Case Detail

FOIA Project Annotation: Judge Richard Leon ruled that a court order requiring the Justice Department and the House Committee on Oversight and Government Reform to keep their settlement discussions private acts as a prohibition against disclosure of such records to Judicial Watch. After the House Committee filed suit against Attorney General Eric Holder to enforce its subpoena for records concerning DOJ's Fast and Furious operation, the parties began settlement discussions under the direction of Judge Amy Berman Jackson. Jackson subsequently referred the settlement discussions to Senior Judge Barbara Rothstein. Judicial Watch then requested records pertaining to the settlement discussions and DOJ's Civil Division told Judicial Watch that responsive records were protected by Exemption 5 (privileges) and Jackson's court order. Judicial Watch sued and Leon sided with DOJ. He noted initially that D.C. Local Ruled 84.9 "prohibits the mediator, all counsel and parties and any other persons attending the mediation from disclosing any written or oral communications made in connection with or during any mediation session." Judicial Watch argued that the documents were created before Jackson ordered mediation, but Leon observed that "unfortunately for the plaintiff, its narrow interpretation of Local Rule 84.9 is inconsistent with the broad protections this District Court provides for confidential settlement discussions between parties." He pointed out that "to say the least, it strains credulity for plaintiff to argue that these communications were not 'made in connection' with mediation, given that the parties were strongly encouraged to engage in settlement discussions, and were reminded that court-ordered mediation might be ordered at any time. As is the case with formal court-ordered mediation, disclosure of sensitive�"yet informal�"settlement communications between parties would have a chilling effect on settlement negotiations and would be inconsistent with the core purpose of Local Rule 84.9�"to promote resolution of civil disputes short of litigation." He indicated that "here, we have an explicit statement from Judge Jackson instructing the parties to keep the substance of their settlement discussions private, extrinsic evidence that the parties believed there was a court-imposed restriction prohibiting the disclosure of the substance of their settlement negotiations, and a court rule prohibiting the disclosure of 'any written or oral communications made in connection with or during any mediation session. Based on the above, there can be no doubt that there was a valid court-imposed restriction prohibiting disclosure of confidential settlement communications between the parties. The defendant had no discretion to produce the responsive documents, and therefore, the withholding of those documents was clearly proper."
Issues: Exemption 3 - Statutory prohibition of disclosure

FOIA Project Annotation: On remand from the D.C. Circuit, Judge Richard Leon has once again ruled that six letters and two draft settlement agreements exchanged between the Department of Justice and the House Committee on Oversight and Government Reform in an attempt to settle litigation involving the enforcement of the Committee's subpoena for records pertaining to the agency's "Fast and Furious" operation are protected by Local Civil Rule 84.9, which provides for confidentiality of records submitted to a court-authorized mediator. The original litigation to enforce the subpoena was heard by Judge Amy Berman Jackson. She encouraged the parties to try to reach a settlement, but told them that she did not want to know the substance of those discussions. Judicial Watch filed a FOIA request with DOJ for the eight records. DOJ refused to disclose them, contending that they were subject to court-ordered non-disclosure. Judicial Watch sued and Leon agreed with the agency, citing not only LCR 84.9, but also finding that Jackson's instructions on settling the case suggested that she intended them to be confidential. Judicial Watch appealed to the D.C. Circuit. There the appeals court found Jackson's statement ambiguous and ordered the agency to clarify her intent. Jackson indicated that she had not intended to order the records sealed. But when the case came back to Leon, he ruled that LCR 84.9 still provided a sufficient basis for non-disclosure. Leon found that because Jackson had told the parties that Senior Judge Barbara Rothstein had agreed to serve as mediator if they chose to pursue that course, the fact that the parties, after failing to settle the dispute without further judicial intervention, later agreed to mediation overseen by Rothstein indicated that the earlier draft settlement records were made in connection with court-ordered mediation. Judicial Watch argued that LCR 84.9 only applied to mediation through the U.S. District Court's Mediation Program and, further, that it only applied to protect confidentiality of records during mediation. Noting that LCR 84.9 had never been used in the FOIA context before, Leon pointed out that "in this case, it is clear that the eight documents at issue were created following Judge Jackson's encouragement to engage in settlement discussions and after her admonition that she was prepared to order formal mediation. It is thus not necessary to define a precise temporal window for the phrase 'made in connection with.' On this record the documents plainly fit within it." Treating LCR 84.9 as a judicial prohibition against disclosure under FOIA, Leon emphasized the importance of keeping such mediation confidential. "Keeping mediation confidential is an incentive for parties to mediate. It also broadens the scope of potential solutions. If the prohibition on disclosure were immediately lifted when mediation or litigation concluded, parties that frequently find themselves in court (such as the Government) would be limited in their ability to explore creative solutions in individual cases, and one of the key benefits of mediation would be lost."
Issues: Exemption 3 - Statutory prohibition of disclosure

Date Filed	Doc #	Docket Text
2013-09-05	1	COMPLAINT against U.S. DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-3457150) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons U.S. Attorney, # 3 Summons U.S. Attorney General, # 4 Summons Department of Justice)(Orfanedes, Paul) (Entered: 09/05/2013)
2013-09-05	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. (Orfanedes, Paul) (Entered: 09/05/2013)
2013-09-05		Case Assigned to Judge Richard J. Leon. (sth, ) (Entered: 09/06/2013)
2013-09-06	3	NOTICE of Appearance by Michael Bekesha on behalf of JUDICIAL WATCH, INC. (Bekesha, Michael) (Entered: 09/06/2013)
2013-09-06	4	ELECTRONIC SUMMONS (3) Issued as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth, ) (Entered: 09/06/2013)
2013-09-10	5	SUMMONS REISSUED (1) as to U.S. Attorney. (kb) (Additional attachment(s) added on 9/10/2013: # 1 Consent Form, # 2 Notice of Consent) (kb, ). (Entered: 09/10/2013)
2013-09-19	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 9/16/2013. Answer due for ALL FEDERAL DEFENDANTS by 10/16/2013. (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 09/19/2013)
2013-10-07	7	NOTICE of Appearance by Nathan Michael Swinton on behalf of U.S. DEPARTMENT OF JUSTICE (Swinton, Nathan) (Entered: 10/07/2013)
2013-10-07	8	Unopposed MOTION to Stay Case in Light of Lapse of Appropriations by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Swinton, Nathan) (Entered: 10/07/2013)
2013-10-16	9	ANSWER to Complaint by U.S. DEPARTMENT OF JUSTICE.(Swinton, Nathan) (Entered: 10/16/2013)
2013-10-31	10	Joint MOTION for Briefing Schedule by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Swinton, Nathan) (Entered: 10/31/2013)
2013-11-05	11	ORDER : It is hereby ordered that the parties' 10 Joint Motion for Briefing Schedule is GRANTED. Defendant's motion for summary judgment due January 31, 2014; Plaintiff's opposition and cross motion due by February 28, 2014; Defendant's reply and opposition to cross motion due by March 28, 2014; Plaintiff's reply due by April 11, 2014. Signed by Judge Richard J. Leon on 11/02/13. (tb, ) (Entered: 11/05/2013)
2013-11-05		Set/Reset Deadlines: Cross Motions due by 2/28/2014. Response to Cross Motions due by 3/28/2014. Reply to Cross Motions due by 4/11/2014. Summary Judgment motions due by 1/31/2014. Response to Motion for Summary Judgment due by 2/28/2014. Reply to Motion for Summary Judgment due by 3/28/2014. (tb, ) (Entered: 11/05/2013)
2013-11-19	12	STANDING ORDER. Signed by Judge Richard J. Leon on 11/19/13. (lcrjl2) (Entered: 11/19/2013)
2014-01-03	13	MEET AND CONFER STATEMENT. (Swinton, Nathan) (Entered: 01/03/2014)
2014-01-30	14	Unopposed MOTION for Extension of Time to File Motion for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Swinton, Nathan) (Entered: 01/30/2014)
2014-02-03		MINUTE ORDER granting 14 Motion for Extension of Time. It is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the parties shall abide by the following briefing schedule: (1) defendant shall file its Motion for Summary Judgment by 2/7/2014; (2) plaintiff shall file its Opposition and Cross-Motion by 3/7/2014; (3) defendant shall file its Reply and Cross-Motion Opposition by 4/4/2014; and (4) plaintiff shall file its Reply to Cross-Motion by 4/18/2014. Signed by Judge Richard J. Leon on 2/3/14. (lcrjl2, ) (Entered: 02/03/2014)
2014-02-04		Set/Reset Deadlines: Cross Motions due by 3/7/2014. Response to Cross Motions due by 4/4/2014. Reply to Cross Motions due by 4/18/2014. Summary Judgment motions due by 2/7/2014. Response to Motion for Summary Judgment due by 3/7/2014. Reply to Motion for Summary Judgment due by 4/4/2014. (tb, ) (Entered: 02/04/2014)
2014-02-07	15	MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration of James M. Kovakas, # 4 Declaration of John R. Tyler, # 5 Exhibit A, # 6 Exhibit B, # 7 Exhibit C, # 8 Exhibit D, # 9 Exhibit E)(Swinton, Nathan) (Entered: 02/07/2014)
2014-03-07	16	Memorandum in opposition to re 15 MOTION for Summary Judgment with Response to Statement of Material Facts Not in Dispute filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 03/07/2014)
2014-03-07	17	Cross MOTION for Summary Judgment with Statement of Undisputed Material Facts by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 03/07/2014)
2014-04-04	18	REPLY to opposition to motion re 15 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Swinton, Nathan) (Entered: 04/04/2014)
2014-04-04	19	Memorandum in opposition to re 17 Cross MOTION for Summary Judgment with Statement of Undisputed Material Facts filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Swinton, Nathan) (Entered: 04/04/2014)
2014-04-10	20	REPLY to opposition to motion re 17 Cross MOTION for Summary Judgment with Statement of Undisputed Material Facts filed by JUDICIAL WATCH, INC.. (Bekesha, Michael) (Entered: 04/10/2014)
2014-05-09		MINUTE ORDER denying 8 Motion to Stay Case in Light of Lapse of Appropriations. It is hereby ORDERED that the motion is DENIED as moot. Signed by Judge Richard J. Leon on 5/9/14. (lcrjl2, ) (Entered: 05/09/2014)
2014-08-22	21	MEMORANDUM AND OPINION. Signed by Judge Richard J. Leon on 08/21/14. (tb, ) (Entered: 08/22/2014)
2014-08-22	22	ORDER: For all the reasons set forth in the Memorandum Opinion accompanying this Order; it is hereby ordered that the defendant's 15 Motion for Summary Judgment is GRANTED, and it is further ordered that the plaintiff 17 Cross Motion for Summary Judgment is DENIED, and it is further ordered that this case is DISMISSED WITH PREJUDICE. Signed by Judge Richard J. Leon on 08/22/14. (tb, ) (Entered: 08/22/2014)
2014-09-02	23	NOTICE OF APPEAL TO DC CIRCUIT COURT as to 22 Order on Motion for Summary Judgment,,, 21 Memorandum & Opinion by JUDICIAL WATCH, INC.. Filing fee $ 505, receipt number 0090-3824658. Fee Status: Fee Paid. Parties have been notified. (Bekesha, Michael) (Entered: 09/02/2014)
2014-09-03	24	Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 23 Notice of Appeal to DC Circuit Court. (znmw, ) (Entered: 09/03/2014)
2014-09-09		USCA Case Number 14-5215 for 23 Notice of Appeal to DC Circuit Court, filed by JUDICIAL WATCH, INC.. (rldj) (Entered: 09/09/2014)
2016-04-06	25	MANDATE of USCA (certified copy) ORDERED and ADJUDGED that the judgment of the District Court appealed from in this cause is hereby vacated and the case is remanded for further proceedings, in accordance with the opinion of the court filed herein this date. as to 23 Notice of Appeal to DC Circuit Court, filed by JUDICIAL WATCH, INC. USCA Case Number 14-5215. (zrdj) (Entered: 04/07/2016)
2016-04-12		NOTICE of Hearing: A Status Conference is scheduled for 5/3/2016 at 12:00 PM in Courtroom 18 before Judge Richard J. Leon. (jth) (Entered: 04/12/2016)
2016-04-13		NOTICE of Hearing: A Status Conference is scheduled for 5/31/2016 at 12:00 PM in Courtroom 18 before Judge Richard J. Leon. (jth) (Entered: 04/13/2016)
2016-05-31		Minute Entry: Status Conference held on 5/31/2016 before Judge Richard J. Leon: Parties will file motion for clarification with the Judge Amy B. Jackson. Status Conference set for 6/30/2016 at 04:00 PM in Courtroom 18 before Judge Richard J. Leon. (Court Reporter William Zaremba) (tb) Modified on 6/20/2016 (tb). (Entered: 05/31/2016)
2016-06-29	26	NOTICE of filing of Motion for Clarification by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Motion for Clarification filed in Committee on Oversight and Government Reform v. Lynch)(Swinton, Nathan) (Entered: 06/29/2016)
2016-06-29		MINUTE SCHEDULING ORDER: It is hereby ORDERED that the status conference set for June 30, 2016 at 4:00 PM is hereby CONTINUED to a date to be determined after Judge Jackson has had a chance to respond to the Motion for Clarification filed today in Committee on Oversight and Government Reform, U.S. House of Representatives v. Lynch, Case No. 1:12-cv-1332 (ABJ). Signed by Judge Richard J. Leon on 6/29/2016. (lcrjl2, ) (Entered: 06/29/2016)
2016-06-30		MINUTE ORDER: It is hereby ordered that today's hearing is continued to a date to be determined. SO ORDERED - Judge Richard J. Leon on 06/30/16. (tb) (Entered: 06/30/2016)
2016-06-30	27	NOTICE of Order on Motion for Clarification by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Order on Motion for Clarification)(Swinton, Nathan) (Entered: 06/30/2016)
2016-07-19	28	Joint MOTION for Status Conference by U.S. DEPARTMENT OF JUSTICE (Swinton, Nathan) (Entered: 07/19/2016)
2016-07-20		MINUTE ORDER: Upon consideration of the 28 Joint Motion for Status Conference by U.S. DEPARTMENT OF JUSTICE ; it is hereby ordered that the motion is GRANTED. Status Conference for August 23, 2016 at 3:00 p.m. in Courtroom 18 before Judge Richard J. Leon. SO ORDERED - Judge Richard J. Leon on 07/20/16. (tb) (Entered: 07/20/2016)
2016-07-20		Set/Reset Hearings: Status Conference set for 8/23/2016 at 03:00 PM in Courtroom 18 before Judge Richard J. Leon. (tb) (Entered: 07/20/2016)
2016-07-21	29	Unopposed MOTION for Order Rescheduling Status Conference by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Swinton, Nathan) (Entered: 07/21/2016)
2016-08-08		MINUTE ORDER. Upon consideration of Defendant's 29 Unopposed Motion to Reschedule the Status Conference, it is ORDERED that the Motion be Granted. The Status Conference presently scheduled for Tuesday, August 23, 2016, at 3:00 PM is cancelled and will be rescheduled for a date and time to be determined. SO ORDERED. By Judge Richard J. Leon on 8/8/2016. (jth) (Entered: 08/08/2016)
2016-09-01	30	ORDER re 28 Joint MOTION for Status Conference filed by U.S. DEPARTMENT OF JUSTICE: It is hereby ordered that parties shall reconstitute their summary judgment briefing; and it is further ordered that defendant's summary judgment motion due by 10/3/2016. Plaintiff's response/cross motion due by 11/1/2016. Defendant's reply/response to cross motion due by 12/1/2016. Plaintiff's reply to cross motions due by 12/15/2016. Signed by Judge Richard J. Leon on 09/01/16. SEE ORDER FOR FULL DETAILS. (tb) (Entered: 09/02/2016)
2016-10-03	31	Second MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support)(Swinton, Nathan) (Entered: 10/03/2016)
2016-10-17	32	Memorandum in opposition to re 31 Second MOTION for Summary Judgment with Statement of Material Facts filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 10/17/2016)
2016-10-17	33	Cross MOTION for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 10/17/2016)
2016-10-27	34	NOTICE of Filing of Proposed Order by U.S. DEPARTMENT OF JUSTICE re 31 Second MOTION for Summary Judgment (Attachments: # 1 Text of Proposed Order)(Swinton, Nathan) (Entered: 10/27/2016)
2016-10-27	35	REPLY to opposition to motion re 31 Second MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Swinton, Nathan) (Entered: 10/27/2016)
2016-10-27	36	Memorandum in Opposition re 33 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Swinton, Nathan) Modified event title on 10/28/2016 (znmw). (Entered: 10/27/2016)
2016-10-28	37	REPLY to opposition to motion re 33 Cross MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Bekesha, Michael) (Entered: 10/28/2016)
2017-09-25	38	MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 9/24/2017. (jth) (Entered: 09/25/2017)
2017-09-25	39	ORDER. For all the reasons set forth in the Memorandum Opinion accompanying this Order, it is hereby ORDERED that defendants' Second Motion for Summary Judgment 31 is GRANTED; and it is further ORDERED that plaintiffs' Cross-Motion for Summary Judgment 33 is DENIED; and it is further ORDERED that this Order constitutes a final, appealable order. SO ORDERED. Signed by Judge Richard J. Leon on 9/24/2017. (jth) (Entered: 09/25/2017)
2017-10-04	40	NOTICE OF APPEAL TO DC CIRCUIT COURT as to 39 Order on Motion for Summary Judgment,,, 38 Memorandum & Opinion by JUDICIAL WATCH, INC.. Filing fee $ 505, receipt number 0090-5144624. Fee Status: Fee Paid. Parties have been notified. (Bekesha, Michael) (Entered: 10/04/2017)
2017-10-05	41	Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 40 Notice of Appeal to DC Circuit Court. (znmw) (Entered: 10/05/2017)
2017-10-06		USCA Case Number 17-5229 for 40 Notice of Appeal to DC Circuit Court, filed by JUDICIAL WATCH, INC. (zrdj) (Entered: 10/11/2017)
2018-06-06	42	MANDATE of USCA as to 40 Notice of Appeal to DC Circuit Court, filed by JUDICIAL WATCH, INC. ; USCA Case Number 17-5229. (Attachments: # 1 USCA Judgment 17-5229)(ztd) (Entered: 06/06/2018)
Hide Docket Events