United States District Court, D. Alaska
INTER-COOPERATIVE EXCHANGE, an Alaska cooperative corporation, Plaintiff,
v.
UNITED STATES DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, and NATIONAL MARINE FISHERIES SERVICE, Defendants.
ORDER ON DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT (DKT. 21) AND PLAINTIFF'S MOTION FOR
DISCOVERY (DKT. 24)
TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE.
I.
INTRODUCTION
The
matter comes before the Court on Defendants the United States
Department of Commerce (“DOC”), the National
Oceanic and Atmospheric Administration (“NOAA”),
and the National Marine Fisheries Service's
(“NMFS”) (collectively, “Defendants”)
Motion for Summary Judgment (“Motion for Summary
Judgment”).[1] On September 24, 2019, Plaintiff
Inter-Cooperative Exchange filed an Opposition to the Motion
for Summary Judgment
(“Opposition”).[2]Plaintiff simultaneously filed a
related Motion for Written Discovery (“Motion for
Discovery”).[3]Defendants filed a Reply to the Opposition
(“Defendants' Reply”) on October 8, 2019,
which also argued their opposition to the Motion for
Discovery.[4] On October 18, 2019, Plaintiff filed its
Reply in Support of Motion for Written Discovery
(“Plaintiff's Reply”).[5] Both
Defendants' Motion for Summary Judgment and
Plaintiff's Motion for Discovery are fully briefed.
Plaintiff requested oral argument on both motions and a
hearing was held on November 25, 2019.[6] Upon careful
consideration of the record, and for the reasons stated
below, Defendants' Motion for Summary Judgment at docket
21 is GRANTED and Plaintiff's Motion for
Discovery at docket 24 is DENIED.
II.
BACKGROUND
A.
Factual Background
Plaintiff
is a cooperative of fishermen who harvest and deliver crab in
the Bering Sea and Aleutian Islands.[7] Defendants are federal
agencies responsible for regulating and enforcing the
nation's fisheries through regional fishery management
councils.[8] In 2005, Defendants implemented a crab
price arbitration system to guide price negotiations between
harvesters and processors.[9] Historically, business costs were not
considered in the price formula.[10] However, in 2014, Alaska
voters approved an initiative to raise the minimum
wage.[11] In response, crab fishery processor
representatives requested that Defendants reevaluate whether
to consider costs-such as the now higher wages paid to
processor employees-under the arbitration
system.[12] Defendants agreed to prepare a
discussion paper on the issue and the paper was published in
April 2017.[13]Thereafter, Glenn Merrill, NMFS'
Assistant Regional Administrator for the Alaska Region
(“ARA”), introduced a motion to include costs for
consideration in the arbitration system.[14]
On July
18, 2017, Plaintiff submitted a Freedom of Information Act
(“FOIA”) request to Defendants in an effort to
determine the record behind Mr. Merrill's motion and his
underlying rationale.[15] Plaintiff requested the following two
categories of records:
1) All correspondence to or from Glenn Merrill, Assistant
Regional Administrator for the Alaska Region of NMFS, from
January 1, 2016 through the present relating to (a) the
interpretation and application of the arbitration system
standards set forth at 50 C.F.R. § 680.20(g) and/or (b)
the Alaska state minimum wage increase approved by voters in
November 2014.
For purposes of this request, the term
“correspondence” includes without limitation all
emails, text messages, social media messages, voice mails,
facsimiles and letters, regardless of whether sent from or
received on government or personal devices or transmitted
through some other means.
[ . . . ]
2) All documents relating to (a) interpretation and
application of the arbitration system standards set forth at
50 C.F.R. § 680.20(g) and/or (b) the Alaska state
minimum wage increase approved by voters in November 2014.
For purposes of this request, the term
“documents” includes without limitation all
analyses, memoranda, minutes, motions, notes, papers and
other records, and all drafts of the same.[16]
Defendants
responded to Plaintiff's FOIA request and produced 146
records, including several emails with
redactions.[17] Finding Defendants' FOIA response
insufficient, on December 15, 2017, Plaintiff filed an
administrative appeal on the grounds that the response did
not include any of Mr. Merrill's text messages, social
media messages, and voicemail messages and redacted certain
email correspondence.[18]
B.
Procedural Background
On
October 2, 2018, having received no response to its
administrative appeal, Plaintiff filed the Complaint in this
Court.[19] Plaintiff alleges that Defendants
violated FOIA on two grounds: (1) Defendants failed to make
reasonable efforts to search for, and has improperly
withheld, records responsive to Plaintiff's FOIA request,
and (2) Defendants improperly redacted certain records
subject to production.[20] Specifically, Plaintiff believes that
there are further agency records reflecting discussion
between Mr. Merrill and others concerning Mr. Merrill's
motion to consider costs in pricing
arbitration.[21] Plaintiff further argues that the
redacted emails in Defendants' production were improperly
redacted because the emails constitute part of the publicly
available administrative record and because Defendants failed
to explain how disclosure of the emails could foreseeably
harm an interest protected by their asserted exemptions to
disclosure.[22] Plaintiff, therefore, requests a
judicial declaration that Defendants have violated FOIA, an
order compelling Defendants to search for and produce the
sought-after agency records without redaction, and an award
of attorneys' fees and litigation costs.[23]
On
February 22, 2019, Defendants filed an Answer and lodged the
decision in Plaintiff's administrative appeal of its FOIA
request (“Appeal Decision”).[24] The Appeal
Decision granted Plaintiff's appeal with respect to the
foreseeable harm issue and revised redactions to release
information contained in three previously produced
records.[25] However, Plaintiff's appeal was
denied with respect to the adequacy of the search and the
remaining redactions.[26] The Appeal Decision states that Mr.
Merrill does not have a government-issued cellphone or
official government social media account.[27] Moreover, the
Appeal Decision states that Mr. Merrill has no recollection
of sending or receiving responsive text, social media, or
voicemail messages responsive to Plaintiff's request but
reviewed his personal records to confirm that no such
responsive records exist.[28]
1.
Defendants' Motion for Summary Judgment
Then,
on September 3, 2019, Defendants filed a Motion for Summary
Judgment arguing that they have adequately discharged their
obligations under FOIA.[29] First, Defendants argue that they
conducted a reasonable search for responsive
records.[30] Defendants allege that they performed a
search of NMFS' Alaska Region offices and “examined
all of Mr. Merrill's correspondence, as that term is
defined in Plaintiff's FOIA request.”[31] Defendants
reference the single search log from their initial
response.[32] The search log states that Mr. Merrill
searched his emails, network drive, and desktop for the terms
“binding arbitration, ” “arbitration,
” and “crab.”[33] Defendants explain that
the omission of any search of Mr. Merrill's cellphone and
social media was an “inadvertent
error.”[34] Defendants confirm that Mr. Merrill
searched his personal cellphone since he does not have a
government-issued work cellphone and found no responsive
records.[35] Therefore, Defendants contend that their
search was reasonably calculated to uncover all relevant
documents.[36]
Next,
as for the redacted records, Defendants allege that NOAA
withheld portions of seven records pursuant to certain
statutory exemptions from disclosure under
FOIA.[37] Six documents were partially redacted to
protect information subject to attorney-client privilege and
one document was partially redacted to protect personal
information from a clearly unwarranted invasion of
privacy.[38] Defendants justify that the six
documents redacted due to attorney-client privilege contain
confidential communications between NMFS employees, fishery
council staff, and NOAA Office of General Counsel
attorneys.[39] Defendants argue that an exemption from
disclosure was properly invoked because those emails are
exactly the communications the privilege is designed to
protect.[40]
Plaintiff
filed the Opposition and requested oral argument on the
issues.[41] Plaintiff argues that the Court should
deny summary judgment on both the adequacy of the search and
the propriety of the redactions. Plaintiff claims that the
Motion for Summary Judgment “presents a new set of
facts” and undermines the adequacy of Defendants'
search by not providing sufficient details regarding the
search.[42] Plaintiff argues that Defendants'
search parameters and process were not reasonably calculated
to uncover responsive communications.[43] Plaintiff
further alleges that additional evidence contradicts Mr.
Merrill's assertions that he does not use his personal
cellphone to conduct government business.[44]
Moreover,
Plaintiff argues that Defendants cannot claim attorney-client
privilege to justify the email redactions on two
grounds.[45] First, Plaintiff claims that no
attorney-client relationship existed between councilmembers
and NOAA attorneys.[46] Second, Plaintiff claims that there was
no reasonable expectation of confidentiality because the
emails prepared for or by council members incident to a
public meeting form part of the public record.[47] So, for the
sake of argument, even if attorney-client privilege existed,
the emails at issue now would still be subject to disclosure
because no reasonable expectation of confidentiality attached
to the communications.[48]
In
Defendants' Reply, [49] Defendants repeat that they
adequately searched Mr. Merrill's email, network,
desktop, and personal cellphone for any items containing the
search terms “binding arbitration, ”
“arbitration, ” and
“crab.”[50] In response to Plaintiff's claims
that Defendants did not provide sufficient detail of the
search, Defendants lodged a Declaration by Mr.
Merrill.[51]Defendants assert that the previously
submitted Declaration of Dr. Balsiger, [52] Mr.
Merrill's direct supervisor, was sufficient; the addition
of Mr. Merrill's own Declaration “remove[s] any
doubt and counter[s] Plaintiff's suggestions of bad
faith.”[53] Furthermore, Defendants counter
Plaintiff's denial of any attorney-client relationship
between NOAA Office of General Counsel attorneys and the
regional crab fishery council.[54] Defendants contend that
attorney-client privilege extends to the redacted emails
because they involve a legal question and response between an
NOAA attorney, a NMFS official, and information provided by a
councilmember.[55] Defendants conclude that they have
discharged their duties under FOIA, the Motion for Summary
Judgment should be granted, and the case should be
dismissed.[56]
2.
Plaintiff's Motion for Written Discovery
Concurrent
with its Opposition to the Motion for Summary Judgment,
Plaintiff filed a related Motion for Written
Discovery.[57] Plaintiff argues that it should be
allowed to propound written interrogatories and requests for
production of documents to further examine whether the scope
and depth of Defendants' search were reasonably
calculated to uncover responsive records to Plaintiff's
FOIA requests.[58] Plaintiff claims that countervailing
evidence shows that Defendants have not satisfied their
burden of proving an adequate search.[59] The evidence
consists of a text message log obtained by Plaintiff through
a supplemental FOIA request to another agency; the message
log shows that Mr. Merrill used his personal cellphone to
text another councilmember's government-issued cellphone
during council meetings.[60] Plaintiff asserts that this evidence
indicates there are “significant factual gaps” in
the Defendants' FOIA production and arguments in the
Motion for Summary Judgment.[61] Therefore, Plaintiff requests
permission to issue written discovery.[62]
Defendants
incorporated their Opposition to Plaintiff's Motion for
Discovery into their Reply to Plaintiff's Opposition to
Motion for Summary Judgment.[63] In summary, Defendants assert
that they conducted an adequate search and, as such, no basis
exists for Plaintiff's discovery requests.[64]
Plaintiff
then filed a Reply in Support of Motion for Written Discovery
on October 15, 2019.[65] Plaintiff contests that the Declaration
of Mr. Merrill, submitted with Defendants' Reply, still
leaves important questions unanswered.[66] Plaintiff
expresses doubt as to Defendants' claim that Mr. Merrill
only exchanged text messages of a personal nature with
another councilmember and that the Defendants are relying on
Mr. Merrill's recollection instead of simply verifying
whether the messages were personal.[67] Finally, Plaintiff argues
that Defendants incorrectly assume Plaintiff must show bad
faith to obtain discovery.[68] Rather, Plaintiff believes
that Defendants have failed in their obligation to conduct a
reasonable search and that discovery should be permitted,
including in camera inspection of certain text
messages.[69]
3.
Oral Argument
At the
November 25, 2019, hearing, the Parties largely reargued the
points made in their written briefs. Defendants maintained
that their search was reasonable and that attorney-client
privilege indeed justified redacting certain portions of
emails between NMFS and council employees and an NOAA
attorney. In addition, Defendants submitted the redacted
emails for in camera review. In response, Plaintiff
suggested two tests to assess the reasonableness of
Defendants' search. Plaintiff also reiterated its
position that an attorney-client relationship did not exist
and, even to the extent a relationship may have existed
between Mr. Merrill and the NOAA attorney, they waived
privilege by including the council staff member. The Court
will address the foregoing issues in turn.
III.
LEGAL STANDARD
A.
Summary Judgment
A party
may move for summary judgment on a claim, a defense, or a
part of either under Federal Rule of Civil Procedure 56(a).
Summary judgment is appropriate where, viewing the evidence
and drawing all reasonable inferences in the light most
favorable to the nonmoving party, [70] “the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of
law.”[71] Material facts are those which might
affect the outcome of the case.[72] A genuine issue of
material fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.”[73] “There is no genuine issue of fact
if, on the record taken as a whole, a rational trier of fact
could not find in favor of the party opposing the
motion.”[74] A movant's burden may be met by
“‘showing'-that is, pointing out to the
district court-that there is an absence of evidence to
support the nonmoving party's case.”[75]Thus,
“at the summary judgment stage the judge's function
is not himself to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine
issue for trial.”[76]
Once a
movant has met its initial burden, Rule 56(e) requires the
nonmoving party to go beyond the pleadings and identify facts
which show a genuine issue for trial.[77] Evidence
introduced in opposition to a summary judgment motion does
not have to be admissible at trial; the permissible evidence
is identified in Fed.R.Civ.P. 56(c).[78] However,
“conclusory assertions are wholly insufficient to
sustain either the [moving party's] burden or the
district court's grant of summary
judgment.”[79] Moreover, “[a] party opposing a
summary judgment motion must produce ‘specific
facts showing that there remains a genuine factual issue for
trial' and evidence ‘significantly probative as to
any [material] fact claimed to be
disputed.'”[80]
B.
Summary Judgment in FOIA Cases
“Most
FOIA cases are resolved by the district court on summary
judgment, with the district court entering judgment as a
matter of law.”[81] To prevail on summary judgment in a
FOIA case, the federal agency must establish: (1) that its
search for responsive documents was “reasonably
calculated to uncover all relevant
documents;”[82] and (2) that any non-disclosure is
properly justified by a FOIA exemption.[83] An agency can
demonstrate the adequacy of its search through
“reasonably detailed, nonconclusory affidavits
submitted in good faith.”[84] Similarly it is the
agency's burden to demonstrate that the materials sought
have not been improperly withheld.[85]“Courts are
permitted to rule on summary judgment in FOIA cases solely on
the basis of government affidavits describing the documents
sought.”[86] However, if the record raises
“substantial doubt, particularly in view of well
defined requests and positive indications of overlooked
materials, summary judgment is
inappropriate.”[87]
IV.
ANALYSIS
A.
Adequacy of Defendants' Search Here, Plaintiff filed
the Complaint, in part, on the basis that Defendants'
search for responsive correspondence-particularly the search
of Mr. Merrill's text, social media, and voicemail
messages-was insufficient.[88] Defendants move for summary
judgment and submit declarations of Mr. Merrill and his
direct supervisor, Dr. Balsiger, to confirm that Mr. Merrill
searched his cellphone and social media
accounts.[89] In Opposition, Plaintiff contends that
the declarations leave important questions
unanswered.[90] At oral argument, Plaintiff asserted
that, according to their electronic discovery expert, a
manual search of cellphone messages is not reliable. Rather,
the typical protocol for cellphone evidence requires first
backing up the phone, then searching the extracted phone
data. Plaintiff's counterpoints are unavailing and fail
to cast doubt on Defendants' reasonable search.
As
stated above, FOIA obligations require the federal
agency's search be “reasonably calculated to
uncover all relevant documents.”[91] The issue
“is not whether there might exist any other documents
possibly responsive to the request, but rather whether the
search for those documents was
adequate.”[92]
Defendants
have conducted an adequate search for correspondence
responsive to Plaintiff's FOIA requests. The record shows
that Defendants did in fact conduct adequate search of Mr.
Merrill's text, social media, and voicemail messages. In
the Motion for Summary Judgment, Defendants admit that they
made an “inadvertent error” when their initial
response to Plaintiff's FOIA request did not show that
Mr. Merrill searched his text, social media, and voicemail
messages.[93] Defendants attempt to correct this
omission by clarifying that Mr. Merrill does not have a
government-issued work cellphone or social media
account.[94] Instead, Mr. Merrill “confirmed
that he in fact searched his personal cell phone, including
his text messaging application and social media
accounts.”[95] Defendants further provide the
Declaration of Dr. Balsiger, in which Dr. Balsiger avers that
he oversees NMFS' review and responses to FOIA requests
and that, based on his personal knowledge, Mr. Merrill
searched his personal cell phone.[96]Specifically, Dr. Balsiger
states that Mr. Merrill searched his text messaging
application and social media accounts using the same three
search terms, “binding arbitration, ”
“arbitration, ” and
“crab.”[97] Defendants assert that the search of Mr.
Merrill's personal records did not uncover any responsive
material to Plaintiff's request.[98]
Even
though the Declaration of Dr. Balsiger is sufficient,
[99]
Defendants also submitted a Declaration of Mr. Merrill to
address in additional detail the questions raised by
Plaintiff.[100]Mr. Merrill explains that he met with
the FOIA and Records Coordinator for NMFS Alaska Region and
an NOAA Office of General Counsel attorney to discuss how to
respond to Plaintiff's FOIA Request.[101] They
selected the three search terms because those terms
“reflected the specific parameters of Plaintiff's
FOIA request, and were likely to appear in any potentially
responsive documents.”[102] He then checked his
iMessage, Facebook, and WhatsApp accounts on his personal
cellphone and found no records responsive to Plaintiff's
FOIA request.[103] Mr. Merrill does not have other social
media accounts or any recollection of using other text
messaging applications during the time period at
issue.[104] Finally, Mr. Merrill listened through
his voicemail and found no responsive records.[105] Despite
its contention otherwise, Plaintiff is not entitled to a
forensic search of Mr. Merrill's cellphone.[106]
Mr.
Merrill further clarifies that he used “a standard
internal form that NOAA prepares . . . in response to a FOIA
request.”[107] Subsequent to completing the form, Mr.
Merrill realized that he had “inadvertently
omitted” listing the search of his personal cellphone
and reached out to the supervising agencies to clarify and
correct that omission.[108] Based on Mr. Merrill's
declaration, it is clear that Defendants conducted a search
using reasonably calculated search terms and did not uncover
any responsive records other than the ones already produced.
To this point, Defendants have met their burden for summary
judgment.
Now, it
is Plaintiff's burden to show that material facts remain
at issue and that Defendants' affidavits are impugned by
bad faith.[109] To do so, Plaintiff refers to a
message log obtained in a separate FOIA request showing that
Mr. Merrill exchanged text messages with another
councilmember, Mr. Tweit, during council
meetings.[110] Plaintiff infers that messages
exchanged between councilmembers during council meetings must
be official government business and that the existence of
these messages undermines Mr. Merrill's claim that he
does not conduct government business on his personal
accounts.[111]
Plaintiff's
conclusion is directly contradicted by Mr. Merrill's
declaration and other information obtained in the separate
FOIA request. Mr. Merrill has definitively stated that his
personal cellphone does not contain any messages that are
responsive to Plaintiff's FOIA request.[112] Moreover,
Plaintiff acknowledges that even the messages between Mr.
Merrill and Mr. Tweit were not produced in response to their
subsequent FOIA request, indicating that the content of those
messages were not relevant, official government business, or
responsive to the FOIA request. Therefore, the existence of
these additional messages does not create an issue of
material fact or establish bad faith on Defendants' part.
Plaintiff has not met its burden.
Accordingly,
Defendants' Motion for Summary Judgment is
GRANTED as to the adequacy of their search.
B.
Propriety of Defendants' Redactions
Plaintiff
complains that Defendants improperly redacted email
correspondence between various agency and council
representatives that should otherwise be publicly
available.[113] In response to Plaintiff's initial
FOIA request, Defendants had produced 146 records; six of
those records contained redactions under 5 U.S.C. §
552(b)(5) (“Exemption 5”) and one record
contained redactions under 5 U.S.C. § 552(b)(6)
(“Exemption 6”).[114] Plaintiff then only
appealed the redactions made under Exemption 5. The Appeal
Decision granted in part and denied in part Plaintiff's
appeal and enclosed revised redactions for three of the six
records.[115] On Motion for Summary Judgment,
Defendants describe the six email records to involve
communications between Mr. Merrill, Ms. Smoker, a NOAA Office
of General Counsel attorney, and Ms. Marrinan, a council
staff member.[116] The content of these emails
purportedly seek, offer, or comment upon legal counsel
relating to the crab arbitration price formula.[117]
Defendants assert these emails fall squarely within
attorney-client privilege.[118]
Pursuant
to Exemption 5, “inter-agency or intra-agency
memorandums or letters that would not be available by law to
a party other than an agency in litigation with the
agency” are generally protected from FOIA
disclosure.[119] Exemption 5 incorporates traditional
privileges found in civil discovery, including
attorney-client privilege.[120] Once again, it is the
agency's burden “to show that an exemption properly
applies to the records it seeks to
withhold.”[121] “[A] party asserting the
attorney-client privilege has the burden of establishing the
relationship and the privileged nature of the
communication.”[122] Courts should give
“considerable deference to agency affidavits made in
apparent good faith where the affidavits reasonably describe
the justifications for nondisclosure and show that the
content withheld falls within one of FOIA's
exemptions.”[123]
The
Ninth Circuit follows an eight-part test to determine whether
information is protected under the attorney-client privilege:
(1) Where legal advice of any kind is sought (2) from a
professional legal advisor in his [or her] capacity as such,
(3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at [the client's]
insistence permanently protected (7) from disclosure by [the
client] or by the legal adviser, (8) unless the protection be
waived.[124]
The
Court has conducted an in camera review of the
emails and finds that attorney-client privilege warrants the
redactions at issue. Applying the eight-part test, the first
three factors concern the content of the communications.
First, it is clear that Ms. Marrinan initiated the email
chain as a “head's up” to start a
conversation seeking legal advice. Second, Ms. Smoker acts in
her capacity as a professional legal advisor by giving her
legal opinions and instructing on the legal process. Third,
the redacted communications clearly focus on a shared
interest in a legal issue. There is no dispute that the
redacted content qualifies as legal advice.
As for
the remaining five factors, Plaintiff contends that an
attorney-client relationship cannot exist between Ms.
Marrinan and Ms. Smoker because Ms. Marrinan's position
as a council staff member does not qualify as federal
employment under NOAA. Plaintiff argues the council is a
unique creature that is neither federal nor state. To the
contrary, regional fishery councils were established by the
federal government under the Magnuson-Stevens
Act.[125] Each council operates under the
authority of the Secretary of Commerce.[126] At oral
argument, Defendants stated that councils do not have
independent legal advisors of their own so they obtain legal
advice from the NOAA Office of General Counsel.[127] For
example-and of particular relevance to this case- FOIA
requests received by a council are coordinated through the
appropriate NMFS Regional Office and denials of requested
information must be approved by the NOAA General
Counsel's Office.[128] Therefore, council staff members,
like Ms. Marrinan, may invoke the attorney-client
relationship with NOAA Office of General Counsel.
Even
if, for the sake of argument, no clear attorney-client
relationship existed between Ms. Smoker and Ms. Marrinan, the
communications including Ms. Marrinan are still protected
from disclosure. “[C]ourts have agreed that
[attorney-client] privilege should not be defeated by some
limited circulation beyond the attorney and the person within
the group who requested the advice.”[129] The
agency must show that the confidential information was
“circulated no further than among those members of the
organization who are authorized to speak or act for the
organization in relation to the subject matter of the
communication.”[130] Here, Ms. Marrinan is a staff
economist for the council, to whom Plaintiff's attorney,
Joe Sullivan, specifically reached out to discuss the
underlying crab arbitration issue.[131] This indicates that
Plaintiff believed Ms. Marrinan to be in a position to speak
on behalf of the council regarding the issue. Ms. Marrinan
then emailed Mr. Merrill and Ms. Smoker for their input. The
communications thereafter seek and involve legal advice and
circulated only between Ms. Marrinan, Mr. Merrill, and NOAA
General Counsel.[132]Therefore, it is clear the emails
circulated within an attorney-client relationship and
including Ms. Marrinan does not defeat attorney-client
privilege.[133]
Now,
turning back to the last five factors of the test, the Court
finds that an attorney-client relationship does exist between
all active participates in the email thread. The council and
NMFS are clients of NOAA Office of General Counsel. The
information contained in the email was made in confidence and
intended to be protected from disclosure. This is clear from
Mr. Balsiger's Declaration[134] and the fact that
Defendants actively considered and revised redactions in
their FOIA response. Moreover, the privilege was not waived.
Ms. Marrinan could have simply included Mr. Sullivan in the
email thread to continue their discussion about the crab
arbitration issue but did not do so. It appears Ms. Marrinan
hoped to seek the advice of Mr. Merrill and Ms. Smoker
outside Mr. Sullivan's presence. Finally, Plaintiff does
not offer additional evidence to raise an issue of material
fact or show bad faith on the Defendants' behalf with
respect to the redactions.
Therefore,
Defendants' Motion for Summary Judgment is
GRANTED as to the redacted emails.
C.
Plaintiff's Motion for Written Discovery
Plaintiff
contends that the Court should permit discovery concerning
the adequacy of Defendants' search.[135] Plaintiff
seeks permission to serve interrogatories and request
production of documents concerning the search of Mr.
Merrill's cell phone and any measures Defendants have
taken to preserve potentially responsive
records.[136] Defendants oppose the Motion for
Written Discovery on the very same grounds as they are moving
for summary judgment.[137]
A
district court has wide latitude in controlling discovery
and, in FOIA cases, discovery is generally “limited
because the underlying case revolves around the propriety of
revealing certain documents.”[138] Discovery may be
granted “if a plaintiff has made a sufficient showing
of bad faith, raised a sufficient question of an agency's
good faith, or when a factual dispute exists and a plaintiff
questions the affidavits submitted by the
agency.”[139] Otherwise, a court may grant summary
judgment before the plaintiff conducts
discovery.[140]
Here,
Plaintiff acknowledges that “courts generally decide
[FOIA] cases without discovery” but argues that this is
a rare instance where limited discovery is
appropriate.[141] The Court disagrees this case warrants
such an exception. Where Plaintiff cites “significant
factual gaps, ”[142] the Court finds Defendants'
allegations-although at times forsaking clarity for
brevity-have consistently reiterated the same fact:
Defendants searched Mr. Merrill's records, including
text, social media, and voicemail messages on his personal
cellphone, and found no correspondence responsive to
Plaintiff's FOIA request. Because the Court finds that
Defendants' search is adequate and Plaintiff's
“countervailing evidence” inadequate,
[143] there is no further need for discovery
concerning Defendants' search.
Therefore,
Plaintiff's Motion for Written Discovery is
DENIED.
V.
CONCLUSION
For the
foregoing reasons, Defendants' Motion for Summary
Judgment at docket 21 is GRANTED and
Plaintiff's ...