Case Detail

FOIA Project Annotation: A federal court in New York has ruled that the Justice Department properly withheld legal guidance sent to various DOJ components, particularly the Bureau of Alcohol, Tobacco, and Firearms concerning the immediate consequences of the Supreme Court's 2012 ruling in United States v. Jones, in which the Court found that the use of GPS tracking devices for law enforcement surveillance normally required a search warrant under Exemption 5 (privileges). New York Times reporter Michael Schmidt sent a request to ATF for records indicating the advice given to its agents in light of the Jones decision. ATF referred some responsive documents to the Criminal Division and OIP, which processed requests for the Office of the Deputy Attorney General. The Times appealed ATF's denial to OIP and then filed suit. Other records were then referred to the FBI. The Times challenged withholdings under Exemption 5 as well as Exemption 7(E) (investigative methods and techniques). The Times argued that six memos that were found as a result of Schmidt's request were not protected by either the deliberative process privilege, attorney-client privilege, or attorney work-product privilege because they constituted the working law of the agency. But Judge Denise Cote disagreed. She noted that the memos were drafted and circulated shortly after Jones was decided and were intended to help agencies minimize the effects of the Jones decision on ongoing investigations and anticipated litigation. As to an email sent by ATF's attorney to agents, Cote pointed out that "an email, distributed on the day following the Jones opinion by a person who lacks final authority to make policy is not a final opinion." One memo originated with the FBI and Cote questioned whether it was even responsive to Schmidt's request for advice from ATF. Regardless, she observed that the memo "does not constitute the working law of the FBI. The guidance was drafted within hours of the Jones decision. In this sense, it is much closer in form and function to predecisional, deliberative documents that are generally exempt from disclosure under FOIA than an agency's working law." Even a document from the Criminal Appellate Section of DOJ entitled "Final Guidance Memo" did not constitute the agency's working law. Cote pointed out that "policy interpretations and statements that go beyond providing a neutral analysis of an agency's obligations under the law are not working law." She added that "here, DOJ's views regarding the likely challenges to the use of GPS tracking devices and available defense to those challenges will be borne out publicly in court. Because these positions described in these memoranda will ultimately become public, the 'secret law' rationale does not support the application of the working law principle in this situation."
Issues: Exemption 5 - Privileges - Waiver of privilege

Date Filed	Doc #	Docket Text
2014-01-17	1	COMPLAINT against United States Department of Justice. (Filing Fee $ 350.00, Receipt Number 1085689)Document filed by The New York Times Company, Michael Schmidt.(laq) (Entered: 01/23/2014)
2014-01-17		SUMMONS ISSUED as to United States Department of Justice. (laq) (Entered: 01/23/2014)
2014-01-17		Magistrate Judge Frank Maas is so designated. (laq) (Entered: 01/23/2014)
2014-01-17		Case Designated ECF. (laq) (Entered: 01/23/2014)
2014-01-23	2	RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by The New York Times Company.(Baranetsky, Diana) (Entered: 01/23/2014)
2014-02-03	3	NOTICE OF APPEARANCE by Carina Hyatt Schoenberger on behalf of United States Department of Justice. (Schoenberger, Carina) (Entered: 02/03/2014)
2014-02-14	4	LETTER MOTION for Extension of Time to File Answer addressed to Judge Katherine Polk Failla from Preet Bharara by Carina H. Schoenberger dated February 14, 2014. Document filed by United States Department of Justice.(Schoenberger, Carina) (Entered: 02/14/2014)
2014-02-14	5	ORDER granting 4 Letter Motion for Extension of Time to Answer. Application GRANTED. Defendant shall respond to the Complaint by March 5, 2014. United States Department of Justice answer due 3/5/2014. (Signed by Judge Katherine Polk Failla on 2/14/2014) (ft) (Entered: 02/18/2014)
2014-03-04	6	LETTER MOTION for Extension of Time to File Answer addressed to Judge Katherine Polk Failla from Preet Bharara by Carina H. Schoenberger dated March 4, 2014. Document filed by United States Department of Justice.(Schoenberger, Carina) (Entered: 03/04/2014)
2014-03-04	7	ORDER granting 6 Letter Motion for Extension of Time to Answer: Application GRANTED. The Government shall respond to the Complaint by March 19, 2014. United States Department of Justice answer due 3/19/2014. (Signed by Judge Katherine Polk Failla on 3/4/2014) (tn) (Entered: 03/04/2014)
2014-03-18	8	LETTER addressed to Judge Katherine Polk Failla from David McCraw dated March 18, 2014 re: Amended Complaint. Document filed by Michael Schmidt, The New York Times Company.(Baranetsky, Diana) (Entered: 03/18/2014)
2014-03-18	9	MEMO ENDORSEMENT on re: 8 Letter filed by The New York Times Company, Michael Schmidt. ENDORSEMENT: Application GRANTED. Plaintiff shall file an Amended Complaint by March 26, 2014. Defendant shall respond to the Amended Complaint according to Federal Rule of Civil Procedure 15(a)(3). (Amended Pleadings due by 3/26/2014.) (Signed by Judge Katherine Polk Failla on 3/18/2014) (tn) (Entered: 03/19/2014)
2014-03-25	10	FIRST AMENDED COMPLAINT amending 1 Complaint against The New York Times Company, Michael Schmidt.Document filed by The New York Times Company, Michael Schmidt. Related document: 1 Complaint filed by The New York Times Company, Michael Schmidt.(Baranetsky, Diana) (Entered: 03/25/2014)
2014-04-09	11	ANSWER to Complaint. Document filed by United States Department of Justice.(Schoenberger, Carina) (Entered: 04/09/2014)
2014-04-10	12	NOTICE OF INITIAL PRETRIAL CONFERENCE: Initial Pretrial Conference set for 5/13/2014 at 02:30 PM in Courtroom 618, 40 Centre Street, New York, NY 10007 before Judge Katherine Polk Failla. (Signed by Judge Katherine Polk Failla on 4/10/2014) (tn) (Entered: 04/10/2014)
2014-04-11	13	LETTER addressed to Judge Katherine Polk Failla from David E. McCraw dated 4/11/2014 re: Proposed Briefing Schedule. Document filed by Michael Schmidt, The New York Times Company.(Baranetsky, Diana) (Entered: 04/11/2014)
2014-04-14	14	MEMO ENDORSEMENT on re: 13 Letter filed by The New York Times Company, Michael Schmidt. ENDORSEMENT: Application DENIED. The parties shall appear for the conference already scheduled for May 13, 2014, at 2:30 p.m. in Courtroom 618 of the Thurgood Marshall Courthouse, 40 Foley Square, New York, New York. Any party seeking leave to make a motion should file the pre-motion submission required by Rule 4.A of the Court's Individual Rules of Practice in Civil Cases by May 5, 2014. Any party opposing such a motion should file an opposing pre-motion letter by May 8, 2014. (Signed by Judge Katherine Polk Failla on 4/14/2014) (mro) (Entered: 04/15/2014)
2014-05-05	15	LETTER MOTION for Conference addressed to Judge Katherine Polk Failla from Preet Bharara by Carina H. Schoenberger dated May 5, 2014. Document filed by United States Department of Justice.(Schoenberger, Carina) (Entered: 05/05/2014)
2014-05-07	16	LETTER addressed to Judge Katherine Polk Failla from David McCraw dated 5/7/2014 re: Notice of Cross-Motion. Document filed by Michael Schmidt, The New York Times Company.(Baranetsky, Diana) (Entered: 05/07/2014)
2014-05-08	17	LETTER addressed to Judge Katherine Polk Failla from David McCraw dated 5/8/2014 re: Civil Case Management Plan. Document filed by Michael Schmidt, The New York Times Company. (Attachments: # 1 Civil Case Management Plan)(Baranetsky, Diana) (Entered: 05/08/2014)
2014-05-13		Minute Entry for proceedings held before Judge Katherine Polk Failla: Pre-Motion Conference held on 5/13/2014. (Court Reporter Sonya Huggins) (Lopez, Jose) (Entered: 05/13/2014)
2014-05-15	18	ORDER: As discussed at the conference on May 13, 2014, the following schedule is hereby set for the parties anticipated cross-motions for summary judgment: 1) Defendant's first brief in support of its motion for summary judgment shall be due by May 29, 2014, and extend for no more than 25 pages; 2) Plaintiffs' first brief, in support of its motion for summary judgment and in opposition to Defendants motion for summary judgment, shall be due by June 20, 2014, and extend for no more than 25 pages; 3) Defendant's second brief, in further support of its motion for summary judgment and in opposition to Plaintiffs' motion for summary judgment, shall be due by July 2, 2014, and extend for no more than 15 pages; 4) Plaintiffs' second brief, as reply in further support of its motion for summary judgment, shall be due by July 14, 2014, and extend for no more than 10 pages; and 5) Defendant's third brief, as sur-reply in opposition to Plaintiff's motion for summary judgment, shall be due by July 21, 2014, and extend for no more than 10 pages., ( Motions due by 6/20/2014., Responses due by 7/2/2014., Replies due by 7/14/2014., Surreplies due by 7/21/2014.) (Signed by Judge Katherine Polk Failla on 5/15/2014) (lmb) (Entered: 05/16/2014)
2014-05-27	19	LETTER MOTION for Extension of Time addressed to Judge Katherine Polk Failla from Preet Bharara by Carina H. Schoenberger dated May 27, 2014. Document filed by United States Department of Justice. (Attachments: # 1 Text of Proposed Order)(Schoenberger, Carina) (Entered: 05/27/2014)
2014-05-27	20	ORDER granting 19 Letter Motion for Extension of Time: Defendant's first brief in support of its motion for summary judgment shall be due by June 12, 2014, and extend for no more than 25 pages; Plaintiffs' first brief, in support of its motion for summary judgment and in opposition to Defendant's motion for summary judgment, shall be due by July 3, 2014, and extend for no more than 25 pages; Defendant's second brief, in further support of its motion for summary judgment and in opposition to Plaintiffs' motion for summary judgment, shall be due by July 16, 2014, and extend for no more than 15 pages; Plaintiffs' second brief, as reply in further support of its motion for summary judgment, shall be due by July 28, 2014, and extend for no more than 10 pages; and Defendant's third brief, as sur-reply in opposition to Plaintiff's motion for summary judgment, shall be due by August 4, 2014, and extend for no more than 10 pages. (Signed by Judge Katherine Polk Failla on 5/27/2014) (tn) (Entered: 05/27/2014)
2014-05-27		Set/Reset Deadlines: Motions due by 6/12/2014. Cross Motions due by 7/3/2014. Responses due by 7/16/2014. Replies due by 7/28/2014. Surreplies due by 8/4/2014. (tn) (Entered: 05/27/2014)
2014-06-05	21	TRANSCRIPT of Proceedings re: CONFERENCE held on 5/13/2014 before Judge Katherine Polk Failla. Court Reporter/Transcriber: Sonya Ketter Huggins, (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 6/30/2014. Redacted Transcript Deadline set for 7/10/2014. Release of Transcript Restriction set for 9/8/2014.(Rodriguez, Somari) (Entered: 06/05/2014)
2014-06-05	22	NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 5/13/14 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: 06/05/2014)
2014-06-12	23	MOTION for Summary Judgment . Document filed by United States Department of Justice. Responses due by 7/3/2014(Schoenberger, Carina) (Entered: 06/12/2014)
2014-06-12	24	MEMORANDUM OF LAW in Support re: 23 MOTION for Summary Judgment . . Document filed by United States Department of Justice. (Schoenberger, Carina) (Entered: 06/12/2014)
2014-06-12	25	DECLARATION of Stephanie M. Boucher in Support re: 23 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, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N)(Schoenberger, Carina) (Entered: 06/12/2014)
2014-06-12	26	DECLARATION of David M. Hardy in Support re: 23 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, # 5 Exhibit E)(Schoenberger, Carina) (Entered: 06/12/2014)
2014-07-02	27	MOTION for Summary Judgment . Document filed by Michael Schmidt, The New York Times Company. Responses due by 7/16/2014 Return Date set for 7/28/2014 at 05:00 PM.(Baranetsky, Diana) (Entered: 07/02/2014)
2014-07-02	28	MEMORANDUM OF LAW in Support re: 27 MOTION for Summary Judgment . . Document filed by Michael Schmidt, The New York Times Company. (Baranetsky, Diana) (Entered: 07/02/2014)
2014-07-02	29	DECLARATION of David E. McCraw in Support re: 27 MOTION for Summary Judgment .. Document filed by Michael Schmidt, The New York Times Company. (Attachments: # 1 Exhibit A)(Baranetsky, Diana) (Entered: 07/02/2014)
2014-07-16	30	MEMORANDUM OF LAW in Support re: 23 MOTION for Summary Judgment . and in Opposition to Plaintiffs' Cross-Motion for Summary Judgment . Document filed by United States Department of Justice. (Schoenberger, Carina) (Entered: 07/16/2014)
2014-07-16	31	DECLARATION of Melissa A. Anderson in Support re: 23 MOTION for Summary Judgment .. Document filed by United States Department of Justice. (Schoenberger, Carina) (Entered: 07/16/2014)
2014-07-16	32	DECLARATION of David M. Hardy in Support re: 23 MOTION for Summary Judgment .. Document filed by United States Department of Justice. (Schoenberger, Carina) (Entered: 07/16/2014)
2014-07-28	33	REPLY MEMORANDUM OF LAW in Support re: 27 MOTION for Summary Judgment . . Document filed by Michael Schmidt, The New York Times Company. (Baranetsky, Diana) (Entered: 07/28/2014)
2014-08-04	34	REPLY MEMORANDUM OF LAW in Support re: 23 MOTION for Summary Judgment . and in Opposition to Plaintiffs' Cross-Motion for Summary Judgment . Document filed by United States Department of Justice. (Schoenberger, Carina) (Entered: 08/04/2014)
2014-12-29	35	ORDER: that Defendant is hereby ORDERED to produce the six documents at issue (Items 1-6) in their unredacted form to the Court for in camera review on or before January 9, 2015. (Signed by Judge Katherine Polk Failla on 12/29/2014) (tn) (Entered: 12/29/2014)
2015-01-23		NOTICE OF CASE REASSIGNMENT to Judge Denise L. Cote. Judge Katherine Polk Failla is no longer assigned to the case. (sjo) (Entered: 01/23/2015)
2015-03-31	36	OPINION & ORDER: The defendant's June 12 motion for summary judgment is granted. The plaintiffs' July 2 motion for summary judgment is denied. The Clerk of Court shall enter judgment for the defendant and close the case. (Signed by Judge Denise L. Cote on 3/31/2015) (gr) (Entered: 03/31/2015)
2015-03-31		Transmission to Judgments and Orders Clerk. Transmitted re: 36 Opinion & Order to the Judgments and Orders Clerk. (gr) (Entered: 03/31/2015)
2015-03-31	37	CLERK'S JUDGMENT: It is, ORDERED, ADJUDGED AND DECREED: that for the reasons stated in the Court's Opinion & Order dated March 31, 2015 (Doc. # 36), the defendants June 12 motion forsummary judgment is granted, the plaintiffs' July 2 motion for summary judgment is denied, and judgment is entered for the defendant; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 03/31/2015) (Attachments: # 1 Right to Appeal, # 2 Right to Appeal)(km) (Entered: 03/31/2015)
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