Case Detail

FOIA Project Annotation: A federal court in New York has ruled that while the Department of Justice has shown that some records related to the monitoring of Volkswagen's compliance with the 2018 plea agreement for falsifying its vehicle mileage provided to the EPA are protected under Exemption 4 (commercial and confidential) and Exemption 5 (privileges) because its current exemptions claims are too broad, the court will need to conduct an in camera review to assess their validity. New York Times reporter John Ewing requested records concerning DOJ's supervision of VW's compliance with the plea agreement. Ewing narrowed his request to a single report and associated appendices produced by the independent monitor tasked with overseeing VW's compliance with the plea agreement. DOJ initially withheld the report entirely under Exemption 7(A) (interference with ongoing investigation or proceeding), but by the time Judge Katherine Polk Failla ruled Exemption 7(A) had become inapplicable and the agency relied on Exemption 4 and Exemption 5 for the bulk of its claims. Ewing argued that the agency had failed to show that the records were commercial for purposes of Exemption 4. The agency cited two D.C. Circuit district court decisions �" Public Citizen v. Dept of Health and Human Services, 975 F. Supp. 2d 81 (D.D.C. 2013) and 100Reporters v. Dept of Justice, 248 F. Supp. 3d 115 (D.D.C. 2017) �" which held that records of compliance monitors could be considered commercial for purposes of Exemption 4 coverage �" to support its position that Exemption 4 covered the records. After reviewing those cases, Failla noted that "these courts have determined that information about or related to a compliance program is subject to exemption only when it is intertwined with other information that can fairly be described as commercial." She pointed out that the two decisions instead "suggest the parties must provide more detail to support their assertions. In both cases, the court required the government to provide additional evidence to substantiate vague or insufficient claims that information about a company's compliance program was so intertwined with commercial information that it merited withholding under Exemption 4." She indicated that "nor have Defendant and Intervenor sufficiently pointed to other commercial information that warrants large-scale withholding under Exemption 4." She then found that where DOJ and VW had justified data that was commercial, it fell within the parameters of Exemption 4. She also found that DOJ had not sufficiently justified the claims under the foreseeable harm standard. Turning to Exemption 5, Ewing argued that the consultant corollary had not been accepted by the Second Circuit. However, Failla found that the Supreme Court's decision in Klamath applied. She noted that "the Monitor did not act beyond the typical role as articulated in Klamath. Nor was the Monitor 'communicating with the Government in their own interest or on behalf of any person or group whose interests might be affected by the Government action.'" Nevertheless, Failla indicated that she would review both the Exemption 4 and Exemption 5 claims in camera.
Issues: Exemption 5 - Consultant privilege, Exemption 4 - Confidential business information

FOIA Project Annotation: A federal court in New York has ruled that the Department of Justice properly withheld records concerning the report of the independent monitor tasked with overseeing VW's compliance with a plea agreement that it entered into with the Justice Department following the discovery of VW's scheme to evade emissions requirements under Exemption 5 (privileges), but that the agency has not justified withholding records under Exemption 4 (commercial and confidential). New York Times reporter John Ewing requested non-exempt portions of the report. The agency withheld large portions of the report under Exemption 4 and Exemption 5. In her first ruling in the case, Judge Katherine Failla concluded that the exemption claims were appropriate but overbroad. She ordered the report produced for an in camera review. After completing the review, Failla found that most of the Exemption 5 claims were appropriate. She noted that "the Court has no difficulty finding that the Monitor's recommendations and observations have been properly redacted pursuant to the deliberative process privilege. This information reflects the Monitor's analysis of VW's compliance and remediation efforts in response to the emissions scandal and was offered to assist Defendant in determining whether VW was complying with the terms of the plea agreement." She then indicated that "the Monitor's description of his interviews and meetings, as well as his review of VW's policies, present closer calls under the privilege. In contrast with the Monitor's recommendations and observations, this information largely consists of facts relating to the steps VW has taken to address the emissions scandal. While these descriptions are more properly categorized as factual than deliberative, the Court's in camera review has confirmed that certain of these materials have been selectively culled by the Monitor. . ." She noted that "in this context, the facts related to VW's compliance and remediation efforts included in the Report reflect the Monitor's assessment of the information that supported his observations and recommendations and that was relevant to Defendant's evaluation of VW's compliance with the plea agreement." After finding much of the deliberative process claims appropriate, Failla nevertheless explained that other sections were more factual in nature and were required to be disclosed. As to the Exemption 4 claims, Failla pointed out that "the Court finds that Defendant has improperly withheld from disclosure certain non-commercial information under the guise of Exemption 4. For example, Defendant has redacted under Exemption 4 the Monitor's discussion of whether VW was meetings its obligations under the plea agreement; information related to VW's internal investigations into the emission scandal; and other similarly non-commercial information. This information does not constitute confidential business information, and must be produced to the extent that it is not exempt under the deliberative process privilege. . ."
Issues: Exemption 5 - Privileges, Exemption 4 - Confidential business information

Date Filed	Doc #	Docket Text
2019-02-14	1	COMPLAINT against United States Department of Justice. (Filing Fee $ 400.00, Receipt Number ANYSDC-16351935)Document filed by The New York Times Company, John T. Ewing, Jr..(McCraw, David) (Entered: 02/14/2019)
2019-02-14	2	CIVIL COVER SHEET filed. (McCraw, David) (Entered: 02/14/2019)
2019-02-14	3	REQUEST FOR ISSUANCE OF SUMMONS as to United States Department of Justice, re: 1 Complaint. Document filed by John T. Ewing, Jr., The New York Times Company. (McCraw, David) (Entered: 02/14/2019)
2019-02-14	4	RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Other Affiliate Blackrock, Inc. for The New York Times Company. Document filed by The New York Times Company.(McCraw, David) (Entered: 02/14/2019)
2019-02-15		CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Katherine Polk Failla. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php . (pc) (Entered: 02/15/2019)
2019-02-15		Magistrate Judge Sarah Netburn is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php . (pc) (Entered: 02/15/2019)
2019-02-15		Case Designated ECF. (pc) (Entered: 02/15/2019)
2019-02-15	5	ELECTRONIC SUMMONS ISSUED as to United States Department of Justice. (pc) (Entered: 02/15/2019)
2019-02-26	6	NOTICE OF INITIAL PRETRIAL CONFERENCE: Initial Conference set for 5/28/2019 at 03:00 PM in Courtroom 618, 40 Centre Street, New York, NY 10007 before Judge Katherine Polk Failla. (Signed by Judge Katherine Polk Failla on 2/26/2019) (rro) (Entered: 02/26/2019)
2019-03-25	7	ANSWER to 1 Complaint. Document filed by United States Department of Justice.(Kochevar, Steven) (Entered: 03/25/2019)
2019-05-16		NOTICE REGARDING INITIAL PRETRIAL CONFERENCE: An Initial Pretrial Conference is currently scheduled for May 28, 2019. Please note that since the conference was scheduled, the Court has changed its individual rules, and would like to bring the following paragraph to the parties' attention: The Court schedules initial pretrial conferences with the expectation that one or more of the parties would like an in-person opportunity to bring matters to the Court's attention, and it welcomes that opportunity. However, the Court recognizes that in certain circumstances as, for example, where the parties are in agreement about the proposed discovery schedule and have no issues to raise with the Court such conferences may represent less-efficient uses of the parties' time and resources. If the parties agree on a schedule that calls for the close of all discovery within six months, and have no other issues to raise with the Court, the parties can, if they wish, submit a Proposed Civil Case Management Plan and Scheduling Order and request in their joint letter that the initial pretrial conference be cancelled. The Court will ordinarily grant such requests. (tn) (Entered: 05/16/2019)
2019-05-22	8	JOINT LETTER addressed to Judge Katherine Polk Failla from David E. McCraw dated 05/22/2019 re: Pre-Conference Letter. Document filed by John T. Ewing, Jr., The New York Times Company.(McCraw, David) (Entered: 05/22/2019)
2019-05-23	9	MEMO ENDORSEMENT on re: 8 Letter filed by The New York Times Company, John T. Ewing, Jr. ENDORSEMENT: Application GRANTED. The parties are directed to file a status letter on or before August 9, 2019. The Initial Pretrial Conference is hereby ADJOURNED to Tuesday, August 13, 2019, at 4:30 p.m. SO ORDERED. (Initial Conference set for 8/13/2019 at 04:30 PM before Judge Katherine Polk Failla.) (Signed by Judge Katherine Polk Failla on 5/23/2019) (rro) (Entered: 05/23/2019)
2019-08-09	10	JOINT LETTER addressed to Judge Katherine Polk Failla from Steven J. Kochevar dated August 9, 2019 re: Status Letter. Document filed by United States Department of Justice.(Kochevar, Steven) (Entered: 08/09/2019)
2019-08-12	11	MEMO ENDORSEMENT on re: 10 Letter filed by United States Department of Justice, ENDORSEMENT: Application GRANTED. The Court adopts the parties' briefing schedule concerning the anticipated cross-motions for summary judgment. The initial pre-trial conference currently scheduled for August 13, 2019, is hereby ADJOURNED sine die. (Cross Motions due by 10/4/2019., Motions due by 9/6/2019., Responses due by 10/18/2019, Replies due by 11/1/2019.) (Signed by Judge Katherine Polk Failla on 8/9/2019) (rro) (Entered: 08/12/2019)
2019-08-30	12	LETTER MOTION for Extension of Time addressed to Judge Katherine Polk Failla from Steven J. Kochevar dated August 30, 2019. Document filed by United States Department of Justice.(Kochevar, Steven) (Entered: 08/30/2019)
2019-09-03	13	ORDER granting 12 Letter Motion for Extension of Time. Application GRANTED. SO ORDERED. (Signed by Judge Katherine Polk Failla on 9/3/2019) (anc) (Entered: 09/03/2019)
2019-09-03		Set/Reset Deadlines: Cross Motions due by 10/18/2019. Motions due by 9/20/2019. Responses due by 11/1/2019. Replies due by 11/15/2019. (anc) (Entered: 09/03/2019)
2019-09-16	14	SECOND LETTER MOTION for Extension of Time addressed to Judge Katherine Polk Failla from Steven J. Kochevar dated September 16, 2019. Document filed by United States Department of Justice.(Kochevar, Steven) (Entered: 09/16/2019)
2019-09-16	15	ORDER granting 14 Letter Motion for Extension of Time. Application GRANTED. The Court adopts the proposed amended briefing schedule concerning the anticipated cross-motions for summary judgment. SO ORDERED. (Cross Motions due by 11/15/2019. Motions due by 10/18/2019.) (Signed by Judge Katherine Polk Failla on 9/16/19) (yv) (Entered: 09/17/2019)
2019-09-16		Set/Reset Deadlines: Responses due by 11/29/2019. Replies due by 12/13/2019. (yv) (Entered: 09/17/2019)
2019-09-24	16	MOTION to Intervene Unopposed . Document filed by Volkswagen AG.(Giuffra, Robert) (Entered: 09/24/2019)
2019-09-24	17	MEMORANDUM OF LAW in Support re: 16 MOTION to Intervene Unopposed . . Document filed by Volkswagen AG. (Giuffra, Robert) (Entered: 09/24/2019)
2019-09-24	18	DECLARATION of Suhana S. Han in Support re: 16 MOTION to Intervene Unopposed .. Document filed by Volkswagen AG. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Han, Suhana) (Entered: 09/24/2019)
2019-09-24	19	PROPOSED ORDER. Document filed by Volkswagen AG. Related Document Number: 16 . (Giuffra, Robert) Proposed Order to be reviewed by Clerk's Office staff. (Entered: 09/24/2019)
2019-09-24	20	RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Corporate Parent Porsche Automobil Holding SE for Volkswagen AG. Document filed by Volkswagen AG.(Giuffra, Robert) (Entered: 09/24/2019)
2019-09-24	21	ANSWER to 1 Complaint. Document filed by Volkswagen AG.(Giuffra, Robert) (Entered: 09/24/2019)
2019-09-24	22	NOTICE OF APPEARANCE by Robert Joseph Giuffra, Jr on behalf of Volkswagen AG. (Giuffra, Robert) (Entered: 09/24/2019)
2019-09-24	23	NOTICE OF APPEARANCE by Suhana S. Han on behalf of Volkswagen AG. (Han, Suhana) (Entered: 09/24/2019)
2019-09-24	24	NOTICE OF APPEARANCE by Andrew John Finn on behalf of Volkswagen AG. (Finn, Andrew) (Entered: 09/24/2019)
2019-09-25		***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. 19 Proposed Order was reviewed and approved as to form. (km) (Entered: 09/25/2019)
2019-09-25	25	ORDER granting 16 Motion to Intervene. For these reasons, Volkswagen's unopposed motion to intervene is GRANTED. (Signed by Judge Katherine Polk Failla on 9/25/2019) (ne) (Entered: 09/25/2019)
2019-10-18	26	MOTION for Summary Judgment . Document filed by United States Department of Justice.(Kochevar, Steven) (Entered: 10/18/2019)
2019-10-18	27	MEMORANDUM OF LAW in Support re: 26 MOTION for Summary Judgment . . Document filed by United States Department of Justice. (Kochevar, Steven) (Entered: 10/18/2019)
2019-10-18	28	DECLARATION of Jennifer L. Blackwell in Support re: 26 MOTION for Summary Judgment .. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit 1 - Rule 11 Plea Agreement)(Kochevar, Steven) (Entered: 10/18/2019)
2019-10-18	29	DECLARATION of Michael A. Sullivan in Support re: 26 MOTION for Summary Judgment .. Document filed by United States Department of Justice. (Kochevar, Steven) (Entered: 10/18/2019)
2019-10-21	30	MOTION for Summary Judgment . Document filed by Volkswagen AG. (Attachments: # 1 Local Rule 56.1 Statement, # 2 ECF Rule 23.5 Statement, # 3 Exhibit 1 to ECF Rule 23.5 Statement)(Giuffra, Robert) (Entered: 10/21/2019)
2019-10-21	31	MEMORANDUM OF LAW in Support re: 30 MOTION for Summary Judgment . . Document filed by Volkswagen AG. (Giuffra, Robert) (Entered: 10/21/2019)
2019-10-21	32	DECLARATION of Suhana S. Han in Support re: 30 MOTION for Summary Judgment .. Document filed by Volkswagen AG. (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)(Han, Suhana) (Entered: 10/21/2019)
2019-11-06	33	NOTICE OF APPEARANCE by Alexandra Perloff-Giles on behalf of John T. Ewing, Jr., The New York Times Company. (Perloff-Giles, Alexandra) (Entered: 11/06/2019)
2019-11-15	34	CROSS MOTION for Summary Judgment . Document filed by John T. Ewing, Jr., The New York Times Company. Responses due by 11/29/2019(McCraw, David) (Entered: 11/15/2019)
2019-11-15	35	DECLARATION of David E. McCraw in Support re: 34 CROSS MOTION for Summary Judgment .. Document filed by John T. Ewing, Jr., The New York Times Company. (McCraw, David) (Entered: 11/15/2019)
2019-11-15	36	MEMORANDUM OF LAW in Support re: 34 CROSS MOTION for Summary Judgment . . Document filed by John T. Ewing, Jr., The New York Times Company. (McCraw, David) (Entered: 11/15/2019)
2019-11-20	37	THIRD LETTER MOTION for Extension of Time addressed to Judge Katherine Polk Failla from Steven J. Kochevar dated November 20, 2019. Document filed by United States Department of Justice.(Kochevar, Steven) (Entered: 11/20/2019)
2019-11-20	38	ORDER granting 37 Letter Motion for Extension of Time. APPLICATION GRANTED. SO ORDERED. (Signed by Judge Katherine Polk Failla on 11/20/2019) (kv) (Entered: 11/20/2019)
2019-11-20		Set/Reset Deadlines: Responses due by 12/6/2019 Replies due by 12/20/2019. (kv) (Entered: 11/20/2019)
2019-11-20	39	FIRST LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge Katherine Polk Failla from Suhana S. Han dated November 20, 2019. Document filed by Volkswagen AG.(Han, Suhana) (Entered: 11/20/2019)
2019-11-21	40	ORDER granting 39 Letter Motion for Extension of Time to File Response/Reply. Application GRANTED. SO ORDERED. (Signed by Judge Katherine Polk Failla on 11/20/2019) (rro) (Entered: 11/21/2019)
2019-11-21		Set/Reset Deadlines: Responses due by 12/6/2019 Replies due by 12/20/2019. (rro) Modified on 11/21/2019 (rro). (Entered: 11/21/2019)
2019-12-06	41	REPLY MEMORANDUM OF LAW in Support re: 30 MOTION for Summary Judgment . And Opposition to Plaintiffs' CROSS MOTION for Summary Judgment . Document filed by Volkswagen AG. (Giuffra, Robert) (Entered: 12/06/2019)
2019-12-06	42	REPLY MEMORANDUM OF LAW in Support re: 26 MOTION for Summary Judgment . and in Opposition to Plaintiffs' Cross-Motion for Summary Judgment . Document filed by United States Department of Justice. (Kochevar, Steven) (Entered: 12/06/2019)
2019-12-19	43	REPLY MEMORANDUM OF LAW in Support re: 34 CROSS MOTION for Summary Judgment . . Document filed by John T. Ewing, Jr., The New York Times Company. (McCraw, David) (Entered: 12/19/2019)
2020-01-06	44	LETTER addressed to Judge Katherine Polk Failla from David McCraw dated January 6, 2020 re: The New York Times Company et al. v. U.S. Department of Justice, No. 19-cv-01424 - Notice of Supplemental Authority. Document filed by John T. Ewing, Jr., The New York Times Company.(McCraw, David) (Entered: 01/06/2020)
2020-04-13	45	LETTER addressed to Judge Katherine Polk Failla from David McCraw dated April 13, 2020 re: The New York Times Company et al. v. U.S. Department of Justice, No. 19-cv-01424. Document filed by John T. Ewing, Jr., The New York Times Company..(McCraw, David) (Entered: 04/13/2020)
2020-09-24	46	ORDER: According to the Declaration of Jennifer L. Blackwell in Support of Defendant's Motion for Summary Judgment (Dkt. #28), the independent monitorship at issue in this litigation was scheduled to terminate on September 14, 2020. (Id. at Paragraph 31). The Court understands that the monitorship has in fact ended. The parties are hereby ORDERED to file letters on or by September 25, 2020, (i) confirming whether the monitorship has terminated, and, if so, (ii) stating whether and to what extent they believe the termination of the monitorship alters the viability of withholding the Report at issue in this litigation under 5 U.S.C. § 522(b)(7)(A). SO ORDERED. (Signed by Judge Katherine Polk Failla on 9/24/2020) (ama) (Entered: 09/24/2020)
2020-09-24	47	LETTER MOTION for Extension of Time addressed to Judge Katherine Polk Failla from AUSA Steven J. Kochevar dated September 24, 2020. Document filed by United States Department of Justice..(Kochevar, Steven) (Entered: 09/24/2020)
2020-09-24	48	ORDER granting 47 Letter Motion for Extension of Time. The Court is in receipt of Defendant's letter dated September 24, 2020 (Dkt. #47), requesting an extension of time for the parties to to submit supplemental letters addressing recent developments in the instant litigation. Defendant's request is GRANTED. The parties shall submit the letters requested by the Court at docket entry 46 on or by October 2, 2020. Because the Court anticipates that the parties' submissions may impact the parties' pending cross-motions for summary judgment or require additional supplemental briefing, this case is hereby STAYED until the Court resolves issues raised by recent developments in this case or upon further order of the Court. (Signed by Judge Katherine Polk Failla on 9/24/2020) (rro) (Entered: 09/24/2020)
2020-09-24		Case Stayed (rro) (Entered: 09/24/2020)
2020-10-02	49	LETTER addressed to Judge Katherine Polk Failla from AUSA Steven J. Kochevar dated October 2, 2020 re: The Court's September 24, 2020 Order (ECF No. 46). Document filed by United States Department of Justice..(Kochevar, Steven) (Entered: 10/02/2020)
2020-10-02	50	LETTER addressed to Judge Katherine Polk Failla from Robert J. Giuffra, Jr. dated October 2, 2020 re: September 24, 2020 Order. Document filed by Volkswagen AG..(Finn, Andrew) (Entered: 10/02/2020)
2020-10-02	51	LETTER addressed to Judge Katherine Polk Failla from David McCraw dated October 2, 2020 re: September 24, 2020 Order. Document filed by John T. Ewing, Jr., The New York Times Company..(McCraw, David) (Entered: 10/02/2020)
2020-10-02	52	MEMO ENDORSEMENT on re: 51 Letter. ENDORSEMENT: The Court is in receipt of the parties' submissions regarding the continued applicability of FOIA Exemption 7(A) to portions of the Monitor's Report withheld by Defendant. (Dkt. #49-51). The Court takes note that Defendant no longer asserts withholding pursuant to Exemption 7(A) due to the termination of the monitorship, but asserts that the entirety of the withheld portions of the Report may still be properly withheld pursuant to FOIA Exemptions 4, 5, 6, and 7(C). (Dkt. #49). The Court is under the impression that there is no dispute over Defendant's assertion of Exemptions 6 and 7(C). (See Dkt. 36 at 8 n.3). Defendant's request to provide supplemental submissions on the applicability of Exemptions 4 and 5 is GRANTED. Defendant shall file supplemental papers on or by October 16, 2020 and Plaintiff shall file a response on or by October 30, 2020. Because Intervenor did not address Exemption 7(A) in any depth in its briefing on the parties' cross-motions for summary judgment (see Dkt. #30-32, 41), Intervenor shall not file any supplemental papers at this time. (Signed by Judge Katherine Polk Failla on 10/2/2020) (jwh) (Entered: 10/02/2020)
2020-10-14	53	LETTER MOTION for Extension of Time to Submit Supplemental Summary Judgment Papers addressed to Judge Katherine Polk Failla from AUSA Steven J. Kochevar dated October 14, 2020. Document filed by United States Department of Justice..(Kochevar, Steven) (Entered: 10/14/2020)
2020-10-14	54	ORDER granting 53 Letter Motion for Extension of Time. Application GRANTED. SO ORDERED. (Signed by Judge Katherine Polk Failla on 10/14/2020) (rro) (Entered: 10/14/2020)
2020-10-29	55	SECOND LETTER MOTION for Extension of Time to Submit Supplemental Summary Judgment Papers addressed to Judge Katherine Polk Failla from AUSA Steven J. Kochevar dated October 29, 2020. Document filed by United States Department of Justice..(Kochevar, Steven) (Entered: 10/29/2020)
2020-10-29	56	ORDER granting 55 Letter Motion for Extension of Time. Application GRANTED, with the understanding that no further extensions will be granted. (Signed by Judge Katherine Polk Failla on 10/29/2020) (rro) (Entered: 10/29/2020)
2020-12-04	57	SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 26 MOTION for Summary Judgment . and in Opposition to Plaintiffs' Cross-Motion for Summary Judgment . Document filed by United States Department of Justice..(Kochevar, Steven) (Entered: 12/04/2020)
2020-12-04	58	DECLARATION of Jennifer L. Blackwell in Support re: 26 MOTION for Summary Judgment .. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit A - Redacted Report - Part 1, # 2 Exhibit A - Redacted Report - Part 2, # 3 Exhibit A - Redacted Report - Part 3, # 4 Exhibit A - Redacted Report - Part 4, # 5 Exhibit A - Redacted Report - Part 5).(Kochevar, Steven) (Entered: 12/04/2020)
2020-12-18	59	SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 34 CROSS MOTION for Summary Judgment . . Document filed by John T. Ewing, Jr., The New York Times Company..(McCraw, David) (Entered: 12/18/2020)
2021-02-03	60	OPINION AND ORDER re: 26 MOTION for Summary Judgment filed by United States Department of Justice, 30 MOTION for Summary Judgment filed by Volkswagen AG, 34 CROSS MOTION for Summary Judgment filed by The New York Times Company, John T. Ewing, Jr.. For the reasons stated in this Opinion, Defendant's motion for summary judgment is DENIED, Intervenor's motion for summary judgment is DENIED, and Plaintiffs' cross-motion for summary judgment is also DENIED. Defendant is directed to produce a copy of the Report and an accompanying legend for in camera review within 30 days of the date of this Order. The Clerk of Court is directed to terminate the motions pending at docket entries 26, 30, and 34. (Signed by Judge Katherine Polk Failla on 2/3/2021) (nb) (Entered: 02/03/2021)
2021-02-03	61	NOTICE OF APPEARANCE by Anthony Jan-Huan Sun on behalf of United States Department of Justice..(Sun, Anthony) (Entered: 02/03/2021)
2021-02-11	62	LETTER MOTION to Substitute Attorney. Old Attorney: AUSA Steven J. Kochevar, New Attorney: AUSA Anthony J. Sun addressed to Judge Katherine Polk Failla from AUSA Steven J. Kochevar dated February 11, 2021. Document filed by United States Department of Justice..(Kochevar, Steven) (Entered: 02/11/2021)
2021-02-12	63	ORDER granting 62 Letter Motion to Substitute Attorney. Application GRANTED. Attorney Steven John Kochevar terminated. (Signed by Judge Katherine Polk Failla on 2/12/2021) (nb) (Entered: 02/12/2021)
2021-03-05	64	LETTER addressed to Judge Katherine Polk Failla from AUSA Anthony J. Sun dated 3/5/2021 re: in camera submission. Document filed by United States Department of Justice..(Sun, Anthony) (Entered: 03/05/2021)
2021-12-07	65	MOTION for Alexandra Perloff-Giles to Withdraw as Attorney . Document filed by John T. Ewing, Jr., The New York Times Company..(Perloff-Giles, Alexandra) (Entered: 12/07/2021)
2021-12-08	66	MEMO ENDORSED ORDER granting 65 Motion to Withdraw as Attorney. ENDORSEMENT: Application GRANTED. The Clerk of Court is directed to terminate the pendingmotion at docket entry 65. SO ORDERED. Attorney Alexandra Perloff-Giles terminated. (Signed by Judge Katherine Polk Failla on 12/8/2021) (mml) (Entered: 12/08/2021)
2022-05-13	67	LETTER addressed to Judge Katherine Polk Failla from David McCraw dated May 13, 2022 re: in camera review. Document filed by John T. Ewing, Jr., The New York Times Company..(McCraw, David) (Entered: 05/13/2022)
2022-06-27	68	OPINION AND ORDER: For the foregoing reasons, Defendant is hereby ORDERED to produce a version of the Report that is consistent with this Opinion and Order on or before July 13, 2022. The parties are further ORDERED to submit a joint letter stating whether there are any outstanding issues in this case on or before July 20, 2022. SO ORDERED. (Signed by Judge Katherine Polk Failla on 6/27/2022) (rro) (Entered: 06/27/2022)
2022-07-05	69	CONSENT LETTER MOTION for Extension of Time to produce Report addressed to Judge Katherine Polk Failla from AUSA Anthony J. Sun dated 7/5/2022. Document filed by United States Department of Justice..(Sun, Anthony) (Entered: 07/05/2022)
2022-07-06	70	ORDER granting 69 Letter Motion for Extension of Time. Application GRANTED. Defendants shall have until September 2, 2022, by which to produce a version of the Report consistent with the Court's June 27, 2022 Order. Further, Plaintiffs may file a motion for fees within 30 days after all parties have exhausted their rights to appeal. Finally, the parties are directed to file a joint status letter on or before September 9, 2022. The Clerk of Court is directed to terminate the pending motion at docket entry 69. SO ORDERED. (Signed by Judge Katherine Polk Failla on 7/6/2022) (tg) Modified on 7/6/2022 (tg). (Entered: 07/06/2022)
2022-09-09	71	JOINT LETTER addressed to Judge Katherine Polk Failla from David McCraw dated 09/09/2022 re: Status Report. Document filed by John T. Ewing, Jr., The New York Times Company..(McCraw, David) (Entered: 09/09/2022)
2022-09-13	72	MEMO ENDORSEMENT on re: 71 Letter filed by The New York Times Company, John T. Ewing, Jr. ENDORSEMENT: Application DENIED without prejudice to renewal. On June 27, 2022, the Court issued an Opinion and Order ("Order") directing the Government to produce the Report at issue consistent with its ruling by July 13, 2022. (Dkt. #68). It was the Court's understanding that the Order was its final decision in this matter. This understanding was corroborated by the Government's letter of July 5, 2022, consented to by the Plaintiffs, and subsequently endorsed by the Court. (Dkt. #70). In that letter, the Government requested an extension of time to produce the Report, from July 13, 2022, to September 2, 2022, in order to "permit the Solicitor General of the United States to consider whether to authorize appeal of the Order[.]" (Id. at 1). The Government required extension of the time to produce the Report because, under 28 U.S.C. § 2107(b) and Federal Rule of Appellate Procedure 4(a)(1)(B), the time to appeal in a case in which one of the parties is a government agency is 60 days. (Id.). Thus, producing the Report on July 13, 2022, would have rendered meaningless the Government's (indeed, the parties') August 26, 2022 deadline to appeal the Order, and would have compromised its process for internal consultation. (Id. at 2). The Court granted the Government's request on July 6, 2022. (Id. at 3). Plaintiffs consented to the Government's requested extension of time to produce the Report while the Government considered whether to appeal the Order. (Dkt. #70 at 1). Accordingly, the Court assumed that Plaintiffs understood that they had the same 60-day period to consider whether to appeal. The Court welcomes a response from Plaintiffs addressing the Court's understanding of the procedural history by September 20, 2022. (Signed by Judge Katherine Polk Failla on 9/13/2022) (rro) (Entered: 09/13/2022)
2022-09-20	73	LETTER addressed to Judge Katherine Polk Failla from David E. McCraw dated September 20, 2022 re: Follow-Up to Consent Letter Motion Filed Sep. 9, 2022. Document filed by The New York Times Company..(McCraw, David) (Entered: 09/20/2022)
2022-09-22	74	MEMO ENDORSEMENT on re: 73 Letter filed by The New York Times Company. ENDORSEMENT: The Court is in receipt of the above letter response by The Times. At the outset, the Court agrees with The Times that it should have been clearer about how it saw this case unfolding, and should have added additional detail regarding its position to the July 5, 2022 joint letter. (Dkt. #69). As the Court noted on September 13, 2022, it believes that the July 5, 2022 joint letter reflected the parties' understanding that the Court had adjudicated all remaining issues in this case and had entered judgment. (Dkt. #72). Again, the Government was of this view, given that it requested additional time to produce the redacted Report while it weighed whether to appeal the June 27, 2022 Order. (See Dkt. #69 at 2 ("The Government's time to file a notice of appeal expires on August 26, 2022.")). Because the July 5, 2022 joint letter was consented to in full by all parties, the Court had no reason to believe that The Times would adopt its current view that final judgment had not been entered. (Id. at 1). Nevertheless, the Court understands The Times's position that actual production of the Report with redactions may have informed its decision with regard to an appeal. And it is cognizant of the fact that the Federal Rules of Civil Procedure are to be "construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1. Thus, in the interests of justice, the Court will direct the Clerk of Court to enter a judgment in this case. Accordingly, the Clerk of Court is directed to enter final judgment in this case, for the reasons stated in the Court's Opinion and Order dated February 3, 2021 (Dkt. #60), and its Opinion and Order dated June 27, 2022 (Dkt. #68). SO ORDERED. (Signed by Judge Katherine Polk Failla on 9/22/2022) (tg) Transmission to Orders and Judgments Clerk for processing. Modified on 9/28/2022 (tg). (Entered: 09/22/2022)
2022-09-27	75	CLERK'S JUDGMENT re: 74 Memo Endorsement in favor of The New York Times Company, United States Department of Justice, Volkswagen AG, John T. Ewing, Jr. against The New York Times Company, United States Department of Justice, Volkswagen AG, John T. Ewing, Jr. It is, ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated February 3, 2021 (Doc. #60), and its Opinion and Order dated June 27, 2022 (Doc. #68), Defendant's motion for summary judgment is DENIED, Intervenor's motion for summary judgment is DENIED, and Plaintiffs' cross-motion for summary judgment is also DENIED. Defendant shall produce a version of the Report that is consistent with the Opinion and Order dated June 27, 2022. (Signed by Clerk of Court Ruby Krajick on 9/27/2022) (Attachments: # 1 Right to Appeal) (km) (Entered: 09/27/2022)
2022-09-28	76	FILING ERROR - NO ORDER/JUDGMENT SELECTED FOR APPEAL - NOTICE OF APPEAL. Document filed by John T. Ewing, Jr., The New York Times Company. Filing fee $ 505.00, receipt number ANYSDC-26742768. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit..(McCraw, David) Modified on 9/28/2022 (nd). (Entered: 09/28/2022)
2022-09-28		***NOTICE TO ATTORNEY REGARDING DEFICIENT APPEAL. Notice to attorney David McCraw to RE-FILE Document No. 76 Notice of Appeal,.. The filing is deficient for the following reason(s): the judgment being appealed was not selected;. Re-file the appeal using the event type Notice of Appeal found under the event list Appeal Documents - attach the correct signed PDF - select the correct named filer/filers - select the correct order/judgment being appealed. (nd) (Entered: 09/28/2022)
2022-09-28	77	NOTICE OF APPEAL from 75 Clerk's Judgment,,,. Document filed by John T. Ewing, Jr., The New York Times Company. Filing fee $ 505.00, receipt number ANYSDC-26746153. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit..(McCraw, David) Modified on 9/28/2022 (nd). (Entered: 09/28/2022)
2022-09-28		Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 77 Notice of Appeal,..(nd) (Entered: 09/28/2022)
2022-09-28		Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 77 Notice of Appeal, filed by The New York Times Company, John T. Ewing, Jr. were transmitted to the U.S. Court of Appeals..(nd) (Entered: 09/28/2022)
2024-04-03	78	JOINT LETTER MOTION for Extension of Time for fee motion addressed to Judge Katherine Polk Failla from AUSA Anthony J. Sun dated 4/3/2024. Document filed by United States Department of Justice..(Sun, Anthony) (Entered: 04/03/2024)
2024-04-04	79	FILING ERROR - DEFICIENT DOCKET ENTRY - FILER ERROR -(SEE #80) NOTICE OF APPEARANCE by David Edward McCraw on behalf of John T. Ewing, Jr., The New York Times Company..(McCraw, David) Modified on 4/4/2024 (kj). (Entered: 04/04/2024)
2024-04-04	80	NOTICE OF APPEARANCE by Al-Amyn Shiraz Sumar on behalf of John T. Ewing, Jr., The New York Times Company..(Sumar, Al-Amyn) (Entered: 04/04/2024)
2024-04-04	81	ORDER granting 78 Letter Motion for Extension of Time. Application GRANTED. Any fee motion shall be filed on or before June 5, 2024. The parties shall file a status report on or before May 22, 2024, advising the Court of their progress on the fees issue. SO ORDERED. Motions due by 6/5/2024.. (Signed by Judge Katherine Polk Failla on 4/4/2024) (jca) (Entered: 04/04/2024)
2024-05-06	82	MANDATE of USCA (Certified Copy) as to 77 Notice of Appeal, filed by The New York Times Company, John T. Ewing, Jr. USCA Case Number 22-2232-cv. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 5/6/2024.(km) (Entered: 05/06/2024)
2024-05-06		Transmission of USCA Mandate/Order to the District Judge re: 82 USCA Mandate.(km) (Entered: 05/06/2024)
2024-05-15	83	LETTER MOTION for Extension of Time addressed to Judge Katherine Polk Failla from AUSA Anthony J. Sun dated 5/15/2024. Document filed by United States Department of Justice..(Sun, Anthony) (Entered: 05/15/2024)
2024-05-15	84	ORDER granting 83 Letter Motion for Extension of Time. Application GRANTED. Any fee motion shall be filed on or before June 19, 2024. The parties shall file a status report on or before June 12, 2024, advising the Court of their progress on the fees issue. The Clerk of Court is directed to terminate the pending motion at docket entry 83. SO ORDERED. Motions due by 6/19/2024.. (Signed by Judge Katherine Polk Failla on 5/15/2024) (jca) (Entered: 05/15/2024)
2024-06-12	85	STATUS REPORT. Document filed by United States Department of Justice..(Sun, Anthony) (Entered: 06/12/2024)
2024-06-13	86	MEMO ENDORSEMENT on re: 85 Status Report filed by United States Department of Justice, ENDORSEMENT: Application GRANTED. Any fee motion shall be filed on or before July 19, 2024. The parties shall file a status report on or before July 12, 2024, advising the Court of their progress on the fees issue. SO ORDERED (Signed by Judge Katherine Polk Failla on 6/13/2024) ( Motions due by 7/19/2024.) (ks) (Entered: 06/13/2024)
2024-07-12	87	STATUS REPORT. Document filed by United States Department of Justice..(Sun, Anthony) (Entered: 07/12/2024)
2024-07-15	88	MEMO ENDORSEMENT on re: 87 Status Report filed by United States Department of Justice. ENDORSEMENT: Application GRANTED. Any fee motion shall be filed on or before August 19, 2024. The parties shall file a status report on or before August 12, 2024, advising the Court of their progress on the fees issue. ( Motions due by 8/19/2024.) (Signed by Judge Katherine Polk Failla on 7/15/2024) (rro) (Entered: 07/15/2024)
2024-08-12	89	PROPOSED STIPULATION AND ORDER. Document filed by United States Department of Justice..(Sun, Anthony) (Entered: 08/12/2024)
2024-08-13	90	STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL: NOW, THEREFORE, it is hereby STIPULATED and AGREED, by and between the Parties, as follows: This action is hereby dismissed with prejudice and without costs or fees other than as provided in paragraph 2 of this Stipulation and Order, provided that the Court shall retain jurisdiction over any issues that may arise relating to the enforcement of this Stipulation and Order. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/13/2024) (sgz) (Entered: 08/13/2024)
2024-08-13		Case Stay Lifted. (sgz) (Entered: 08/13/2024)
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