Borda v. DOJ, No. 14-229, 2018 WL 1583042 (D.D.C. Mar. 31, 2018) (Moss, J.)

Borda v. DOJ, No. 14-229, 2018 WL 1583042 (D.D.C. Mar. 31, 2018) (Moss, J.)

Re: Request for certain records concerning grand jury proceedings, as well as records concerning plaintiff's conviction

Disposition: Granting defendant's motion for summary judgment

• Litigation Considerations:  "The Court will . . . deny [plaintiff's] motion for leave to file a second amended complaint."  The court explains that "there is no reason why [plaintiff] could not have included his allegations regarding the [other FOIA] requests in his first amended complaint; he failed to demonstrate due diligence in seeking to correct this omission when it came to his attention; and adding these additional allegations now would delay the resolution of this case, which has been pending for over four years and which has already generated three rounds of briefing on summary judgment."  "Although leave to amend must be freely granted, there are limits to that principle."  "[Plaintiff's] motion for leave to amend not only tests those limits, but exceeds them."
   
• Litigation Considerations, Adequacy of Search:  "The Court . . . concludes that the Department has conducted a search 'reasonably calculated to uncover all relevant documents,' . . . and will grant Defendant's motion for summary judgment as to the adequacy of the search."  The court explains that, "[b]y expanding its search beyond the five fact-specific terms that it previously employed to a search looking for any grand jury material related to [plaintiff's] case, the Department has remedied the sole deficiency the Court identified with respect to the search."
   
• Procedural Requirements:  The court holds that, "[b]ecause the Department has 'obtain[ed] a clarifying order [or letter] stating that the seal prohibits disclosure' of each of the plea agreements withheld in full, the Department 'is obviously entitled to summary judgment.'"  The court relates that, "[a]s the D.C. Circuit has explained, sealed documents are not categorically exempt from disclosure under FOIA."  "Instead, 'the proper test for determining whether an agency improperly withholds records under seal is whether the seal . . . prohibits the agency from disclosing the records.'"
   
• Exemption 3:  "The Court . . . concludes that the Department has properly withheld in full [certain grand jury transcripts]."  The court explains that "[g]rand jury transcripts, moreover, are the prototypical grand jury material exempt from disclosure under Rule 6(e), and are thus protected from disclosure by Exemption 3."  Additionally, "[t]he Court . . . concludes that the Department has properly withheld" a "PowerPoint at issue" because it "is sought 'from an entity whose possession of that information is directly linked to its role relating to the grand jury investigations.'"  The court finds that "[t]he Department has also properly withheld in full . . . 'a proposed' or 'draft' indictment in [plaintiff's] criminal case[.]"  "The draft indictment contains and refers to information and testimony that 'would have been presented or occurred before the grand jury investigating the criminal activities of the Plaintiff and his co-defendants.'"
   
• Exemption 5, Attorney Work-Product:  The court holds that "Exemption 5 straightforwardly covers the remaining documents because each was created during or in preparation for the criminal prosecution of [plaintiff] and his co-defendants."  "All of these materials 'were prepared by or at the direction of an attorney . . . in anticipation of the prosecution of the Plaintiff and his co-defendants' and 'contain information constituting the legal analysis' of an attorney working on the prosecution, that attorney's 'theory of the case being investigated and evaluation of the evidence,' and the attorney's 'assessments of facts and issues pertaining to the proposed Indictment of the Plaintiff and his co-defendants.'"  Additionally, the court finds that, "[a]lthough it is conceivable that the prosecution memoranda, in particular, contain some factual or other background material beyond the legal analysis of the authoring attorneys, '[t]he circuit's case law is clear that the work-product doctrine simply does not distinguish between factual and deliberative material.'"