by Judge William H. Pauley, III on 8/14/2013) (lmb) (Entered: 08/14/2013)
2013-09-20	22	TRANSCRIPT of Proceedings re: CONFERENCE held on 8/15/2013 before Judge William H. Pauley, III. Court Reporter/Transcriber: Thomas Murray, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/15/2013. Redacted Transcript Deadline set for 10/24/2013. Release of Transcript Restriction set for 12/23/2013.(Rodriguez, Somari) (Entered: 09/20/2013)
2013-09-20	23	NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 8/15/13 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 09/20/2013)
2013-10-01	24	STANDING ORDER M10-468: Stay of Certain Civil Cases Pending the Restoration of Department of Justice Funding. (Signed by Judge Loretta A. Preska on 10/1/2013) ***Original Standing Order docketed in case no. 1:13-mc-00334-LAP, document no. 2 on 10/1/2013.***(tro) (Entered: 10/01/2013)
2014-03-11	25	MEMORANDUM & ORDER granting 8 Motion for Summary Judgment; denying 14 Motion for Summary Judgment. For the foregoing reasons, the Government's motion for summary judgment is granted and the ACLU's motion for summary judgment is denied. The February and July memoranda are exempt from public disclosure under Exemption 5. The July memorandum is also exempt from disclosure under Exemption 7(E). The Government has disclosed all reasonably segregable portions of both memoranda. The Clerk of Court is directed to terminate all pending motions and mark this case closed. (Signed by Judge William H. Pauley, III on 3/11/2014) (lmb) (Entered: 03/11/2014)
2014-03-11		Transmission to Judgments and Orders Clerk. Transmitted re: 25 Order on Motion for Summary Judgment, to the Judgments and Orders Clerk. (lmb) (Entered: 03/11/2014)
2014-03-13	26	CLERK'S JUDGMENT: That for the reasons stated in the Court's Memorandum and Order dated Marh 11, 2014, the Government's motion for summary judgment is granted; te ACLU's motion for summary judgment is denied; accordingly, the case is closed. The February and July Memoranda are exempt form the public disclosure under Exemption 5; The July Memoranda is also exempt from disclosure under Exemption 7(E); The Government has disclosed reasonable segregable portions of both memoranda. (Signed by Clerk of Court Ruby Krajick on 3/13/2014) (Attachments: # 1 Notice of Right to Appeal)(dt) (Entered: 03/14/2014)
2014-03-13		Terminate Transcript Deadlines (dt) (Entered: 03/14/2014)
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