Buzzfeed, Inc. v. DOJ, No. 18-1556, 2024 WL 195751 (D.D.C. Jan. 18, 2024) (Chutkan, J.)

Buzzfeed, Inc. v. DOJ, No. 18-1556, 2024 WL 195751 (D.D.C. Jan. 18, 2024) (Chutkan, J.)

Re:  Request for records concerning acquisition and use of lethal injection drugs

Disposition:  Granting defendant’s motion for partial reconsideration

• Litigation Considerations, Waiver of Exemptions in Litigation & “Reasonably Segregable” Requirements:  “The court erred in ordering supplemental briefing on the issue of withholding contractor names pursuant to FOIA exemption 4 because Plaintiff waived the issue.”  “The Government informed Plaintiff of the information it withheld pursuant to specific exemptions in a Vaughn index.”  “That index disclosed that the Government applied exemption 4 to contractor names.”  “In its summary judgment briefing, however, Plaintiff expressly claimed that the only exemption 4 issue remaining was the withholding of ‘the names and descriptions of the substances, prices, delivery dates, and expiration dates.’”  “Thus, Plaintiff demonstrated an understanding of exemption 4 withholdings, and chose not to challenge . . . the Government’s withholding of contractor names pursuant to exemption 4.”  “The interests of justice also support granting the motion for reconsideration.”  “Plaintiff chose not to press the contractor names issue . . . .”  “Rather, Plaintiff chose to focus on other issues and not to preserve a contractor names challenge . . . .” 
  
  “Plaintiff does not contest that it waived and failed to brief the contractor names issue.”  “Instead, it argues that supplemental briefing is warranted on alternate grounds.”  “First, because [of] an intervening change in the law . . . .”  “That argument fails for several reasons.”  “An intervening change in the law can only excuse waiver if the legal basis for the issue ‘did not exist at the time,’ . . . yet Plaintiff fails to explain how [a recent case] changed controlling law regarding the contractor names . . . .”  “In addition, Plaintiff’s notice of supplemental authority did not request supplemental briefing or even attempt to place the contractor names issue back on the table.”
  
  “Next, Plaintiff argues that supplemental briefing was appropriate because of ‘independent reasons specific to FOIA cases.’”  “It contends that because FOIA requires the court to determine whether the agency has disclosed all non-exempt portions of the document that are reasonably segregable from the withheld portions, ‘the [c]ourt was required to ensure [the contractor names] were properly redacted’ even if Plaintiff did not challenge the withholding.”  “But this confuses the court’s ability to raise segregability sua sponte with an obligation to do so.”  “The segregability principle does not require the court to address a waived issue.”  “As the Government correctly notes, ‘[i]f that were the case, then a Plaintiff could never waive a challenge to an agency’s withholdings and the courts would be burdened with addressing the application of FOIA exemptions that both parties agreed were no longer in dispute.’”
  
  “Plaintiff also notes that ‘courts in FOIA cases routinely exercise their discretion to consider exemption issues not raised by the parties.’”  “This argument again conflates the court’s discretion with the court’s obligations.”  “Finally, Plaintiff argues that justice does not favor reconsideration because any prejudice to the Government is ‘minimal,’ and the public remains interested ‘in knowing who supplied [the] government with lethal substances’ regardless of whether those substances were ultimately used in executions.”  “Any potential public benefit of disclosing the names of lethal injection contractors, however, is outweighed by the interest in holding experienced litigants to their concessions and avoiding unnecessary litigation burdens, especially considering the current moratorium on federal executions.”  “The court erred, and Plaintiff should not unjustly benefit from the oversight.”