Case Detail

FOIA Project Annotation: Judge Randolph Moss has become the latest D.C. Circuit district court judge to rule in a prisoner case that the Justice Department's Criminal Division properly withheld wiretap authorizations and memos under Exemption 3 (other statutes) and Exemption 5 (privileges). Eric Ewell requested records about the use of wiretaps during his trial on possession of heroin. The Criminal Division told Ewell that it would not search for such records because they were exempt under Title III. Ewell filed suit and the agency searched for the records, but withheld them all under Exemption 3 and Exemption 5. Ewell argued the search was inadequate because the agency should have searched for records more broadly under his name. Moss noted that "Ewell sought a precise set of documentsâ€"an authentic [Office of Enforcement Operations] 'copy of the Title III authorization letter(s), memorandums, and any other documents involved in their approval for the electronic surveillance' conducted on five telephone lines. As [the agency's affidavit] explains, OEO is the component of the Criminal Division that processes requests from prosecutors seeking permission to apply for court-authorized surveillance and that makes recommendations to the Assistant Attorney General for approval of those requests. The Department thus reasonably construed Ewell's FOIA request for records actually involved in that approval process and, accordingly reasonably concluded that its search effort should focus on records maintained by OEO and communications between OEO and the prosecutor who sought approval for the wiretap." Ewell argued that the existence of wiretaps was made public at his trial. But Moss indicated that while wiretaps were mentioned as his trial, there was no evidence that the contents of any of the wiretaps were made public. Moss pointed out that "even if the recordings had been made public that would not justify the release of application materials." He then found that any records not covered by Exemption 3 were attorney work-product protected under Exemption 5 and that because the privilege covered both advice and factual material, the agency did not have to consider whether any information was segregable.
Issues: Adequacy - Search, Exemption 3 - Statutory prohibition of disclosure, Exemption 5 - Privileges - Attorney work-product privilege

Date Filed	Doc #	Docket Text
2014-03-27	1	COMPLAINT against UNITED STATES DEPARTMENT OF JUSTICE CRIMINAL DIVISION, UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF INFORMATION POLICY ( Filing fee $ 400, receipt number 4616062892) filed by ERIC EWELL. (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet)(am, ) (Entered: 04/03/2014)
2014-03-27		SUMMONS Issued (4) as to UNITED STATES DEPARTMENT OF JUSTICE CRIMINAL DIVISION, UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF INFORMATION POLICY, U.S. Attorney and U.S. Attorney General (am, ) (Entered: 04/03/2014)
2014-05-15	2	ANSWER to 1 Complaint, by UNITED STATES DEPARTMENT OF JUSTICE(Office of Information Policy), UNITED STATES DEPARTMENT OF JUSTICE(Criminal Division).(Haynes, Fred) (Entered: 05/15/2014)
2014-05-30		MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall promptly confer and file a joint proposed schedule for briefing or disclosure by 6/13/2014. Signed by Judge Ketanji Brown Jackson on 05/30/2014. (lckbj1) (Entered: 05/30/2014)
2014-05-30	3	GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. Signed by Judge Ketanji Brown Jackson on 05/30/2014. (lckbj1) (Entered: 05/30/2014)
2014-06-13	4	MOTION for Briefing Schedule by UNITED STATES DEPARTMENT OF JUSTICE(Office of Information Policy), UNITED STATES DEPARTMENT OF JUSTICE(Criminal Division) (Haynes, Fred) (Entered: 06/13/2014)
2014-06-16		MINUTE ORDER granting 4 Motion for Briefing Schedule. Defendant's Motion for Summary Judgment due by 9/22/2014. Plaintiff's Opposition and Cross-Motion for Summary Judgment due by 11/3/2014. Defendant's Reply and Opposition to Cross-Motion due by 11/17/2014. Plaintiff's Reply due by 12/1/2014. Signed by Judge Ketanji Brown Jackson on 6/16/2014. (lckbj3) (Entered: 06/16/2014)
2014-06-18		Set/Reset Deadlines: Cross Motions due by 11/3/2014. Response to Cross Motions due by 11/17/2014. Reply to Cross Motions due by 12/1/2014. Summary Judgment motions due by 9/22/2014. Response to Motion for Summary Judgment due by 11/3/2014. Reply to Motion for Summary Judgment due by 11/17/2014. (gdf) (Entered: 06/18/2014)
2014-07-01	5	MOTION for Discovery by ERIC EWELL. "Let this be filed" signed by Judge Ketanji Brown Jackson on 06/27/2014 (jf, ) (Entered: 07/01/2014)
2014-07-29	6	MOTION to supplement requested relief in pending civil action by ERIC EWELL (td, ) (Entered: 07/30/2014)
2014-08-14	7	Memorandum in opposition to re 6 MOTION for Order to Supplement the Requested Relief filed by UNITED STATES DEPARTMENT OF JUSTICE(Office of Information Policy), UNITED STATES DEPARTMENT OF JUSTICE(Criminal Division). (Haynes, Fred) (Entered: 08/14/2014)
2014-09-22	8	MOTION for Extension of Time to File Defendants' Motion for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE(Office of Information Policy), UNITED STATES DEPARTMENT OF JUSTICE(Criminal Division) (Haynes, Fred) (Entered: 09/22/2014)
2014-10-05		MINUTE ORDER granting, for good cause shown, 8 Defendants' Motion for Extension of Time to File Motion for Summary Judgment, nunc pro tunc to 9/22/2014. It is hereby ORDERED that the briefing schedule in this matter is modified as follows: Defendant's Motion for Summary Judgment due by 11/3/2014. Plaintiff's Consolidated Opposition and Cross-Motion for Summary Judgment due by 12/15/2014. Defendant's Consolidated Reply and Opposition to Cross-Motion due by 12/29/2014. Plaintiff's Reply due by 1/20/2015. Signed by Judge Ketanji Brown Jackson on 10/05/2014. (lckbj1) (Entered: 10/05/2014)
2014-10-17		MINUTE ORDER. Plaintiff, who is proceeding pro se in this FOIA matter, has filed two motions that are currently pending before this Court. In the first, 5 Motion for Discovery, he requests that this Court enter a briefing schedule in this matter. Because this Court has already set a summary judgment briefing schedule (see Minute Orders of 6/16/2014 and 10/05/2014), this motion is moot. In 6 Motion to Supplement Requested Relief in Pending Civil Action, Plaintiff seeks to name additional defendants and add new causes of action to his complaint "if it is determined by this Court that the Title III requested records sought in this action do no[t] exist, which thus would implicate that there have been numerous flagrant egregious violations" of the law. While Plaintiff purports to bring this motion under Federal Rule of Civil Procedure 15(b), it is properly characterized as a motion to amend the complaint under Rule 15(a). Although it is certainly the case that the court should freely give a plaintiff leave to amend the complaint when justice so requires[,] Fed. R. Civ. P. 15(a)(2), this Court finds that the proposed amendment would be futile, as it is based on speculation about future events and thus fails to state a plausible claim for relief at this time. The Court therefore will deny the motion without prejudice.Accordingly, it is hereby ORDERED that 5 Motion for Discovery is DENIED as moot and that 6 Motion to Supplement Requested Relief in Pending Civil Action is DENIED without prejudice. Signed by Judge Ketanji Brown Jackson on 10/17/2014. (lckbj1) (Entered: 10/17/2014)
2014-10-29	9	NOTICE of Appearance by Rhonda C. Fields on behalf of All Defendants (Fields, Rhonda) (Entered: 10/29/2014)
2014-10-29	10	MOTION for Extension of Time to file motion for summary judgment by UNITED STATES DEPARTMENT OF JUSTICE(Office of Information Policy), UNITED STATES DEPARTMENT OF JUSTICE(Criminal Division) (Attachments: # 1 Text of Proposed Order)(Fields, Rhonda) (Entered: 10/29/2014)
2014-10-30		MINUTE ORDER granting, for good cause shown, 10 Defendants' Motion for Extension of Time to File Motion for Summary Judgment. It is hereby ORDERED that the briefing schedule in this matter is modified as follows: Defendant's Motion for Summary Judgment due by 11/17/2014. Plaintiff's Consolidated Opposition and Cross-Motion for Summary Judgment due by 12/29/2014. Defendant's Consolidated Reply and Opposition to Cross-Motion due by 1/23/2015. Plaintiff's Reply due by 2/16/2015. Signed by Judge Ketanji Brown Jackson on 10/30/2014. (lckbj1) (Entered: 10/30/2014)
2014-11-17	11	MOTION for Extension of Time to File Defendants' Motion for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE(Office of Information Policy), UNITED STATES DEPARTMENT OF JUSTICE(Criminal Division) (Haynes, Fred) (Entered: 11/17/2014)
2014-11-18		MINUTE ORDER granting, for good cause shown, 11 Motion for Extension of Time to File Defendants' Motion for Summary Judgment, nunc pro tunc to 11/17/2014. Defendants' Motion for Summary Judgment is due by 11/21/2014. Signed by Judge Ketanji Brown Jackson on 11/18/2014. (lckbj1) (Entered: 11/18/2014)
2014-11-20		Case randomly reassigned to Judge Randolph D. Moss. Judge Ketanji Brown Jackson no longer assigned to the case. (gt, ) (Entered: 11/20/2014)
2014-11-21	12	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE(Office of Information Policy), UNITED STATES DEPARTMENT OF JUSTICE(Criminal Division) (Attachments: # 1 Exhibit 1 (Cunningham declaration), # 2 Exhibit A to Exhibit 1 (FOIA request), # 3 Exhibit B to Exhibit 1 (Response to FOIA request), # 4 Exhibit C to Exhibit 1 (Appeal to OIP), # 5 Exhibit D to Exhibit 1 (Initial Response to Appeal), # 6 Exhibit E to Exhibit 1 (Letter closing appeal), # 7 Exhibit F to Exhibit 1 (Vaughn index), # 8 Exhibit G to Exhibit 1 (Table), # 9 Exhibit H to Exhibit 1 (Transcript), # 10 Exhibit 2 (Appeal to OIP and attachments))(Haynes, Fred) (Entered: 11/21/2014)
2014-12-19	13	MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Summary Judgment by ERIC EWELL (Attachments: # 1 Text of Proposed Order)"LET THIS BE FILED." by Judge Ketanji Brown Jackson(rdj) (Entered: 01/05/2015)
2015-02-02	14	MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Summary Judgment and to File and Amended Complaint by ERIC EWELL (Attachments: # 1 Text of Proposed Order)"Let this be filed" signed by Judge Randolph D. Moss (rdj) (Entered: 02/03/2015)
2015-02-17	15	ORDER: See Order for Details. Plaintiff shall respond to Defendant's Motion for Summary Judgment by March 20, 2015. Plaintiff's motions for extension of time to file response/reply 13 , 14 are DENIED as moot. Signed by Judge Randolph D. Moss on 2/17/2015. (lcrdm2, ) (Entered: 02/17/2015)
2015-02-18		Set/Reset Deadline: Plaintiff shall respond to Defendant's Motion for Summary Judgment by 3/20/2015. (ad) (Entered: 02/18/2015)
2015-02-23	16	Memorandum in opposition to re 12 MOTION for Summary Judgment filed by ERIC EWELL. (Attachments: # 1 Exhibit)(jf, ) (Entered: 02/24/2015)
2015-02-23	17	STRICKEN PURSUANT TO MINUTE ORDER FILED 3/20/2015.....AMENDED COMPLAINT against DRUG ENFORCEMENT ADMINISTRATION, GARY DAVIS, ERIC HARPSTER, FALASCINO, JOHN DOE, TASK FORCE OFFICER, TASK FORCE AGENTS, DAVID J. HICKTON, TROY RIVETTI, JOHN DOE AUSUS filed by ERIC EWELL.(jf, ) Modified on 3/23/2015 (rdj). (Entered: 02/24/2015)
2015-03-04	18	MOTION to Strike 17 Amended Complaint by UNITED STATES DEPARTMENT OF JUSTICE(Criminal Division), UNITED STATES DEPARTMENT OF JUSTICE(Office of Information Policy) (Haynes, Fred) (Entered: 03/04/2015)
2015-03-06	19	First MOTION for Extension of Time to File Response/Reply to Plaintiff's Opposition to Defendants Motion for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE(Criminal Division), UNITED STATES DEPARTMENT OF JUSTICE(Office of Information Policy) (Haynes, Fred) (Entered: 03/06/2015)
2015-03-16		MINUTE ORDER: Upon consideration of Defendants' Motion for Extension of Time to File Response/Reply 19 , it is hereby ORDERED that the motion is GRANTED. Defendants shall file any reply in support of the Motion for Summary Judgment 12 on or before March 19, 2015. Signed by Judge Randolph D. Moss on 3/16/2015. (lcrdm2, ) (Entered: 03/16/2015)
2015-03-16		Set/Reset Deadline: Defendants shall file any reply in support of the Motion for Summary Judgment 12 on or before 3/19/2015. (kt) (Entered: 03/16/2015)
2015-03-19	20	MOTION for Extension of Time to File Response/Reply to Plaintiff's Opposition to Defendants' Motion for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE(Criminal Division), UNITED STATES DEPARTMENT OF JUSTICE(Office of Information Policy) (Haynes, Fred) (Entered: 03/19/2015)
2015-03-20		MINUTE ORDER: Upon consideration of Defendants' Motion to Strike Amended Complaint 18 , it is hereby ORDERED that the motion is GRANTED and the Amended Complaint is stricken without prejudice. Plaintiff may file a motion seeking leave to file an amended complaint with the proposed amended complaint attached to that motion in accordance with LCvR 15.1. Signed by Judge Randolph D. Moss on 3/20/2015. (lcrdm2, ) (Entered: 03/20/2015)
2015-03-20		MINUTE ORDER: Upon consideration of Defendants' Motion for Extension of Time to File Response/Reply 20 , it is hereby ORDERED that the motion is GRANTED. Defendants shall file any reply on or before March 26, 2015. Signed by Judge Randolph D. Moss on 3/20/2015. (lcrdm2, ) (Entered: 03/20/2015)
2015-03-23		Set/Reset Deadline: Defendants shall file any reply on or before 3/26/2015. (kt) (Entered: 03/23/2015)
2015-03-26	21	Third MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE(Criminal Division), UNITED STATES DEPARTMENT OF JUSTICE(Office of Information Policy) (Haynes, Fred) (Entered: 03/26/2015)
2015-03-27		MINUTE ORDER: Upon consideration of Defendants' Motion for Extension of Time to File Response/Reply 21 , it is hereby ORDERED that the motion is GRANTED. Defendants shall file their reply in support of the Motion for Summary Judgment 12 on or before March 31, 2015. Signed by Judge Randolph D. Moss on 3/27/2015. (lcrdm2, ) (Entered: 03/27/2015)
2015-03-27		Set/Reset Deadline: Defendants shall file their reply in support of the Motion for Summary Judgment 12 on or before 3/31/2015. (kt) (Entered: 03/27/2015)
2015-03-31	22	Final MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE(Criminal Division), UNITED STATES DEPARTMENT OF JUSTICE(Office of Information Policy) (Haynes, Fred) (Entered: 03/31/2015)
2015-04-01	23	REPLY to opposition to motion re 12 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE(Criminal Division), UNITED STATES DEPARTMENT OF JUSTICE(Office of Information Policy). (Haynes, Fred) (Entered: 04/01/2015)
2015-04-01		MINUTE ORDER: Upon consideration of Defendants' Motion for Extension of Time to File Response/Reply 22 , it is hereby ORDERED that the motion is GRANTED. The deadline to file Defendants' reply is hereby extended to April 1, 2015. Signed by Judge Randolph D. Moss on 4/1/2015. (lcrdm2, ) (Entered: 04/01/2015)
2015-04-02		Set/Reset Deadline: The deadline to file Defendants' reply is hereby extended to 4/1/2015. (kt) (Entered: 04/02/2015)
2015-04-13	24	MOTION for Leave to File an Amended Complaint, MOTION for Extension of Time to File Response as to 12 MOTION for Summary Judgment by ERIC EWELL (jf, ) (Entered: 04/15/2015)
2015-04-20	25	MOTION for Leave to File Amended Complaint by ERIC EWELL (Attachments: # 1 Text of Proposed Order)(rdj) (Entered: 04/21/2015)
2015-05-07	26	First MOTION for Extension of Time to File Response/Reply as to 25 MOTION for Leave to File an Amended Complaint by UNITED STATES DEPARTMENT OF JUSTICE(Criminal Division), UNITED STATES DEPARTMENT OF JUSTICE(Office of Information Policy) (Haynes, Fred) (Entered: 05/07/2015)
2015-05-12	27	Memorandum in opposition to re 25 MOTION for Leave to File Amended Complaint filed by UNITED STATES DEPARTMENT OF JUSTICE(Criminal Division), UNITED STATES DEPARTMENT OF JUSTICE(Office of Information Policy). (Attachments: # 1 Exhibit A - Order in Spears)(Haynes, Fred) (Entered: 05/12/2015)
2016-01-26	28	MEMORANDUM OPINION AND ORDER: The Justice Department's motion for summary judgment 12 is GRANTED. Ewell's motion for an extension of time in which to move for leave to amend his complaint 24 is GRANTED nunc pro tunc, and the motion is deemed timely filed. The Justice Department's motion for an extension of time in which to file its opposition to Ewell's motion 26 is also hereby GRANTED nunc pro tunc, and the Department's opposition is deemed timely filed. Ewell's motion for leave to amend his complaint 25 is DENIED. See Memorandum Opinion and Order for details. Signed by Judge Randolph D. Moss on 1/26/2016. (lcrdm2, ) (Entered: 01/26/2016)
2016-01-27	29	CLERK'S JUDGMENT in favor of DEFENDANTS against PLAINTIFF. Signed by Kristin Thompson on 1/27/2016. (kt) (Entered: 01/27/2016)
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