Case Detail

FOIA Project Annotation: A federal court in California has ruled that the DEA's claims under Exemption 5 (privileges) and Exemption 7 (law enforcement records) are insufficiently detailed to grant summary judgment. As a result, Magistrate Judge Maria-Elena James decided to conduct an in camera review of its Exemption 7(E) (investigative methods and techniques) and Exemption 5 claims. The case involved a request by EFF for records concerning the Hemisphere program, a partnership between AT&T and law enforcement agencies that allows law enforcement agencies to access call detail records and conduct analysis and data mining of those records. The existence of the program had been revealed by the New York Times in 2013 and had prompted requests and subsequent litigation by EPIC as well as EFF. James noted that Judge Emmet Sullivan had issued an opinion in the EPIC litigation in June 2016, but that the litigation was still ongoing and under review. She pointed out, that, in some cases, DEA had applied different exemptions to the same documents at issue in the EFF case and those in the EPIC case. While Sullivan had accepted the agency's attorney-client privilege claims, James found that "the Government is essentially asking the Court to presume that because it uses the world 'subpoenas' and states that attorneys wrote or received emails, these documents therefore reveal attorney-client communications of a confidential nature. Merely reiterating the elements of the privilege, however, does not satisfy the Government's burden of establishing the privilege applies to this document." She rejected the agency's claim that a draft memo from the Office of Chief Counsel was privileged legal advice. Instead, she pointed out that "the Government does not articulate why this information is confidential or contains legal advice. While it asserts that this document contains 'confidential legal advice,' again, this merely states the element without explaining the basis of that confidentiality." Explaining the government's burden to show the applicability of the attorney-client privilege, James indicated that "the Court is not asking the Government to make a herculean effort, merely something beyond regurgitation of the elements." James found the agency's attorney work-product privilege claim inadequate as well. She noted that "the Government merely recites the elements necessary to establish the privilege, but it does not explain why they are met, such as explaining why these particular documents relate to some anticipated litigation." James found the same lack of explanation for the agency's claims of the deliberative process privilege. She noted that "the Government does not explain how the disclosure of these documents would affect its deliberative process by preventing or discouraging DEA employees or affiliates from giving their honest opinions, recommendations, or suggestions on how to develop policy decisions." Turning to Exemption 7, James found the agency had failed to show that AT&T and other providers were promised confidentiality under Exemption 7(D)(confidential sources). The agency had withheld information related to state and local governments, private companies, and other sorts of agencies under Exemption 7(E). Finding the agency's justification insufficient, James observed that "while it is tempting to make assumptions as to why the Government believes such information is protected, the Government ultimately has not provided the Court with enough support to be able to determine on a de novo basis whether the Government properly withheld these documents."
Issues: Exemption 7(E) - Investigative methods or techniques, Exemption 5 - Privileges, Exemption 7(D) - Confidential sources

FOIA Project Annotation: After reviewing 35 documents in camera, a federal magistrate judge in California has ruled that most of the documents are protected by Exemption 7(E) (investigative methods and techniques). The 35 documents were 259 pages of email attachments that constituted the remaining issues from litigation brought by EFF against the Justice Department for records about its Hemisphere program. For those documents that Magistrate Judge Maria-Elena James found were covered by Exemption 7(E), she noted that "these documents not only identified Hemisphere as an investigative technique, but also described information such as the circumstances under which the techniques should be used, how to analyze the information gathered through these techniques, and the current focus of Hemisphere investigations."
Issues: Exemption 7(E) - Investigative methods or techniques

Date Filed	Doc #	Docket Text
2015-07-09	1	COMPLAINT for Injunctive Relief against Department of Justice ( Filing fee $ 400, receipt number 0971-9666529.). Filed byElectronic Frontier Foundation. (Attachments: # 1 Civil Cover Sheet)(Fakhoury, Hanni) (Filed on 7/9/2015) (Entered: 07/09/2015)
2015-07-09	2	Proposed Summons. (Fakhoury, Hanni) (Filed on 7/9/2015) (Entered: 07/09/2015)
2015-07-09	3	Certificate of Interested Entities by Electronic Frontier Foundation (Fakhoury, Hanni) (Filed on 7/9/2015) (Entered: 07/09/2015)
2015-07-09	4	Case assigned to Magistrate Judge Maria-Elena James. Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening. Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (sv, COURT STAFF) (Filed on 7/9/2015) (Entered: 07/09/2015)
2015-07-09	5	Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 10/1/2015. Case Management Conference set for 10/8/2015 10:00 AM. (hdjS, COURT STAFF) (Filed on 7/9/2015) (Entered: 07/10/2015)
2015-07-10	6	Summons Issued as to Department of Justice, U.S. Attorney and U.S. Attorney General (hdjS, COURT STAFF) (Filed on 7/10/2015) (Entered: 07/10/2015)
2015-07-13	7	Summons Issued as to Department of Justice, U.S. Attorney and U.S. Attorney General (hdjS, COURT STAFF) (Filed on 7/13/2015) (Entered: 07/13/2015)
2015-07-13	8	CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Electronic Frontier Foundation.. (Fakhoury, Hanni) (Filed on 7/13/2015) (Entered: 07/13/2015)
2015-07-17	9	SUMMONS Returned Executed (FOIA) by Electronic Frontier Foundation. Department of Justice served on 7/14/2015, answer due 8/13/2015. (Fakhoury, Hanni) (Filed on 7/17/2015) (Entered: 07/17/2015)
2015-08-11	10	ANSWER to Complaint byDepartment of Justice. (Scharf, James) (Filed on 8/11/2015) (Entered: 08/11/2015)
2015-08-11	11	CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Department of Justice.. (Scharf, James) (Filed on 8/11/2015) (Entered: 08/11/2015)
2015-09-17	12	ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options by Party and Counsel (Fakhoury, Hanni) (Filed on 9/17/2015) (Entered: 09/17/2015)
2015-09-17	13	NOTICE of need for ADR Phone Conference (ADR L.R. 3-5 d) (Fakhoury, Hanni) (Filed on 9/17/2015) (Entered: 09/17/2015)
2015-09-17	14	ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Scharf, James) (Filed on 9/17/2015) (Entered: 09/17/2015)
2015-09-23	15	ADR Clerk's Notice Setting ADR Phone Conference on Monday, October 5, 2015 at 2:00 PM Pacific time.. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (af, COURT STAFF) (Filed on 9/23/2015) (Entered: 09/23/2015)
2015-09-29	16	JOINT CASE MANAGEMENT STATEMENT filed by Department of Justice. (Scharf, James) (Filed on 9/29/2015) (Entered: 09/29/2015)
2015-09-29	17	CASE MANAGEMENT ORDER: Defendant's Summary Judgment Motion due by 2/18/2016 Plaintiff's Cross Motion due by 3/17/2016 Motion Hearing set for 5/5/2016 Signed by Judge Maria-Elena James on 9/29/2015. (cdnS, COURT STAFF) (Filed on 9/29/2015) (Entered: 09/29/2015)
2015-10-01		ADR Remark: In light of the case management conference order issued on September 29, 2015, 17 the ADR phone conference that was scheduled on 10/5/2015 at 2:00 PM is off calendar. (af, COURT STAFF) (Filed on 10/1/2015) (Entered: 10/01/2015)
2015-10-28	18	NOTICE of Change In Counsel by Hanni Meena Fakhoury (Fakhoury, Hanni) (Filed on 10/28/2015) (Entered: 10/28/2015)
2016-02-18	19	MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT filed by Department of Justice. Motion Hearing set for 5/5/2016 10:00 AM before Magistrate Judge Maria-Elena James. Responses due by 3/17/2016. Replies due by 3/24/2016. (Scharf, James) (Filed on 2/18/2016) (Entered: 02/18/2016)
2016-02-18	20	Declaration of JAMES A. SCHARF in Support of 19 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT DECLARATION OF JAMES A. SCHARF IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT filed byDepartment of Justice. (Related document(s) 19 ) (Scharf, James) (Filed on 2/18/2016) (Entered: 02/18/2016)
2016-02-18	21	Declaration of KATHERINE L. MYRICK in Support of 19 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT filed byDepartment of Justice. (Attachments: # 1 Exhibit EXHIBITS "A" TO "N")(Related document(s) 19 ) (Scharf, James) (Filed on 2/18/2016) (Entered: 02/18/2016)
2016-02-18	22	EXHIBITS re 21 Declaration in Support, 19 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT EXHIBIT "O" TO DECLARATION OF KATHERINE L. MYRICK IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT filed byDepartment of Justice. (Related document(s) 21 , 19 ) (Scharf, James) (Filed on 2/18/2016) (Entered: 02/18/2016)
2016-03-17	23	Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed by Electronic Frontier Foundation. Motion Hearing set for 5/5/2016 10:00 AM in Courtroom B, 15th Floor, San Francisco before Magistrate Judge Maria-Elena James. Responses due by 4/7/2016. Replies due by 4/21/2016. (Attachments: # 1 Declaration of Jennifer Lynch, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Proposed Order)(Lynch, Jennifer) (Filed on 3/17/2016) (Entered: 03/17/2016)
2016-03-29	24	ORDER Continuing Hearing on Motions 19 Defendant's Motion for Summary Judgment, 23 Plaintiff's Cross Motion for Summary Judgment: Motion Hearing set for 5/19/2016 10:00 AM before Magistrate Judge Maria-Elena James. Signed by Judge Maria-Elena James on 3/29/2016. (cdnS, COURT STAFF) (Filed on 3/29/2016) (Entered: 03/29/2016)
2016-04-07	25	REPLY (re 23 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment ) DEFENDANT'S OPPOSITION TO PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT AND REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT filed byDepartment of Justice. (Scharf, James) (Filed on 4/7/2016) (Entered: 04/07/2016)
2016-04-07	26	Declaration of KATHERINE L. MYRICK in Support of 25 Reply to Opposition/Response, filed byDepartment of Justice. (Related document(s) 25 ) (Scharf, James) (Filed on 4/7/2016) (Entered: 04/07/2016)
2016-04-12	27	NOTICE of Substitution of Counsel by Aaron David Mackey (Mackey, Aaron) (Filed on 4/12/2016) (Entered: 04/12/2016)
2016-04-20	28	MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971-10387040.) filed by Electronic Frontier Foundation. (Attachments: # 1 Declaration of Adam Schwartz)(Schwartz, Adam) (Filed on 4/20/2016) (Entered: 04/20/2016)
2016-04-21	29	ORDER by Magistrate Judge Maria-Elena James granting 28 Motion for Pro Hac Vice re Adam D. Schwartz. (rmm2S, COURT STAFF) (Filed on 4/21/2016) (Entered: 04/21/2016)
2016-04-21	30	REPLY (re 23 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment ) filed byElectronic Frontier Foundation. (Mackey, Aaron) (Filed on 4/21/2016) (Entered: 04/21/2016)
2016-05-03	31	REQUEST for Clarification; Joint Response due by 5/11/2016. Signed by Judge Maria-Elena James on 5/3/2016. (mejlc2S, COURT STAFF) (Filed on 5/3/2016) (Entered: 05/03/2016)
2016-05-10	32	RESPONSE to re 31 Order Requesting Clarification by Electronic Frontier Foundation. (Schwartz, Adam) (Filed on 5/10/2016) (Entered: 05/10/2016)
2016-05-17	33	ORDER Vacating Hearing and Ordering Supplemental Briefing; supplemental briefs due by 6/1/2016. Responses due by 6/15/2016. Signed by Judge Maria-Elena James on 5/16/2016. (mejlc2S, COURT STAFF) (Filed on 5/17/2016) (Entered: 05/17/2016)
2016-06-01	34	Supplemental Brief re 33 Terminate Hearings, Set Deadlines, Order DEFENDANT'S SUPPLEMENTAL BRIEF RE HAMDAN V. UNITED STATES DEPARTMENT OF JUSTICE filed byUnited States Department of Justice. (Related document(s) 33 ) (Scharf, James) (Filed on 6/1/2016) (Entered: 06/01/2016)
2016-06-01	35	Declaration of KATHERINE L. MYRICK in Support of 34 Supplemental Brief, 33 Terminate Hearings, Set Deadlines, Order SECOND SUPPLEMENTAL DECLARATION OF KATHERINE L. MYRICK RE HAMDAN V. U.S. DEP'T OF JUSTICE and IN FURTHER SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT filed byUnited States Department of Justice. (Related document(s) 34 , 33 ) (Scharf, James) (Filed on 6/1/2016) (Entered: 06/01/2016)
2016-06-01	36	Supplemental Brief re 33 Terminate Hearings, Set Deadlines, Order filed byElectronic Frontier Foundation. (Related document(s) 33 ) (Schwartz, Adam) (Filed on 6/1/2016) (Entered: 06/01/2016)
2016-06-15	37	Supplemental Brief re 33 Terminate Hearings, Set Deadlines, Order DEFENDANT'S SUPPLEMENTAL REPLY BRIEF RE HAMDAN V. UNITED STATES DEPARTMENT OF JUSTICE filed byUnited States Department of Justice. (Related document(s) 33 ) (Scharf, James) (Filed on 6/15/2016) (Entered: 06/15/2016)
2016-06-15	38	Supplemental Brief re 33 Terminate Hearings, Set Deadlines, Order Plaintiff's Supplemental Reply Brief filed byElectronic Frontier Foundation. (Related document(s) 33 ) (Schwartz, Adam) (Filed on 6/15/2016) (Entered: 06/15/2016)
2016-06-27	39	Statement DEFENDANT'S STATEMENT OF RECENT DECISION by United States Department of Justice. (Scharf, James) (Filed on 6/27/2016) (Entered: 06/27/2016)
2016-09-30	40	ORDER for Supplemental Responses. Responses due by 10/14/2016; Replies due by 10/28/2016. Signed by Judge Maria-Elena James on 9/30/2016. (mejlc2S, COURT STAFF) (Filed on 9/30/2016) (Entered: 09/30/2016)
2016-10-07	41	STIPULATION WITH PROPOSED ORDER re 40 Order, Set Deadlines Stipulation and [Proposed] Order Modifying Order For Supplemental Responses filed by United States Department of Justice. (Scharf, James) (Filed on 10/7/2016) (Entered: 10/07/2016)
2016-10-07	42	Order granting 41 Stipulation. Signed by Maria-Elena James. (mejlc2S, COURT STAFF) (Filed on 10/7/2016) (Entered: 10/07/2016)
2016-10-31	43	Declaration of Katherine L. Myrick in Support of 19 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT and re COURT ORDER for SUPPLEMENTAL RESPONSES 40 filed byUnited States Department of Justice. (Attachments: # 1 Exhibit A - FOIA Request, # 2 Exhibit B - Comparison Chart, # 3 Exhibit C - Vaughn Index)(Related document(s) 19 ) (Scharf, James) (Filed on 10/31/2016) (Entered: 10/31/2016)
2016-11-04	44	Supplemental Brief re 42 Order on Stipulation, 40 Order, Set Deadlines filed byUnited States Department of Justice. (Related document(s) 42 , 40 ) (Scharf, James) (Filed on 11/4/2016) (Entered: 11/04/2016)
2016-11-04	45	Supplemental Brief re 42 Order on Stipulation, 40 Order, Set Deadlines filed byElectronic Frontier Foundation. (Related document(s) 42 , 40 ) (Schwartz, Adam) (Filed on 11/4/2016) (Entered: 11/04/2016)
2016-11-18	46	Supplemental Brief re 45 Supplemental Brief by Plaintiff filed byUnited States Department of Justice. (Related document(s) 45 ) (Scharf, James) (Filed on 11/18/2016) (Entered: 11/18/2016)
2016-11-18	47	Supplemental Brief re 44 Supplemental Brief of Defendant filed byElectronic Frontier Foundation. (Related document(s) 44 ) (Schwartz, Adam) (Filed on 11/18/2016) (Entered: 11/18/2016)
2016-12-22	48	ORDER by Judge Maria-Elena James granting in part and denying in part 19 Motion for Summary Judgment; granting in part and denying in part 23 Motion for Summary Judgment. (mejlc2S, COURT STAFF) (Filed on 12/22/2016) (Entered: 12/22/2016)
2017-01-23	49	NOTICE by United States Department of Justice re 48 Order on Motion for Summary Judgment, Notice of Lodging of Copies of Documents Withheld for In Camera Review (Scharf, James) (Filed on 1/23/2017) (Entered: 01/23/2017)
2017-01-23	50	RESPONSE to re 49 Notice (Other) /Opposition to DOJ Submission and DOJ Request for Reconsideration by Electronic Frontier Foundation. (Mackey, Aaron) (Filed on 1/23/2017) (Entered: 01/23/2017)
2018-07-02	51	Order re: In Camera Review. Signed by Judge Maria-Elena James on 7/2/2018. (cdnS, COURT STAFF) (Filed on 7/2/2018) (Entered: 07/02/2018)
2018-07-11	52	ADMINISTRATIVE MOTION to Permit Defendant to Take 60 Days from the Date of the Order Re: In Camera Review to Comply or Appeal re 51 Order (Unopposed by Plaintiff) with Proposed Order filed by United States Department of Justice. Responses due by 7/16/2018. (Scharf, James) (Filed on 7/11/2018) (Entered: 07/11/2018)
2018-07-11	53	ORDER by Judge Maria-Elena James granting 52 Administrative Motion to Permit Defendant to Take 60 Days from the Date of the Order Re: In Camera Review to Comply or Appeal. (cdnS, COURT STAFF) (Filed on 7/11/2018) (Entered: 07/11/2018)
2018-09-04	54	ORDER REASSIGNING CASE by the Executive Committee. Case reassigned to Magistrate Judge Thomas S Hixson for all further proceedings. Magistrate Judge Maria-Elena James no longer assigned to the case. (mclS, COURT STAFF) (Filed on 9/4/2018) Modified on (Entered: 09/04/2018)
2018-09-12	55	STATUS REPORT (Joint Status Report) by United States Department of Justice. (Scharf, James) (Filed on 9/12/2018) (Entered: 09/12/2018)
2018-09-12	56	STATUS ORDER: The parties shall file a stipulation of dismissal with prejudice or updated joint status report by October 19, 2018. The deadline for filing a motion for fees and costs is STAYED until further order of this Court. Signed by Judge Thomas S. Hixson on 9/12/2018. (cdnS, COURT STAFF) (Filed on 9/12/2018) (Entered: 09/12/2018)
2018-09-28	57	NOTICE by United States Department of Justice of Settlement (Scharf, James) (Filed on 9/28/2018) (Entered: 09/28/2018)
2018-09-28	58	ORDER for parties to file dismissal or updated status report by 11/30/2018. Signed by Judge Thomas S. Hixson on 9/28/2018. (cdnS, COURT STAFF) (Filed on 9/28/2018) (Entered: 09/28/2018)
2018-11-01	59	STIPULATION WITH PROPOSED ORDER of Dismissal with Prejudice filed by Electronic Frontier Foundation. (Schwartz, Adam) (Filed on 11/1/2018) (Entered: 11/01/2018)
2018-11-02	60	ORDER DISMISSING CASE PURSUANT TO STIPULATION RE: ECF NO. 59 . Signed by Judge Thomas S. Hixson on 11/2/2018. (cdnS, COURT STAFF) (Filed on 11/2/2018) (Entered: 11/02/2018)
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