DANIEL G

Case 3:09-cv-00421-LRH-VPC Document 52 Filed ll/01/10 Page 1 of 19

DANIEL G. BOGDEN

United States Attorney

HOLLY A. VANCE

Assistant United States Attorney

100 West Liberty Street, Suite 600

Reno, NV 89501

Tel: (775) 784-5438

Fax: (775) 784-5181

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

JED MARGOLIN, Plaintiff,

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,

Defendant Case No. 3:09-CV-00421-LRH-VPC

GOVERNMENT'S REPLY

COMES NOW Defendant National Aeronautics and Space Administration ("Defendant") and submits this Reply in response to Plaintiffs Opposition to Defendant's Cross Motion for Summary Judgment. (#50). This Court should disregard all factual assertions in Plaintiff s opposition because Plaintiff has failed to present any admissible evidence to support those assertions. In addition, Plaintiffs opposition exceeds by 46 pages the 30-page limit set by the local rules of civil procedure. This Court should thus disregard those pages that exceed that page limit. In any event, Exemptions 3, 4, 5 and 6 of the Freedom of Information Act (“FOIA”) protect the withheld documents from disclosure. Accordingly, Defendant's Cross Motion for Summary Judgment should be granted, as explained more fully below.

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ARGUMENT

A. Plaintiffs factual assertions are not supported by admissible evidence and thus this Court should disregard them.

Plaintiff makes numerous factual assertions throughout his 76-page opposition brief (#50) but he offers no declaration or other admissible evidence to support them. See Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002) ("A trial court can only consider admissible evidence in ruling on a motion for summary judgment."). For example, Plaintiff has not authenticated any of the exhibits he includes with his opposition. See Orr, 285 F.3d at 773 ("Authentication is a condition precedent to admissibility.") (internal quotation marks omitted); FRE 802 (setting forth authentication requirement). The exhibits also include hearsay references. See FRE 801 (defining hearsay); FRE 802 (precluding admission of hearsay). Because Plaintiff has failed to offer admissible evidence to support his factual assertions, this Court should disregard them. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986) ("the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment").[1]

B. This Court should disregard those portions of Plaintiffs opposition that exceed the 30-page limit established by the local rules of civil procedure.

Plaintiffs opposition brief is 76 pages long. (#50). But LR 7-4 of the local rules of civil procedure limits an opposition brief to 30 pages:

Unless otherwise ordered by the court, pretrial and post-trial briefs and points and authorities in support of, or in response to, motions shall be limited to thirty (30) pages including the motion but excluding exhibits.

LR 7-4, Because Plaintiffs opposition brief exceeds the 30-page limit, this Court should disregard those pages that exceed the page limit.

[1] In any event, many of Plaintiff s factual assertions address matters that are not material to the issues in this case and thus they are not germane to deciding Defendant's cross motion. See Anderson, 477 U.S. at 247-48 ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted."). For example, the issue of who currently owns the patents (#49 at pp. 4, 18-19) is not relevant to the resolution of this FOIA action, as Plaintiff readily concedes: "This issue [of who owns the patents] is irrelevant to the present case except to promote NASA's agenda for adding more poison to the well." (#49 at p. 20; #32 at 28).

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C. This Court should decline to review the Vaughn index entries that Plaintiff has not addressed in his briefing.

Defendant provided Plaintiff with a 57-page Vaughn index containing 396 entries that describe the withheld documents and explain the basis for non-disclosure. (#46-1, Ex. 1). Plaintiffs opposition, however, does not discuss any of those entries and Plaintiffs reply discusses only nine of those entries: 113, 114, 117, 197, 232, 233, 236, 237 and 247. (#49 at 7-9, 20). This Court should decline to consider any challenge of the 387 index entries that Plaintiff has elected not to address at all in his briefing. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) ("We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim[.] * * * Judges are not like pigs, hunting for truffles buried in briefs."); Entertainment Research Group v. Genesis Creative Group, 122 F.3d 1211 (9th Cir. 1997) (declining to consider claims where party failed to present "a specific, cogent argument for our consideration"). Plaintiffs failure to specifically address the Vaughn index entries constitutes a waiver of his right to challenge them. See James River Ins. Co. v. Hebert Schenk, 523 F.3d 915, 920 (9th Cir. 2008) (refusing to consider issue that was "inadequately presented" and concluding issue to be waived).

D. Courtney Graham has sufficient personal knowledge to testify about the documents at issue.

In a FOIA action, the agency official who provides the declaration in support of the agency's action may demonstrate personal knowledge based on a review of the records in question. See Cucci v. DEA, 871 F. Supp. 5-08, 513 (D.D.C.-1994) (finding that declarant "had the requisite personal knowledge based on her examination of the records and her discussion with a representative of the [state police]" to attest that information was provided with express understanding of confidentiality); Hoffman v. DOJ, No. 98-1733, slip op. at 7 (W.D. Okl. April 16, 1999) (finding personal knowledge requirement was met because declarant was "aware of what was done by virtue of information provided to him in his official capacity").

Here, Defendant offers a supporting declaration from Courtney Graham. (#46-1). Graham was employed with NASA when Plaintiff made his FOIA request and she was assigned to work on Plaintiff s FOIA request as both a staff attorney and supervisor of NASA's Commercial and Intellectual Property Group practice group. (#46-1 ¶ 2; Graham Supp. Dec. ¶¶ 5-8, attached hereto),

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During that time, she also interacted with Rapid Imaging Software concerning Plaintiff s FOIA request. (Graham Supp. Dec. ¶ 7; #46-2, Ex. J). Moreover, her declaration plainly states that her testimony is based on both her personal knowledge of the facts and a review of the records in question. (#46-1 at ¶ 1). It is thus appropriate for her to testify concerning this FOIA action. Contrary to Plaintiffs assertion, Graham did not rely on "what people told her (hearsay)" in submitting her testimony. (#50 at p. 10). But even if she had done so, her declaration would nonetheless withstand scrutiny. See Brophy v. Dep't of Defense, No. 05-360, 2006 WL 571901, at Z (D.D.C. March 8, 2006) (stating that declarations "that contain hearsay in recounting of searches for documents are generally acceptable"). Accordingly, this Court should reject Plaintiffs claim that Graham lacks personal knowledge to testify.

E. Courtney Graham's declaration does not contain legal conclusions.

Plaintiff argues that Graham's testimony should not be given considerable weight because her declaration contains legal conclusions. (#50 at pp. 10-12, 13). Specifically, Plaintiff asserts that the following statements by Graham are legal conclusions that should not be considered by this Court: Defendant denied Plaintiffs patent claim on March 19, 2009 (#50 at p. 56); the patents in question were subsequently acquired by Optima Technology Corporation[2] (#50 at p. 56); Rapid Imaging had a common interest with NASA in defending against patent infringement claims (#50 al p. 60); Plaintiff requested the "Borda letter" from NASA (#50 at p. 65); and certain records contain privileged communications. (#50 at pp. 66-68).

Plaintiffs arguments are unfounded. The Graham declaration gives a factual overview of the case, including when NASA denied Plaintiffs patent claim, to provide context for the arguments in Defendant's brief about the propriety of releasing and withholding certain documents. (#46-1 at 4-18). Graham's factual overview is not the equivalent of a legal argument; the facts she offers merely provide the basis on which Defendant makes its legal arguments. For example, Defendant argues that the common interest doctrine applies based on the factual statement in Graham's

[2] Throughout its filings, Defendant uses "Optima Technology Group" interchangeably with "Optima Technology Communication." (See Graham Supp. Dec. ¶ 9).

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declaration that NASA and Rapid Imaging have a joint interest in defending against patent infringement claims. (#46-1 at ¶¶ 16, 39; #46 at pp. 14, 16). Moreover, Graham's declaration includes an explanation why Defendant released and withheld certain documents. (#46-1 at 19-40). That explanation necessarily includes references to the applicable exemptions to relay as a matter of fact what the agency did and why.

In any event, if this Court construes any of Graham's testimony as the equivalent of legal conclusions, the inclusion of such statements would be harmless error. Defendant has fully briefed the subjects at issue and provided legal authorities to support each of its arguments. Thus, this Court may rely on that briefing and those legal authorities — not any purported legal arguments in Graham's declaration — to reach a decision in this case.

F. 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.

Defendant's cross motion for summary judgment explains that Exemption 3 bars the disclosure of Rapid Imaging's contract proposals based on 41 U.S.C. § 253b(m)(1 ) and 10 U.S.C. § 2305(g). (#46 at 11). Plaintiff cites no authority to refute Defendant's argument (or authorities) or to otherwise establish that Exemption 3 does not apply. Instead, Plaintiff simply requests that this Court conduct an in camera review of the documents in question.[3] (#50 at 13-14). Plaintiffs failure to offer any legal argument or authorities to refute Defendant's arguments entitles Defendant to summary judgment regarding the applicability of Exemption 3. See James River Ins. Co. v. Hebert Schenk, 523 F.3d 915, 920 (9th Cir. 2.008) (refusing to consider an issue that was "inadequately presented" and concluding issue to be waived); Hashim-Tiggs v. Schneiter, 2207 WL 185095 (W.D.Wis. 2007) (court declined to address issues on the ground that they were "inadequately briefed").

Moreover, this Court should decline Plaintiffs request for an in camera review of the documents in question because in camera review is a limited remedy. See Lions Raisins Inc. v. USDA, 354 F.3d 1072, 1082 (9th Cir. 2004) (acknowledging that in camera review is warranted

[3] Plaintiff also requests an in camera review to determine whether the documents are commercial in nature under Exemption 4. (#50 at p. 17).

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"[u]nder certain limited circumstances"). If this Court concludes that the Vaughn index and supporting declaration are somehow deficient, a remand for an amendment of those submissions is the preferred remedy. See Elec. Privacy Info. Ctr. v. OHS, 384 F.Supp. 2d 100, 120 (D.D.C. 2005) (permitting agencies to submit revised Vaughn index to correct inadequacies in original); Santos v. DEA, 357 F. Supp. 2d 33, 37-38 (D.D.C. 2004) (requiring supplemental declaration because initial one failed to provide "sufficient detail" to establish connection between exemptions invoked and documents withheld).

G. 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 bars the release of Optima Technology Corporation's and Rapid Imaging's commercial and financial records because NASA satisfied the four-pronged test for withholding that information:

· The documents are commercial in nature and relate to the business of Optima Technology Corporation and Rapid Imaging;

· Optima Technology Corporation and Rapid Imaging qualify as "persons" for purposes of Exemption 4;

· Disclosure would impair NASA's ability to obtain necessary information from those companies in the future; and

· The documents are confidential and protected by the work product, attorney-client and deliberative process privileges.

(#46 at pp. 11-14; Graham Dec. ¶T 16-17, 36-3 8).

Nonetheless, Plaintiff appears to argue that Exemption 4 does not apply because Defendant previously released commercial and financial information to him, including bank account numbers and Optima Technology Group's offer to settle with NASA. (#50 at p. 17; #49 at pp. 17-18). Again, this Court should disregard all of Plaintiffs factual assertions because he offers no admissible evidence to support them, as explained above. But even if Plaintiffs allegations were supported by admissible evidence, Defendant has acknowledged that it inadvertently released certain protected records in its first production of documents on May 14, 2009. (See Graham Supp. Dec. ¶¶ 11-12, attached herewith). Plaintiff cites no authority that Defendant's inadvertent disclosure of certain documents defeats Exemption 4's application as to other withheld records.

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Plaintiffs claim that Optima Technology Corporation and Rapid Imaging do not qualify as persons for purposes of Exemption 4 is equally unavailing. Plaintiff argues that Defendant "forgot to cite" Citizens United v. Federal Election Commission, 130 S - Ct. 876 (2010) and Santa Clara County v. Southern Pac. R. Co., 118 U.S. 394 (1886). (#50 at pp. 17-18). But neither case addresses Exemption 4's four-pronged test, described above. Thus, the cases are inapposite.

Plaintiff also contends that Defendant has not shown that the documents are confidential because it is purely speculation that Rapid Imaging would refrain from releasing information to Defendant in the future for fear that the agency might release the information. (#50 at p. 18). But Defendant's argument is supported by the declaration of Courtney Graham. (#46-1). Graham was authorized to testify on that subject because she has personal knowledge of that issue based on her dealings with Rapid Imaging and her review of pertinent records. (See Graham Dec. ¶¶ 1, 39-40; Graham Supp. Dec. ¶ 7). Plaintiff has offered no admissible evidence to refute Graham's testimony on that subject.

Plaintiff next alleges that the documents are not confidential because Rapid Imaging "not only turned the information over to NASA willingly, they asked to help NASA." (# 50 at p. 18). In support of that argument, Plaintiff references an e-mail dated June 28, 2004 from Rapid Imaging to NASA that includes the statement, "Let me know how I can help." (#50 at pp. 18-19). Plaintiffs argument misses the point. Rapid Imaging voluntarily released confidential and privileged documents to NASA to help the agency defend against patent infringement claims. (#46-1 ¶ 17). The company would be less likely to do so in the future, however, if Defendant produced the documents in response to Plaintiffs FOIA request.

Plaintiff also disputes Defendant's claim that the attorney-client and work product privileges apply but he cites no authorities to support his position. (#50 at 19). On the contrary, he simply argues that "NASA is trying to sell this Court a stinky old red herring." (#50 at p, 19). Because Plaintiff has inadequately briefed the attorney-client and work-product issues, this Court should grant summary judgment to Defendant on those questions. See James River Ins. Co., 523 F.3d at 920 (refusing to consider an issue that was "inadequately presented" and concluding issue to be

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waived); Hashim-Tiggs, 2007 WL 185095 (court declined to address issues on the ground that they were "inadequately briefed").

Plaintiff next argues that the common interest privilege applies only where the parties have signed a joint defense agreement, they are co-defendants in a lawsuit and they have "turn[ed] on each other." (#50 at p. 22). He cites two cases cited by Defendant — Waller v. Financial Corp. America, 828 F.2d 579, 583 (9th Cir. 1987) and Miller, Anderson, Nash Yerke & Wiener, 499 F.Supp. 767 (D.Or. 1980) — to support that argument. (#50 at pp. 20-30). But neither Waller nor Miller requires that those conditions be satisfied to invoke the common interest privilege. Accordingly, this Court should reject Plaintiffs arguments in that regard. See also Hunton & Williams v. Dept of Justice, 590 F. 3 d 272, 287 (2010} ("The common interest doctrine requires a meeting of the minds, but it does not require that the agreement be reduced to writing or that litigation actually have occurred."). In any event, Graham's declaration states that NASA and Rapid Imaging entered into a contract that makes NASA liable for Rapid Imaging's patent infringement violations, thereby demonstrating a joint interest in defending against such claims. (#46-1 ¶16).

Plaintiff next contends that the common interest privilege does not apply because Defendant has not presented evidence that disclosure would cause substantial harm to the competitive position of the disclosing party. (#50 at 25). But Defendant has not asserted confidentiality on that basis; Defendant argued that the information is confidential only because disclosure would impair the government's ability to obtain necessary information in the future. (#46 at pp. 12-13; #46-1 ¶ 40).

Plaintiff also contends that Defendant's unfiled draft request for ex parte re-examination should be disclosed because "it is not litigation." (#49 at p. 9). Plaintiff cites no legal authority to support that argument. In any event, the Vaughn index (#46-1, Ex. I, entry #247) plainly states that the document reflects the "privileged opinion of [Rapid Imaging] counsel" and thus it is protected by the attorney-client privilege — an issue Plaintiff does not address. The document is also protected by the work product privilege because the document was drafted in anticipation of litigation related to the patent claims. The fact that the re-examination procedure itself might be administrative in nature does not defeat this privilege.

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Lastly, Defendant quoted the following language from Center for Biological Diversity v. Office of Mgmt. and Budget, 2009 WL 1246690 in its opposition and cross motion for summary judgment: "Courts have extended the attorney-client privilege to multiple parties who share a common interest in a legal matter." (#46 at p. 14). Plaintiff could not locate the quoted language and he claims that the case contains no such quotation. (#50 at pp. 22-23). He is mistaken. The quotation is found on page 10 of the decision.

H. Exemption 5 applies - information is protected by the deliberative process, work product and attorney-client privileges.

Exemption 5's deliberative process, work product and attorney-client privileges protect records exchanged among NASA attorneys and their staff in preparing a response to Plaintiffs patent infringement claim. (#46 at pp. 15-16). That response decision issued on March 19, 2009. (#46-1 ¶ 7; Ex. C). Records generated before that date are therefore pre-decisional. See Casad v. HHS, 301 F.3d 1247, 1252 (10th Cir. 2002) (holding that deliberative process privilege protects redacted portions of "summary statements" created before agency's research grant funding decisions). Exemption 5 also protects attorney-client communications between Rapid Imaging and its attorneys and the work product of Rapid Imaging's attorneys because Rapid Imaging provided those documents to assist Defendant in defending against potential patent infringement claims. (#46 at pp. 15-16; #46-1 ¶ 17). Defendant and Rapid Imaging thus shared that common interest, thereby triggering the application of the common interest doctrine. (#46 at pp. 15-16).

Nonetheless, Plaintiff claims that the patent infringement claim was denied on July 12, 2004—not March 19, 2009 — and documents generated before that date — not after — are protected by the deliberative process privilege. In support of that argument, Plaintiff relies on an e-mail from NASA attorney Edward K. Fein to Rapid Imaging attorneys Frank Delgado and Alan Kennedy. That e-mail., dated July 12, 2004, states: "Your effort, together with valuable input from Mike Abernathy, will be the basis for NASA's denying the administrative claim." (#49 at 6-7, 13).

Plaintiffs reliance on that e-mail is misplaced for six reasons. First, the e-mail is hearsay. See FRE 801 (defining hearsay); FRE 804 (precluding admission of hearsay). Second, Plaintiff has not included an affidavit or declaration subscribing that the contents of the e-mail are true under

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penalty of perjury. See Robinson v. Penner, 2008 WL 544912 (E. D.Ca.) ("Motions for summary judgment may be supported by affidavits or declarations sworn to be true under penalty of perjury."); 28 U.S.C. § 1746 (requiring that declaration be subscribed as true under penalty of perjury). Third, even if the e-mail were admissible, Plaintiff has not shown that Fein is the speaking agent for NASA or that he had the legal authority to decide the patent infringement claim. In fact, Gary G. Borda — not Fein — denied the patent claim. (#46, Ex. C. Thus, the e-mail does not establish that the patent infringement claim was denied on July 12, 2004. See Tax Analysts v. IRS, 97 F. Supp. 2d 13, 17 (D.C.C.. 2000) ("Because the drafters lack ultimate [decisionmaking] authority, their views are not necessarily predecisional."); Bouygues Telecom v. Tekelec, 473 F.Supp.2d 692, 695 (E.D.N.C. 2007) (evidence qualifies as admission by party opponent where showing is made that declarant is authorized to speak for party). Fourth, Plaintiff offers no legal authority to support his novel argument that the date of something as informal as an e-mail may be used to substitute for the date of a formal decision. Fifth, even if the document is not protected by Exemption 5's deliberative process privilege, it is protected under the work product and attorney client privileges. Plaintiff admits as much in his briefing:

What did NASA do after the Fein e-mail? They got ready for litigation. NASA and [Rapid Imaging] formed an alleged Common Interest association because they were both afraid of being sued for patent infringement.

(#49 at 7). Sixth, even if NASA knew on July 12, 2004 that it would be denying the claim, subsequent discussions about the reasons for that denial and any draft decisions would still be protected under the attorney-client, work product and deliberative process privileges.

Plaintiff also cites Dept of Interior v. Klamath Water Users, 532 U.S. 1 (2000) to support his claim that Exemption 5 does not apply. In Klamath, the Court ruled that Exemption 5 did not encompass communications between the Department of the Interior and Indian tribes who had given opinions to the Department on certain administrative matters. Id. at 4-6, 16. The Court held that the attorney work-product and deliberative process privileges did not protect records submitted to the agency by the tribes, as "outside consultants." Id. at 16. The Court reached its decision based on two factors: the tribes had "their own, albeit entirely legitimate, interests in mind" and they sought "a Government benefit at the expense of other applicants." Id. at 12 n. 4. Plaintiff argues

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that Klamath requires the release of Rapid Imaging's documents because Rapid Imaging had its own financial interest in helping NASA to defend against charges of patent infringement. (#49 at pp. 10-13; #50 at pp. 71).

Klamath is inapposite for three reasons. First, the case addresses the "consultant corollary" principle of Exemption 5, which Defendant has not asserted in this case. Second, Plaintiff has not shown that Rapid Imaging communicated with NASA with "[its] own, albeit entirely legitimate interests in mind" and that Rapid Imaging sought "a Government benefit at the expense of other applicants." Those two factors were dispositive in Klamath but neither factor is present in this case. Plaintiffs claim that Rapid Imaging had its own financial interest in assisting NASA is insufficient to satisfy the two-part test promulgated in Klamath. Third, Plaintiff s claim that Rapid Imaging had its own financial interest in assisting NASA is not supported by admissible evidence. Thus, Klamath does not apply.

Plaintiff next attempts to distinguish two cases that Defendant cited to establish that Exemption 5 applies to documents created by private third parties when shared with the government to further common legal interests: Hanson v. U.S. Agency for International Development, 372 F.3d 286 (4th Cir. 2004) and Hunton & Williams v. Dept of Justice, 590 F.3d 272 (2010). Plaintiffs attempt to distinguish those cases is unavailing.

In Hanson, the court ruled that Exemption 5 protected an analytical report from an engineer's attorney concerning a construction dispute where the engineer and the government shared a common interest in defending against the dispute. Plaintiff contends that Hanson is inapposite because Abernathy, who is a principal of Rapid Imaging but not an attorney, waived the attorney-client privilege when he released documents to NASA. (#50 at p. 34). As explained previously, however, Plaintiffs factual assertions are not supported by admissible evidence. In contrast, Graham's declaration indicates that Rapid Imaging's attorneys were involved in the decision to release the documents:

In reviewing RIS'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. Mr. Abernathy is the principal of RIS. Mr. Allison and Mr. Krukar are RIS’ outside attorneys. As a result of these discussions, RIS provided NASA with copies of attorney work-product prepared by Mr. Krukar in

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anticipation of litigation in response to the patent claims asserted against RIS and its attorneys. These documents were provided by RIS to assist NASA's attorneys in determining the agency's potential liability as a result of the claims of infringement against RIS, as a NASA contractor.

(#46-1 at ¶ 17). Plaintiff cites no authority to indicate that the common interest privilege does not apply where a client and his attorneys jointly decide to turn documents over to an entity with whom they share a common interest in defending against certain litigation. Nor has Plaintiff presented admissible evidence that Abernathy released documents to NASA unbenownst to his lawyers. Plaintiff's efforts to distinguish Hanson are thus unavailing. Plaintiff also appears to argue that NASA was required to contract with Abernathy for his legal work and pay Abernathy's attorneys (#50 at p. 34) but Hanson imposes no such requirements in order to invoke the common interest doctrine.

As for Hunton, Plaintiff asserts that the case requires "a formal written common interest agreement" to trigger application of the common interest doctrine. (#50 at 43). He further contends that "there is no litigation to intervene in." (#50 at 43). He overlooks that Hunton explicitly rejected both arguments: "The common interest doctrine requires a meeting of the minds, but it does not require that the agreement be reduced to writing or that litigation actually have occurred." Hunton, 590 F.3d at 287.

I. Exemption 6 applies — The information is contained within personnel, medical or "similar" files and would constitute a clearly unwarranted invasion of privacy.

Exemption 6 protects from disclosure personnel, medical or "similar" files the disclosure of which would constitute "a clearly unwarranted invasion of privacy." The term "similar files" is construed broadly to encompass "information which applies to a particular individual." See Dept of State v. Wash. Post Co., 456 U.S. 595, 602 (1982). Moreover, the privacy interest inherent in Exemption 6 "belongs to the individual, not the agency holding the information." Dep't of Justice v. Reporters Comm., 489 U. S. 749, 763-65 (1989).

Here, NASA redacted from its records identifying private information about persons, including their names, addresses and social security numbers. (Graham Dec. ¶¶ 32-33). Such redactions are protected under Exemption 6. See Dept of State v. Wash. Post, 456 U. S. 595, 600 (finding that information "such as place of birth, date of birth, date of marriage, employment

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history, and comparable data is not normally regarded as highly personal, and yet * * * such information * * * would be exempt from any disclosure that would constitute a clearly unwarranted invasion of personal privacy"); Associated Press v. Dept of'Justice, 549 F.3d 62, 65 (2nd Cir. 2008) ("Personal information, including a citizen's name, address, and criminal history, has been found to implicate a privacy interest cognizable under the F01A exemptions.").

Nonetheless, Plaintiff argues that Exemption 6 should not apply because NASA openly posts online the names and addresses of many NASA employees. (#50 at p. 66; #49 at pp. 4, 17). But Plaintiff offers no admissible evidence to support any of his factual assertion, as explained previously. In any event, even if such names and addresses are posted online, Plaintiff offers no authority that such postings would defeat the application of Exemption 6.[4] On the contrary, the case law is clear that private information such as names, addresses and social security numbers are protected from disclosure. Wash. Post, 456 US. at 600; Associated Press, 549 F.3d at 65. Accordingly, this Court should uphold Defendant's decision to withhold this information under Exemption 6.[5]

[4] Nor has Plaintiff presented sufficient evidence to show that the online postings are truly analogous to the release of the private information at issue here. For example, Plaintiff overlooks that the individuals whose names and addresses are posted online may have consented to such postings.

[5] Plaintiff also disputes Defendant's claim that Plaintiff has the burden to show that disclosure of the information in question is in the public interest. (#50 at p. 7). Plaintiff is mistaken. A FOIA requester challenging the application of Exemption 6 has the burden to show that disclosure is in the public interest. See, e.g., Salas v. Office of the Inspector General, 577 F. Supp.2d 105, 112 (D.C.C. 2008); Rogers v. Davis, 2009 WL 213034 (E.D.Mo.); Associated Press v. DOJ, 549 F.3d 62 (2"d Cir. 2008). In any event, Plaintiff has not argued that a public interest applies. Thus, this Court need not conduct a balancing of private versus public interests.

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CONCLUSION

For the reasons explained above, this Court should grant Defendant's Motion for Summary Judgment. If this Court determines that the Vaughn index and supporting declaration are somehow deficient, this Court should remand the case with an order that those submissions be modified to include more detailed information.[6]

Respectfully submitted,

DANIEL G. BOGDEN

United States Attorney

/s/ Holly A. Vance

HOLLY A. VANCE

Assistant United States Attorney

[6] Plaintiff appears to ask this Court to resolve another FOIA matter that is not the subject of this case. (# 50 at p. 51). This Court lacks jurisdiction to do so. Plaintiff also asks this Court to sanction NASA and Graham but he has offered no admissible evidence to warrant such sanctions. (#50 at p. 21).

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

JED MARGOLIN Plaintiff,

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,

Defendant.

Case No. 3:09-CV-0042 I -LRH-VPC

SUPPLEMENTAL DECLARATION OF COURTNEY E. GRAHAM

I, COURTNEY B. GRAHAM, hereby declare under penalty of perjury as follows:

1. I am the Associate General Counsel for Commercial and Intellectual Property Law ("CIPL") in the Office of General Counsel of the National Aeronautics and Space Administration ("NASA"). I respectfully submit this declaration in support of NASA's Reply to Plaintiffs Opposition to NASA's Cross-Motion for Summary Judgment (#50) based upon my knowledge of the facts set forth herein and my review of the pertinent documents referred to herein and annexed hereto. My initial declaration was submitted in support of NASA's Opposition to Motion for Summary Judgment and Cross-Motion for Summary Judgment. (#46).

2. 1 have been employed by NASA since October 6, 2006.

3. Plaintiff submitted the Freedom of Information Act ("FOIA") request which is the subject of this litigation on June, 28 2008, which is after the date I started my employment with NASA. Attached as Exhibit A is a true and correct copy of Plaintiffs FOIA Request, FOIA No. 08-270, dated June 28, 2008. Because I have been employed with NASA since before June 28,

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2008, I have personal knowledge of Defendant NASA's actions in connection with Plaintiffs June 28, 2008 FOIA request.

4. My knowledge of the FOIA request that is the subject of this litigation is based on: (1) my role as an attorney staff member of the CIPL practice group during the period from July 2008 through June 2009 and my personal support for the activity of that practice group during that time, and (2) my role as direct supervisor of the CIPL practice group from June 2009 to the present.

5. The CIPL practice group had four attorney staff members during the period from July 2008 through June 2009. This included me, Jan McNutt, Robert Rotella and Gary Borda. Mr. Borda and Mr. Rotella were the primary attorneys working on Case No. I-222, with support from Mr. McNutt. Mr. McNutt was the primary attorney working on FOIA No. 08-270, with support from me. I continued my support for FOIA No. 08-270 after assuming supervisory responsibilities for the CIPL practice group.

6. On August 12, 2009, I assumed direct responsibility for the FOIA request that is the subject of this litigation. See E-Mail, ACTION REQUIRED: Margolin FOIA Suit, dated August 12, 2009. A true and correct copy of that e-mail is annexed hereto as Exhibit B. As a result, I personally reviewed all of the documents and correspondence related to the matter as of that date.

7. I personally handled the correspondence with Rapid Imaging Software, Inc. ("RIS") relating to NASA's determination of RIS's claim under FOIA Exemption b(4). See Letter from Courtney Graham to Benjamin Allison, dated January 11, 2010. A true and correct copy of that letter is annexed hereto as Exhibit C. NASA's notice to RIS and the RIS objections are not attached to this Declaration as they include information sufficient to identify the withheld documents.

8. Publicly available documents in the record of Case No. I-222 contain conflicting information regarding the corporate name of the entity that received an assignment of Plaintiffs patents. The name may be Optima Technology Group, Inc. or Optima Technology Corporation. See Patent Assignment Abstract of Title and records from online databases, Bates Nos.

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04780-04785. True and correct copies of that Abstract of Title and those online database records are annexed hereto as Exhibit D. This uncertainty was highlighted in Defendant's final determination in Case No. I-222. See NASA Final Determination, Case I-222 at 3, dated March 19, 2009. A true and correct copy of that Final Determination is annexed hereto as Exhibit E. For clarity, all references to "Optima Technology Corporation" and "Optima Technology Group" in Defendant's documents should be read interchangeably to reference the entity referred to by Plaintiff as "Optima Technology Group."

9. When the CIPL practice group received Plaintiffs FOIA request No. 08-270, the group conducted a search of its records. A copy of the CIPL practice group file for Case I-222 was forwarded to the FOIA office on January 21, 2009. On May 14, 2009, the NASA Headquarters FOIA Office issued an initial determination in response to Plaintiffs FOIA request No. 08-270 releasing responsive documents to Plaintiff. See NASA's Initial Determination on Plaintiff s FOIA Request, FOIA No. 08-270, dated May 14, 2009. A true and correct copy of that Initial Determination is annexed hereto as Exhibit F.

10. In September 2009, when I initiated the second review of Document Nos. 04639 through 04866, the 227 pages of documents that were withheld in connection with the May 14, 2009 initial determination, I also reviewed the documents that had been released in connection with the May 14, 2009 initial determination.

11. My review revealed that none of the documents that had been released in connection with the May 14, 2009 initial determination had been redacted. I did not direct a second review of the documents that had already been released but did direct that care should be taken to ensure that unreleasable information was redacted from documents that had not yet been provided to Plaintiff. As a result, Plaintiff may have received redacted documents in the November 2009 supplemental disclosure of documents and an unredacted version of the same documents with the May 14, 2009 initial determination.

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12. Any disclosure of information covered by one or more FOIA exemptions in connection with the May 14, 2009 initial determination was inadvertent.

I hereby declare under penalty of perjury that the foregoing is true and correct to the best of my information and belief

COURTNEY B. GRAHAM

Associate General Counsel for Commercial and Intellectual Property Law of NASA Office of General Counsel

Dated: November 1 , 2010

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CERTIFICATE OF SERVICE

Case No. 3:09-CV-00421-LRH-VPC

The undersigned hereby certifies that service of the foregoing GOVERNMENT'S REPLY, SUPPLEMENTAL DECLARATION OF COURTNEY B. GRAHAM, and Exhibit A through Exhibit F have 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 on November 1, 2010:

JED MARGOLIN

1981 Empire Road

Reno, NV 89521-7430

/s/ Holly A. Vance

Holly A. Vance

JED MARGOLIN, Plaintiff,

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,

Defendant.

[For the Exhibits go to the original PDF version doc052-1.pdf]