Case
3:09-cv-00421-LRH-VPC Document 42
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DANIEL G. BOGDEN
United States
Attorney
HOLLY A. VANCE
Assistant United States Attorney
100 West Liberty Street, Suite 600
Reno, Nevada 89501
Tel: (775) 784-5438
Fax: (775) 784-5181
UNITED STATES DISTRICT COURT
DISTRICT OF
NEVADA
Case No. 3:09-CV-00421-LRH-VPC
JED MARGOLIN,
Plaintiff,
V.
NATIONAL AERONAUTICS
AND SPACE ADMINISTRATION
Defendant.
OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT
COMES NOW Defendant, National Aeronautics and Space
Administration ("NASA"), by and through its undersigned counsel, and submits
this Opposition and Cross-Motion for Summary Judgment in response to
Plaintiff's Motion for Summary Judgment.
This is a Freedom of Information Act ("FOIA") action in
which Plaintiff appeals NASA's decision to withhold certain information in
response to Plaintiff's FOIA request. The withheld information is protected from
disclosure based on the following FOIA exemptions: Exemption 3 (information
withheld pursuant to federal statute); Exemption 4 (trade secrets, commercial
and financial
information, attorney-client communications and attorney work product);
Exemption 5 (deliberative process information, attorney-client communications
and attorney work product); and Exemption 6 (personnel, medical or "other" files the
disclosure of which would constitute a clearly unwarranted invasion of privacy).
Accordingly, this Court should deny Plaintiff's Motion for Summary
Judgment and grant Defendant's Cross-Motion for Summary Judgment, as
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explained more fully below. This
motion is made pursuant to Federal Rule of Civil Procedure 56 and is
supported by the declaration of Courtney B. Graham.
BACKGROUND
A. June 7, 2003 — Plaintiff's claim for patent infringement against
NASA
On June 7, 2003, Plaintiff
submitted an administrative claim for patent infringement against NASA.
(Graham Dec. ¶ 7; Def. Ex.
B).[1] Plaintiff owned the patents at the time of the
claim, but the
patents were subsequently acquired by Optima Technology Corporation. (Graham Dec. ¶ 7).
An administrative claim for
patent infringement is a claim for money damages for patent infringement
against the federal government. (Graham
Dec. ¶ 8). A
claimant may challenge an agency's final determination on a patent infringement claim
by seeking review in the Court of Federal Claims. 28 U.S.C. § 1498(a). (Graham Dec.¶ 8). A successful
claimant may recover "reasonable and entire compensation" for a patent
infringement. Ibid. (Graham Dec. ¶ 8).
The Commercial and Intellectual Property Law practice group
("CIPL") in the NASA Office of Special Counsel was assigned to review
Plaintiff's patent infringement claim. (Graham Dec. ¶¶
9-11; Def. Ex.
B). The
claim was designated case number I-222. (Graham Dec. ¶
7; Def. Ex.
B). The
CIPL personnel assigned to investigate and review case number I-222 were
CIPL attorneys
Gary Borda, Jan McNutt, Robert
Rotella, Alan Kennedy and CIPL
legal technician Kathy Bayer. (Graham Dec. ¶ 11).
When NASA receives a patent
infringement claim, the assigned CIPL attorneys transmit the claim to NASA field
centers that are likely to have technology or activities related to the
claim. (Graham Dec. ¶ 9). Field center patent attorneys review the
patent infringement claim and investigate the patent infringement allegations.
(Graham Dec. ¶ 9). As part of their
____________________
[1] "Def. Ex. ___ “ refers to "Defendant's Exhibit" and the respective exhibit number. "Graham Dec. ¶____ refers to the declaration of Courtney Graham and the respective paragraph of her declaration.
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investigation, the patent attorneys
interview scientists and engineers who may have knowledge of relevant
technology. (Graham Dec. ¶ 9). The
patent attorneys also review the asserted patents and analyze the activities
and technologies at the NASA field centers to determine whether the patents covers those activities. (Graham Dec, ¶ 9). The patent attorneys summarize the
results of their
review and investigation and provide to the CIPL attorneys a legal opinion about
the patent infringement claim. (Graham Dec. ¶
9). The assigned CIPL attorneys then prepare a consolidated analysis in
consultation with the field center patent attorneys and develop the legal
opinion that supports a final determination on the claim. (Graham Dec. ¶ 10).
Here, the CIPL attorneys communicated extensively with the
patent attorneys from the field centers in reviewing and investigating Plaintiff's
patent infringement claim. (Graham Dec.
¶ 18).
Personnel from the following field centers were assigned to investigate the
patent infringement
claim:
CIPL and
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Dec. ¶
16). Under the circumstances, NASA and Rapid Imaging had a
common interest in defending against Plaintiff's patent infringement
claims. (Graham Dec. ¶ 16).
In reviewing Rapid Imaging's work, NASA communicated with
Michael Abernathy, Benjamin Allison, and Richard Krukar regarding the substance of the claims at
issue in case number I-222. (Graham Dec. ¶ 17). Mr.
Abernathy is the principal of Rapid Imaging, Mr, Allison and Mr. Krukar are Rapid Imaging's legal counsel. (Graham Dec. ¶ 17). As a
result of these
discussions, Rapid Imaging provided NASA with copies of attorney work-product
documents prepared by Mr. Krukar
in anticipation of litigation in response to the patent claims asserted
against Rapid Imaging. (Graham Dec. ¶
17). Rapid Imaging also provided NASA with privileged attorney-client
communications between Rapid Imaging and its attorneys. (Graham Dec. ¶ 17). These
documents were provided by Rapid Imaging to assist NASA's attorneys in determining the agency's
potential liability as a result of the claims of patent infringement
against Rapid Imaging, as a NASA contractor. (Graham Dec. ¶ 17).
On March 19, 2009, NASA
issued a final determination denying Plaintiff's claim for patent
infringement. (Graham Dec. ¶¶ 7, 18; Def. Ex. C.)
B. June
28, 2008 — Plaintiff FOIA’s
request
By e-mail dated June 28,
2008, Plaintiff submitted a FOIA request to NASA, seeking copies of "all documents
related to Administrative Claim of Jed Margolin for Infringement of U.S. Patent
Nos. 5,566,073 and 5,904,724; NASA Case No. I-222." (Graham Dec. ¶
4; Def.
Ex.
A; Complaint Ex. 2). The FOIA
specialist at NASA Headquarters determined that records responsive to the FOIA
request would be found at the CIPL in the NASA Office of Special Counsel.
(Graham Dec. ¶ 6). Accordingly, Plaintiff's FOIA request
was forwarded to that office. (Graham
Dec. ¶ 6).
The CIPL reviewed
Plaintiff's FOIA request and searched its records for responsive documents. On January 21,
2009, the CIPL forwarded a copy of the case file for case number I-222 to
the FOIA specialist. (Graham Dec. ¶
19).
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C. May 14, 2009 —
NASA's response to Plaintiff's FOIA request
On May 14, 2009, the NASA FOIA specialist produced
approximately 63 documents in response to Plaintiff's FOIA request.
(Graham Dec. ¶ 20),[2]
Approximately 227 documents were withheld from disclosure. (Graham Dec. ¶ 20). The NASA
FOIA specialist determined that the withheld documents were protected by Exemption 5 — the
deliberative process privilege. (Graham Dec. ¶ 20; Def. Ex.
D).
D. June 10, 2009
— Plaintiff's administrative appeal
On June 10, 2009, Margolin sought administrative review of
NASA's response to his FOIA request. Specifically, Plaintiff appealed the
following:
NASA's failure to provide a
copy of the March 19, 2009 final determination on case number I-222 in
response to Plaintiff's FOIA request;
NASA's failure to release a
copy of a "patent report" containing evidence related to the validity of
the patent at issue in case number I-222; and
NASA's failure to produce
records between NASA and Rapid Imaging "which provided the synthetic vision
system for the X-38 project."
(Graham Dec. ¶ 21;
Def. Ex. E).
On August 5, 2009, NASA affirmed the agency's response to
Plaintiff's FOIA request. (Graham Dec.
¶ 25; Def. Ex. F). First, NASA determined that
the March 19, 2009 final determination was already in Plaintiff's possession, as
evidenced by Plaintiff's quoting the final determination in his appeal
and including the document as an appendix attached to his appeal. (Graham Dec. ¶ 25; Def. Ex. F). Second, NASA concluded
that the documents relevant to the patent infringement claim were either prepared by NASA
attorneys or developed by NASA employees at the direction of NASA's attorneys in order to
evaluate the claims of patent infringement against NASA. As such, those records
were created in anticipation of litigation and constitute attorney work
product or privileged attorney-client communications exempt from
[2] Those documents were also produced in a November 5, 2009 supplemental response to Plaintiff's FOIA request. (Graham Dec. ¶ 20; Ex. I).
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disclosure under Exemption 5. (Graham Dec. ¶ 25; Def. Ex.
F). Lastly, NASA found that a general request for records exchanged between NASA and
Rapid Imaging relating to the X-38 project exceeded the scope of
Plaintiff's FOIA request. (Graham Dec.
¶ 25; Def. Ex. F).
E. July 31, 2009
— Plaintiff's FOIA lawsuit against NASA
On July 31, 2009, Plaintiff filed suit against NASA,
arguing that the agency wrongfully withheld documents that are responsive
to his FOIA request.
F. November
5, 2009 — NASA's supplemental response to Plaintiff's FOIA request
On August 12, 2009, the CIPL
requested the field center patent attorneys with the
On November 5, 2009, NASA
released approximately 4,000 pages of additional documents to Plaintiff.
(Graham Dec. ¶ 40; Def. Ex.
K). The documents withheld —approximately 1,600 pages — were determined to be protected
based on the following privileges: Exemption 3 (information withheld pursuant to federal
statute); Exemption 4 (trade secrets, commercial and financial information,
attorney-client communications and attorney work product); Exemption 5
(deliberative process information, attorney-client communications and attorney
work product); and Exemption 6 (personnel, medical or "other" files the
disclosure of which would constitute a clearly unwarranted invasion of privacy).
(Graham Dec. ¶¶
31-40; Def.
Ex. K).
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1. The redacted documents
NASA reviewed for segregability all of the documents that
were responsive to Plaintiff's FOIA request. (Graham Dec. ¶¶ 31-32). If releasable and
exempt information appeared in the same document, NASA redacted the
document and released it. (Graham Dec.
¶ 32).
The redacted
documents were marked with the applicable FOIA exemption when redacted. (Graham Dec. ¶ 32).
Redacted information under
Exemption 6 included telephone numbers, street addresses, personal e-mail
addresses and bank account information. (Graham Dec. ¶ 33).
Redacted information
under Exemption 5 included pre-decisional communications exchanged among NASA
attorneys and between NASA attorneys and technical personnel regarding the
review of case number I-222. (Graham Dec.
¶ 33). Those redactions were
withheld under Exemption 5's deliberative process privilege and as attorney-client
communications and attorney work product. (Graham Dec. ¶ 33). Redacted information under Exemption 4 included Optima
Technology Corporation's offers of settlement, specific information regarding
license fees and other financial details relating to the patents asserted
in case number I-222. (Graham Dec. ¶ 34). That
information was
withheld under Exemption 4 as confidential or financial information received
from a person. (Graham Dec. ¶ 34).
2. The documents withheld in
their entirety
NASA also withheld certain documents from disclosure in
their entirety. A contract proposal by Rapid Imaging to NASA under the NASA Small
Business Innovation Research program was withheld under Exemption 3 because two
statutes — 10 U.S.C. § 2305(g) and 41 U.S.C. § 253b(m)(1) — prohibited
disclosure of those documents. (Graham
Dec. ¶
35).
NASA also withheld certain records received from the NASA
field centers under Exemption 5. (Graham Dec. ¶ 36).
Those documents included e-mails among NASA attorneys and technical personnel
discussing case number I-222. As such, they constitute pre-decisional
communications within Exemption 5's deliberative process privilege. (Graham Dec. ¶ 36).
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Moreover, many of those documents were either prepared by
NASA attorneys or developed by NASA employees at the direction of NASA attorneys
in order to evaluate the claims of patent infringement asserted
against NASA in case number I-222. (Graham Dec. ¶ 36). As such, those records were created in anticipation of litigation and they
constitute attorney work product or attorney-client privileged communications exempt from
disclosure under Exemption 5. (Graham
Dec. ¶ 36). Lastly, NASA created claim charts to assist attorneys in
evaluating Plaintiff's patent infringement claim. Those claim charts constitute
attorney work product that is protected under Exemption 5. (Graham Dec. ¶ 36).
NASA also withheld certain agency records under Exemption 4
as confidential commercial or financial information received from Optima
Technology Corporation. (Graham Dec.
¶ 37). Those records include offers of settlement, with specific
financial terms, received from Optima — the owner of the patents asserted in
case number I-222. (Graham Dec.
¶ 37). Examples of those documents are identified at lines 7
through 12 of the index. (Graham Dec. ¶ 37; Ex. I).
Exemption 4 further protects information prepared by Rapid
Imaging's attorneys in anticipation of litigation and attorney-client privileged
communications between Rapid Imaging and its attorneys. (Graham Dec. ¶ 37).
These privileged work product documents and attorney-client communications were
disclosed to NASA by Rapid Imaging to support NASA's review of the agency's potential
liability for patent infringement by Rapid Imaging as a NASA contractor
under case
number I-222. (Graham Dec.
¶ 37). Examples of those documents are identified at lines
221 through 247 of the index. (Graham
Dec. ¶ 39; Ex.
I).
G. January 11,
2010 — NASA provides notice to Rapid Imaging of the FOIA action
NASA advised Rapid Imaging
that a FOIA request for Rapid Imaging information had been received by the
agency and that litigation had been commenced seeking disclosure of the
Rapid Imaging documents. (Graham
Dec. ¶
39). In response to that notice, Rapid Imaging provided a basis for its
objection to NASA's proposed disclosure of those records. (Graham
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Dec. ¶ 39; Ex. J). NASA made a determination
to withhold the Rapid Imaging records as privileged attorney-client
communications and attorney work product under Exemption 4. (Graham Dec. ¶ 36; Ex. J). NASA's notice to Rapid
Imaging and the Rapid Imaging objections are not included with this
motion because they include information sufficient to identify the
withheld documents. (Graham Dec.
¶ 39).
H. NASA's good
faith
In responding to
Plaintiff's FOIA request, NASA did not act in bad faith. (Graham Dec. ¶
41). The NASA Headquarters FOIA Office maintained a significant
backlog of requests in 2008 and 2009. (Graham
Dec. ¶ 41). The NASA Headquarters FOIA Office reported a backlog of
210 FOIA
requests at the end of 2008 and a backlog of 195 FOIA requests at the end of
2009. (Graham
Dec. ¶ 41); see also NASA FOIA Report
for Fiscal Year 2009 at page 17 (Graham Dec. ¶ 41; Ex. L).
ARGUMENT
A.
Standard of review
FOIA represents a balance struck by Congress "between the
right of the public to know and the need of the Government to keep information in
confidence." John
Doe Agency v. John Doe Corp., 493
The agency has the burden
to justify any non-disclosure. Dep't of Justice v. Tax Analysts, 492
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147, 172
(2004).
The government may offer
affidavits to prove that documents are exempt from release.
FOIA cases are typically
resolved on summary judgment. Miscavige v. Internal Revenue Service, 2 F.3d
366, 369 (11th Cir. 1993). Review of FOIA matters is de novo. Dep't of
Justice v. Reporters Comm. for Freedom of the Press, 489
B. Summary
judgment standard
A
party is entitled to summary judgment if the evidence shows that there is no
genuine issue
of material fact and the moving party is entitled to judgment as a matter of
law. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475
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C. Exemption 3
applies — 41 U.S.C. § 253b(m)(1)
and 10 U.S.C. § 2305(g) prohibit the
release of Rapid Imaging's contract
proposal.
Exemption 3 incorporates
into the FOIA certain non-disclosure provisions that are contained in
other federal statutes. 5 U.S.C. § 552(b)(3). Specifically, Exemption 3 allows the
withholding of information prohibited from disclosure by another federal
statute. Ibid.
NASA possesses two copies of a contract proposal made by
Rapid Imaging to NASA under NASA's Small Business Innovation Research
program. (Courtney Dec.¶ 35). Two
federal statutes bar
the release of those documents. The first statute, 41 U.S.C. § 253b(m)(1), provides that a "proposal in the
possession or control of an executive agency may not be made available to any
person under [the FOIA]." The second statute, 10 U.S.C. § 2305(g), prohibits
the disclosure
of contractor proposals unless the proposal was incorporated by reference into
the resulting
contract. A review of the contract documents between NASA and Rapid Imaging
shows that the proposal was not incorporated into the Rapid Imaging contract.
(Graham Dec. ¶ 35). The proposal is thus specifically exempt from
disclosure. (Graham Dec. ¶ 35).
Because two federal
statutes bar the release of the proposal, Exemption 3 applies to protect copies
of that document. Accordingly, NASA is entitled to summary judgment on
that issue.
D. Exemption 4
applies — The records contain commercial or financial information from Optima Technology
Corporation and Rapid Imaging and the information is confidential or privileged.
Exemption 4 applies to
"trade secrets and commercial or financial information obtained from a
person which is privileged or confidential." 5 U.S.C. § 552(b)(4). A three-part test determines the
applicability of this exemption: (1) the document must contain trade secrets or
commercial or
financial information; (2) the document must have been obtained from a person;
and (3) the
document must contain information of a confidential or privileged nature. Miller,
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1. The information is
commercial.
Commercial records are
those that relate to a business or trade. See, e.g., Dow
Jones Co. v. FERC, 219 F.R.D. 167,176 (C.D. Cal. 2002) (information relating
to "business decisions and practices regarding the sale of power, and the operation
and maintenance" of generators); Merit Energy Co. v. U.S. Dep't of the Interior, 180 F.Supp.2d 1184, 1188 (D. Colo. 2001) ("[i]nformation
regarding oil and gas leases, prices, quantities and reserves"), appeal dismissed, NO. 01-1347 (10th Cir. Sept.
4, 2001). Commercial records also include those "pertaining or relating
to or dealing with commerce." Miller,
The withheld information
qualifies as "commercial" under those standards. (Graham Dec. ¶¶ 16-17, 36-38). The documents relate to commerce and
to the business or trade of Optima Technology Corporation and Rapid Imaging.
(Graham Dec. ¶¶ 16-77, 36-38).
2. The information was obtained
from a person.
The term "person" is broadly construed; the term refers to
individuals and a wide range of entities, including corporations, banks, state governments, agencies of foreign governments
and Native
American tribes or nations, who provide information to the government. See, e.g.,
FlightsafetyServs.
v. Dep't of Labor, 326 F. 3 d 607, 611 (5th Cir. 2003) (business
establishments); Lepelletier v. FDIC,
977 F.Supp. 456, 459 (D.D.C. 1997) (banks);
Hustead v.
3. The information is confidential or
privileged.
a. The information is
confidential.
The withheld information is
confidential in nature. Information is confidential for purposes of Exemption 4
if disclosure of the information would (1) impair the government's
ability to obtain necessary information in the future; or (2) cause
substantial harm to the
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competitive position of the person
from whom the information was obtained. National Parks
and Conservation Assn v. Morton, 498 F.2d 765
(D.C.Cir. 1974); Pacific Architects and
Engrs Inc. v. Dept of State, 906 F.2d 1345 (9th Cir.
1990).
Here, if NASA were to
disclose the withheld information, Optima Technology Corporation and Rapid
Imaging would likely refrain from turning over any information to the
agency in the
future for fear that the agency would again release the information. (Graham Dec. ¶
40). Under the circumstances, the government's ability to
obtain necessary information would be impaired. (Graham Dec. ¶ 40).
b. The information is
privileged.
1. Attorney-client privilege
As noted, certain withheld
documents contain direct communications made in confidence from Rapid Imaging to
its legal counsel for the purpose of obtaining legal advice and legal
services. (Graham Dec. ¶¶ 37-38). The withheld documents also consist of
draft documents that embody information communicated in confidence by Rapid
Imaging to its counsel. (Graham
Dec. ¶ 37). Those documents are protected as
attorney-client privileged communications under Exemption 4. See Admiral Ins. Co. v. United States District Court, 881
F.2d 1486, 1492 (9th Cir. 1989) (describing elements of attorney-client privilege);
Miller, Anderson, 499 F.Supp. at 771 (holding that legal memorandum
prepared for utility company by its attorney qualified as legal advice
protectible under Exemption 4 as
subject to attorney-client privilege).
Work product privilege
The withheld records also include documents prepared in
anticipation of litigation. (Graham Dec. ¶¶
17, 36-38).
The work product doctrine recognizes that it is essential that a lawyer work with a certain
degree of privacy — free from unnecessary intrusion by opposing parties
and their counsel. Proper preparation of a client's case demands that he
assemble information,
sift what he considers to be the relevant facts, prepare his legal theories and
plan his strategy without undue and needless interference. See Hickman v. Taylor, 329
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(1947) (protecting witness statements taken by counsel
"with an eye toward litigation" after a claim had arisen but before litigation
had begun); Upjohn Co v. United States, 449 U.S. 383
(1981) (holding that work-product doctrine applied to information gathered by
in-house counsel long before any legal proceedings were threatened). The
work-product doctrine applies to materials prepared by a non-lawyer representative as well
as to materials prepared by a party itself Admiral, 881 F.2d at 1494; see
also Fed. R. Civ. Pr. 26(b)(3). Documents prepared by Rapid Imaging's counsel in
anticipation of litigation are thus protected by Exemption 4. See Indian Law Res. Ctr. v. Dept of Interior, 477
F.Supp. 144, 148 (D. D. C. 1979) ("The vouchers reveal strategies
developed by Hopi counsel in anticipation of
preventing or preparing for legal action to safeguard tribal
interests. Such communications are entitled to protection as attorney
work product.").
3. Common Interest
privilege
While it is generally true
that privileged information loses its privilege when disclosed to a third party,
the privilege is maintained when
that third party shares a common interest in a legal matter. See Waller v. Financial Corp. America, 828 F.2d 579,
583 (9th Cir. 1987) ("Under the joint defense privilege, 'communications by a
client to his own lawyer remain privileged when the lawyer subsequently shares
them with co-defendants for purposes of a common defense."'); Center for Biological Diversity v. Office of Mgmt. and Budget, 2009 WL 1246690
(N.D.Cal.) ("Courts have extended the
attorney-client privilege to multiple parties who share a common interest in a
legal matter."). Documents shared under these circumstances are exempt from
disclosure under Exemption 4. Miller, Anderson
at 771.
Rapid Imaging provided the
withheld documents to NASA in connection with their common interest of
defending against patent infringement claims. (Graham Dec. ¶¶ 16-17). All attorney-client
communications and work-product information shared by Rapid Imaging relating
to these
claims is thus protected by the common interest privilege. As a result, the
documents are exempt from disclosure under Exemption 4.
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E. Exemption 5
applies — The information is
protected by the deliberative process, work-product and attorney-client
privileges.
The deliberative process
privilege of Exemption 5 is designed to "prevent injury to the quality of
agency decisions." NLRB v. Sears, Roebuck & Co., 421
Exemption 5 is commonly understood to include documents
subject to the attorney-client privilege and attorney work-product doctrine.
NLRB, 421
Here, Exemption 5 protects
drafts of NASA's response to Plaintiff's patent infringement claim and drafts of letters
prepared by NASA attorneys. See Donham v. U. Forest Service, 2008 WL 2157167 at 5 (S.D.
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communications among attorneys" where IRS
personnel and attorneys were involved in bankruptcy proceedings against
requester); Judicial Watch, Inc. v. Dep't oj'Commerce, 337 F. Supp.
2d 146, 174
(D.D.C. 2004) (applying privilege to documents written by agency
attorneys to
superiors describing advice given to clients within agency). The exemption
further protects claims charts that NASA created to assist attorneys in
evaluating Plaintiff's patent infringement claim. (Graham Dec. ¶ 36).[3]
Lastly, Exemption 5 protects
attorney-client communications between Rapid Imaging and its attorneys and the work
product of Rapid Imaging's. attorneys. (Graham Dec. ¶¶ 25, 36). Those documents were
provided to NASA to assist the agency in defending against Plaintiff's
patent infringement claim. (Graham Dec. ¶¶ 16-17). Because NASA
and Rapid Imaging shared a common interest in defending against Plaintiff's patent
infringement claims, the documents are protected under the common
interest privilege. (Graham Dec. ¶ 16).[4]
F. Exemption 6 applies — The information is contained in
personnel, medical or "similar" files the disclosure of which would constitute a
clearly unwarranted invasion of privacy.
Exemption 6 protects
information in personnel, medical and "similar" files when the disclosure of such
information "'would constitute a clearly unwarranted invasion of personal
privacy." 5 U.S.C. § 552(b)(6). To warrant protection under Exemption 6,
information must first meet the threshold requirement of being located in
personnel, medical or "similar" files.
[3]
Plaintiff argues that documents created after 2004 are post-decisional.
Plaintiff is mistaken. The patent infringement claim was denied on March
19, 2009. (Graham Dec. ¶ 7). Thus, that is the determinative date for
post-decisional documents.
[4]
Plaintiff's reliance on Dep't of Interior and Bureau
of Indian Affairs v. Klamath Water Users Protective Ass'n, 532
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Nat'l Assn of Retired
Fed. Employees v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989). If no privacy interest is found,
further analysis is unnecessary and the information at issue must be
disclosed. Ibid.
If a privacy interest is found to exist, the public
interest in disclosure, if any, must be weighed against the privacy
interest in non-disclosure. See Associated Press v. DOD,
554 F.3d 274, 291 (2d Cir. 2009) ("Only where a privacy interest is
implicated does the public interest for which the information will serve become
relevant and require a balancing of the competing interests."); NARA v. Favish, 541 U.S. 157, 171 (2004) ("The term
'unwarranted' requires us to balance the family's privacy interest against the public
interest in disclosure."). If no public interest exists, the information must be
protected because "something, even a modest privacy interest, outweighs nothing
every time[.]" Nat'l Assn of Retired
Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989).
Here, NASA redacted identifying private information such as
names, addresses and social security numbers contained within the
documents. (Graham Dec. ¶¶ 32-33). Plaintiff has not identified any public
interest that would justify disclosing that personal information.
Accordingly, NASA is entitled to summary judgment on that issue,
G. NASA released
all reasonably segregable
information to Plaintiff.
NASA reviewed each requested document individually for
segregability of non-exempt
information. (Graham Dec. ¶¶ 31-34). The agency then released all segregable non-exempt information to
Plaintiff. (Graham Dec. ¶¶ 31-34). The declaration addressing the issue of
segregability is entitled to substantial
weight and a presumption of good faith. See Minier, 88 F.3d at 800. The level of detail
provided throughout the index further confirms that NASA carefully reviewed the
requested documents and considered the possibility of redacting rather
than withholding. In sum, both the declaration and the index included
with this motion demonstrate that all reasonably segregable non-exempt information has been disclosed
to Plaintiff. Under the circumstances, NASA is entitled to summary
judgment.
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CONCLUSION
For the reasons argued above, this Court should enter an
order granting summary judgment in favor of NASA.[5]
Respectfully submitted,
DANIEL G. BOGDEN
United States Attorney
/s/ Holly
A. Vance
HOLLY A. VANCE
Assistant
[5] Plaintiff also appears to argue for an award of attorney fees and costs. Any such request is premature. Accordingly, Defendant will respond to such a request at the conclusion of this case if and when Plaintiff files a motion seeking fees and costs.
Case 3:09-cv-00421-LRH-VPC Document 42
Filed 09/07/10
Page 19 of 19
CERTIFICATE
OF SERVICE
Case
No. 3:09-CV-00421-LRH-VPC
JED MARGOLIN,
Plaintiff,
V.
NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION.
Defendant.
The undersigned hereby
certifies that service of the foregoing "OPPOSITION TO
MOTION FOR SUMMARY
JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT" has been made by
electronic notification through the Court's electronic filing system or, as
appropriate, by sending a copy by first-class mail to the following addressee(s)
on September 7, 2010:
Addressee:
JED MARGOLIN
1981 Empire Road
Reno, NV 89521-7430
/s/
Holly A. Vance