Case Detail

FOIA Project Annotation: A federal court in California has ruled that FEMA has not shown why the Ecological Rights Foundation should be required to return three documents inadvertently released to the Foundation as part of the agency's response to its FOIA request. The Foundation requested records from FEMA concerning whether it believed it was required to determine if actions taken under its National Flood Insurance Plan might violate the Endangered Species Act. The agency disclosed 417 pages in full or in part. Six months later, the agency decided that it had inadvertently disclosed several privileged documents and asked the court to require the Foundation to destroy them and not rely on their contents. Finding several cases in which courts had exercised their discretion to require requesters to return documents, Magistrate Judge Donna Ryu agreed that such relief was within her discretion. However, she concluded that FEMA had not shown that two letters and an email chain were protected under Exemption 5 (deliberative process privilege). One letter was from the National Marine Fisheries Service, while the other was FEMA's response. Ryu noted that NMFS claimed FEMA was required to comply with Section 7(a)(2) of the Endangered Species Act, while FEMA argued that it was not obligated to comply. She explained that "this does not appear to be predecisional because the letters convey each agency's official policy to the other agency." She added that "defendant does not explain how the NMFS and FEMA letters reflect the 'give-and-take' of the consultative process or reflect FEMA's decisionmaking process in a way that would undermine the agency." Ryu then found the email chain did not qualify for the deliberative process privilege either. However, FEMA also claimed the email chain qualified for protection under the attorney-client privilege, since it constituted legal advice from the agency's Office of Chief Counsel. Ryu found that seven emails qualified as attorney-client material, but concluded the agency had waived the privilege, observing that "in the absence of any information at all about Defendant's efforts to identify and protect privileged material, Defendant has not demonstrated that it took reasonable steps in order to prevent inadvertent disclosure."
Issues: Exemption 5 - Privileges - Attorney-client privilege, Exemption 5 - Privileges - Attorney work-product privilege, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2015-09-05	1	COMPLAINT for Declaratory and Injunctive Relief against Federal Emergency Management Agency ( Filing fee $ 400, receipt number 0971-9814937.). Filed byEcological Rights Foundation. (Attachments: # 1 Civil Cover Sheet)(Sproul, Christopher) (Filed on 9/5/2015) (Entered: 09/05/2015)
2015-09-05	2	Proposed Summons. (Sproul, Christopher) (Filed on 9/5/2015) (Entered: 09/05/2015)
2015-09-08	3	Case assigned to Magistrate Judge Donna M. Ryu. 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. (ha, COURT STAFF) (Filed on 9/8/2015) (Entered: 09/08/2015)
2015-09-08	4	Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 12/2/2015. Case Management Conference set for 12/9/2015 01:30 PM. (vlkS, COURT STAFF) (Filed on 9/8/2015) (Entered: 09/08/2015)
2015-09-08	5	Summons Issued as to Federal Emergency Management Agency. (vlkS, COURT STAFF) (Filed on 9/8/2015) (Entered: 09/08/2015)
2015-09-11	6	CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Ecological Rights Foundation.. (Sproul, Christopher) (Filed on 9/11/2015) (Entered: 09/11/2015)
2015-09-16	7	Certificate of Interested Entities by Ecological Rights Foundation (Sproul, Christopher) (Filed on 9/16/2015) (Entered: 09/16/2015)
2015-10-19	8	Filed in error. See document 10 for corrected attachment. Defendant's ANSWER to Complaint for Declaratory and Injunctive Relief byUSA. (Tseng, Neill) (Filed on 10/19/2015) Modified on 11/12/2015 (vlkS, COURT STAFF). Modified on 11/12/2015 (vlkS, COURT STAFF). (Entered: 10/19/2015)
2015-10-19	9	CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Federal Emergency Management Agency.. (Tseng, Neill) (Filed on 10/19/2015) (Entered: 10/19/2015)
2015-10-19	10	Defendant's ANSWER to Complaint for Declaratory and Injunctive Relief byFederal Emergency Management Agency. (Tseng, Neill) (Filed on 10/19/2015) (Entered: 10/19/2015)
2015-11-18	11	NOTICE of need for ADR Phone Conference (ADR L.R. 3-5 d) (Sproul, Christopher) (Filed on 11/18/2015) (Entered: 11/18/2015)
2015-11-18	12	ADR Clerk's Notice Setting ADR Phone Conference on December 7, 2015 at 3:00 PM Pacific time. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (cmf, COURT STAFF) (Filed on 11/18/2015) (Entered: 11/18/2015)
2015-11-18	13	ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Sproul, Christopher) (Filed on 11/18/2015) (Entered: 11/18/2015)
2015-11-18	14	ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Tseng, Neill) (Filed on 11/18/2015) (Entered: 11/18/2015)
2015-11-23	15	CLERK'S NOTICE. Notice is hereby given to all parties that the Initial Case Management Conference previously set for December 9, 2015 at 01:30 PM has been rescheduled to December 16, 2015 at 01:30 PM before Magistrate Judge Donna M. Ryu in Courtroom 4, 3rd Floor, Oakland. The Joint Case Management Statement is due no later than December 9, 2015. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jebS, COURT STAFF) (Filed on 11/23/2015) Modified on 11/24/2015 (ig, COURT STAFF). (Entered: 11/23/2015)
2015-11-30		ADR Remark: ADR Phone Conference scheduled on 12/7/2015 at 3:00 PM is rescheduled to 12/14/2015 at 10:00 AM. The call-in information remains the same. (cmf, COURT STAFF) (Filed on 11/30/2015) (Entered: 11/30/2015)
2015-12-07	16	CERTIFICATE OF SERVICE by Ecological Rights Foundation (Sproul, Christopher) (Filed on 12/7/2015) (Entered: 12/07/2015)
2015-12-07	17	CERTIFICATE OF SERVICE by Ecological Rights Foundation (Sproul, Christopher) (Filed on 12/7/2015) (Entered: 12/07/2015)
2015-12-07	18	CERTIFICATE OF SERVICE by Ecological Rights Foundation (Sproul, Christopher) (Filed on 12/7/2015) (Entered: 12/07/2015)
2015-12-09	19	JOINT CASE MANAGEMENT STATEMENT & [PROPOSED] ORDER filed by Federal Emergency Management Agency, Ecological Rights Foundation, USA. (Tseng, Neill) (Filed on 12/9/2015) Modified on 12/10/2015 (vlkS, COURT STAFF). (Entered: 12/09/2015)
2015-12-14		ADR Remark: ADR Phone Conference held on 12/7/2015 with Howard Herman. (cmf, COURT STAFF) (Filed on 12/14/2015) (Entered: 12/14/2015)
2015-12-16	20	Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Initial Case Management Conference held on 12/16/2015. CASE REFERRED to Magistrate Judge Laurel Beeler for Settlement Conference to be held within 90 days, or soon thereafter as is convenient to Judge Beeler's calendar. Parties shall file any joint discovery letter re: Plaintiff's entitlement to discovery by no later than 3/16/2015. Updated Joint Case Management Statement due by 3/23/2016. Further Case Management Conference and Hearing on Joint Discovery Letter re:entitlement to discovery (if filed) set for 3/30/2016 01:30 PM.FTR Time 1:42-1:55. Attachment Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 12/16/2015) (Entered: 12/18/2015)
2015-12-21		CASE REFERRED to Magistrate Judge Laurel Beeler for Settlement (ahm, COURT STAFF) (Filed on 12/21/2015) (Entered: 12/21/2015)
2016-01-04	21	NOTICE AND ORDER REGARDING SETTLEMENT CONFERENCE before Magistrate Judge Laurel Beeler. Settlement Conference set for 4/5/2016 at 10:00 AM in Courtroom C, 15th Floor, San Francisco. Signed by Magistrate Judge Laurel Beeler on 1/4/2016. (lsS, COURT STAFF) (Filed on 1/4/2016) (Entered: 01/04/2016)
2016-03-08	22	STIPULATION WITH PROPOSED ORDER Stipulation to Continue Further Case Management Conference filed by Federal Emergency Management Agency. (Tseng, Neill) (Filed on 3/8/2016) (Entered: 03/08/2016)
2016-03-09	23	ORDER by Magistrate Judge Donna M. Ryu granting 22 Stipulation to Continue Further Case Management Conference and Hearing on Joint Discovery Letter (if filed). (ig, COURT STAFF) (Filed on 3/9/2016) (Entered: 03/09/2016)
2016-03-28	24	NOTICE of Appearance by Christopher Windsand Harbor Hudak (Hudak, Christopher) (Filed on 3/28/2016) (Entered: 03/28/2016)
2016-04-05	25	Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement conference held. Parties settled the scope of the disclosures with the caveat that the government will circle back about the drafts in question and the plaintiff will propose a (b)(6) list and process and update the defendant on the clawback issue. The timeline for this is about two weeks, but the parties will make best efforts to do this by the end of next week. The court sets a further telephone call for Thursday, April 21 at 12:30 p.m. Counsel to call chambers on one line at 415-522-4660. (Total Time: 9 Hours) (Not Reported) Plaintiff Attorney: Christopher A. Sproul and Christopher Hudak. Defendant Attorney: Neill T. Tseng. Clients: Annaliese Beaman and Paula Rich. This is a text only Minute Entry. (lsS, COURT STAFF) (Date Filed: 4/5/2016) (Entered: 04/06/2016)
2016-04-21	26	Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held on 4/21/2016. Further settlement call held. Further settlement call set for 5/19/2016 at 12:30 p.m. on the same conference line as today's settlement call. (Total Time: 40 Minutes) (Not Reported) Plaintiff Attorney: Christopher A. Sproul and Christopher Hudak. Defendant Attorney: Neil Tseng. Clients: Annelise Beaman and Paula Rich. This is a text only Minute Entry. (lsS, COURT STAFF) (Date Filed: 4/21/2016) (Entered: 04/21/2016)
2016-04-27	27	JOINT CASE MANAGEMENT STATEMENT Further Joint Case Management Statement With Request to Continue Further Case Management Conference filed by Federal Emergency Management Agency, USA. (Tseng, Neill) (Filed on 4/27/2016) (Entered: 04/27/2016)
2016-04-28	28	CLERK'S NOTICE: Having reviewed the parties' 4/27/2016 joint case management statement, the Court grants the parties' request to continue the Further Case Management Conference. The Further Case Management Conference scheduled for 5/4/2016 01:30 PM is continued to 6/29/2016 01:30 PM. Parties shall file an updated Joint Case Management Statement by 6/22/2016. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Filed on 4/28/2016) (Entered: 04/28/2016)
2016-05-19	29	Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held on 5/19/2016. Further settlement call with the plaintiff's counsel set for 5/20/2016 at 2:00 pm. Counsel to call 415-522-4660. The government counsel should be on standby availability. (Not Reported) Plaintiff Attorney: Christopher A. Sproul and Christopher Hudak. Defendant Attorney: Neil Tseng. Clients: Annelise Beaman and Paula Rich. This is a text only Minute Entry. (lsS, COURT STAFF) (Date Filed: 5/19/2016) (Entered: 05/19/2016)
2016-05-20	30	Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held on 5/20/2016. 2 hours. Case settled subject to contingency of agency approval. The court sets a call for Thursday, June 9, 2016 at 1:00 p.m. just to be sure that the contingency of approval is satisfied. The parties may vacate the call by contacting Courtroom Deputy, Lashanda Scott (415-522-3140) if they do not need the call. (Total Time: 2 Hours) (Not Reported) Plaintiff Attorney: Christopher Sproul and Christopher Hudak. Defendant Attorney: Neil Tseng. This is a text only Minute Entry. (lsS, COURT STAFF) (Date Filed: 5/20/2016) (Entered: 05/23/2016)
2016-05-23		Set/Reset Hearing re 30 Settlement Conference: Telephonic Settlement Conference set for 6/9/2016 at 1:00 P.M. (lsS, COURT STAFF) (Filed on 5/23/2016) (Entered: 05/23/2016)
2016-05-25	31	STIPULATION WITH PROPOSED ORDER re Clawback Dispute filed by USA. (Tseng, Neill) (Filed on 5/25/2016) Modified on 5/26/2016 (vlkS, COURT STAFF). (Entered: 05/25/2016)
2016-05-26	32	Order by Magistrate Judge Donna M. Ryu granting 31 Stipulation re Clawback Dispute as Modified.(dmrlc1, COURT STAFF) (Filed on 5/26/2016) (Entered: 05/26/2016)
2016-06-09	33	CLERK'S NOTICE: Counsel notified the court that the government secured agency approval for the settlement. The court thus vacates the settlement conference set for 1:00 p.m. (This is a text-only entry generated by the court. There is no document associated with this entry.) (lsS, COURT STAFF) (Filed on 6/9/2016) (Entered: 06/09/2016)
2016-06-16	34	Letter from Tseng Joint Letter . (Tseng, Neill) (Filed on 6/16/2016) Modified on 6/29/2016 (dmrlc1, COURT STAFF). (Entered: 06/16/2016)
2016-06-16	35	ADMINISTRATIVE MOTION to File Plaintiff's Exhbits 3-6 With Joint Letter filed by Ecological Rights Foundation. Responses due by 6/20/2016. (Attachments: # 1 Exhibit)(Sproul, Christopher) (Filed on 6/16/2016) Modified on 6/17/2016 (vlkS, COURT STAFF). (Entered: 06/16/2016)
2016-06-17	36	Statement re 35 ADMINISTRATIVE MOTION Defendant's Statement of Nonopposition and Clarification re: Administrative Relief to File Plaintiff's Exhibits 3-6 With Joint Letter by Federal Emergency Management Agency. (Tseng, Neill) (Filed on 6/17/2016) (Entered: 06/17/2016)
2016-06-20	37	Letter from Plaintiffs concerning case scheduling matter . (Sproul, Christopher) (Filed on 6/20/2016) (Entered: 06/20/2016)
2016-06-21	38	CLERK'S NOTICE: In light of Plaintiff's 6/20/2016 letter to the court # 37 , the 6/29/2016 Case Management Conference is VACATED. (This is a text-only entry generated by the court. There is no document associated with this entry.) (dmrlc1, COURT STAFF) (Filed on 6/21/2016) (Entered: 06/21/2016)
2016-07-06	39	STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d 2 filed byEcological Rights Foundation. (Attachments: # 1 Exhibit FOIA Improvement Act)(Sproul, Christopher) (Filed on 7/6/2016) (Entered: 07/06/2016)
2016-07-08	40	STIPULATION WITH PROPOSED ORDER Stipulation Re Partial Settlement and Partial Dismissal with Prejudice; [Proposed] Order filed by Federal Emergency Management Agency. (Tseng, Neill) (Filed on 7/8/2016) (Entered: 07/08/2016)
2016-07-08	41	CLERK'S NOTICE: The court has received the parties' joint discovery letter 34 and finds that the matter is appropriate for resolution without oral argument pursuant to Civil Local Rule 7-1(b). The court will issue a written order on the motion. (This is a text-only entry generated by the court. There is no document associated with this entry.) (dmrlc1, COURT STAFF) (Filed on 7/8/2016) (Entered: 07/08/2016)
2016-07-08	42	Order by Magistrate Judge Donna M. Ryu granting 40 Stipulation re Partial Settlement and Partial Dismissal With Prejudice.(dmrlc1, COURT STAFF) (Filed on 7/8/2016) (Entered: 07/08/2016)
2016-09-19	43	First MOTION to Relate Case 3:16-cv-05254 Ecological Rights Foundation v. Federal Emergency Management Agency filed by Ecological Rights Foundation. (Attachments: # 1 Proposed Order Proposed Order on Plaintiff's Motion to Consider Whether Cases Should Be Related)(Sproul, Christopher) (Filed on 9/19/2016) (Entered: 09/19/2016)
2016-09-30	44	CLERK'S NOTICE: The Court has reviewed the motion and determined that Cases 15-cv-04068-DMR Ecological Rights Foundation v. Federal Emergency Management Agency and 16-cv-05254-MEJ Ecological Rights Foundation v. Federal Emergency Management Agency are NOT related and no reassignment shall occur. (ig, COURT STAFF) (Filed on 9/30/2016) (Entered: 09/30/2016)
2016-11-22	45	ORDER to Submit Supplemental Briefs re 34 Discovery Letter Brief filed by Federal Emergency Management Agency. Signed by Magistrate Judge Donna M. Ryu on 11/22/2016. (dmrlc1, COURT STAFF) (Filed on 11/22/2016) (Entered: 11/22/2016)
2016-12-06	46	Supplemental Brief re 45 Order Defendant's Supplemental Brief filed byFederal Emergency Management Agency. DOCUMENT REMOVED PER 53 Order. (Attachments: # 1 Declaration Of Amy Weinhouse)(Related document(s) 45 ) (Tseng, Neill) (Filed on 12/6/2016) Modified on 12/6/2016 (vlkS, COURT STAFF). Modified on 5/19/2017 (vlkS, COURT STAFF). (Entered: 12/06/2016)
2016-12-06	47	Declaration of Amy Weinhouse in Support of 46 Supplemental Brief, filed byFederal Emergency Management Agency. (Related document(s) 46 ) (Tseng, Neill) (Filed on 12/6/2016) (Entered: 12/06/2016)
2016-12-06	48	ADMINISTRATIVE MOTION to Remove Doc. #46-1 From Public View filed by Federal Emergency Management Agency. Responses due by 12/12/2016. (Tseng, Neill) (Filed on 12/6/2016) Modified on 12/7/2016 (vlkS, COURT STAFF). (Entered: 12/06/2016)
2016-12-06	49	Declaration of Neill T. Tseng in Support of 48 ADMINISTRATIVE MOTION to Remove Doc. #46-1 From Public View filed by Federal Emergency Management Agency. (Related document(s) 48 ) (Tseng, Neill) (Filed on 12/6/2016) Modified on 12/7/2016 (vlkS, COURT STAFF). (Entered: 12/06/2016)
2016-12-06	50	Proposed Order re 48 ADMINISTRATIVE MOTION Defendant's Administrative Motion to Remove Doc. #46-1 From Public View by Federal Emergency Management Agency. (Tseng, Neill) (Filed on 12/6/2016) (Entered: 12/06/2016)
2016-12-13	51	REPLY (re 34 Discovery Letter Brief ) to Defendant's Supplemental Brief filed byEcological Rights Foundation. (Attachments: # 1 Declaration Declaration of Christopher Hudak)(Sproul, Christopher) (Filed on 12/13/2016) (Entered: 12/13/2016)
2017-01-03	52	ORDER by Magistrate Judge Donna M. Ryu denying 34 Defendant's motion for clawback; finding as moot 35 Administrative Motion to supplement the record. (dmrlc1, COURT STAFF) (Filed on 1/3/2017) (Entered: 01/03/2017)
2017-01-03	53	Order by Magistrate Judge Donna M. Ryu granting as unopposed 48 Administrative Motion to Remove Docket #[46-1] from Public View.(dmrlc1, COURT STAFF) (Filed on 1/3/2017) Modified on 1/3/2017 (dmrlc1, COURT STAFF). (Entered: 01/03/2017)
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