King and Spaulding LLP v. HHS, No. 16-1616, 2018 WL 4286400 (D.D.C. September 7, 2018) (Mehta, J.)

King and Spaulding LLP v. HHS, No. 16-1616, 2018 WL 4286400 (D.D.C. September 7, 2018) (Mehta, J.)

Re:  Requests for records concerning a medical device company

Disposition:  Granting in part defendant's renewed motion for summary judgment; granting in part plaintiff's renewed cross-motion for summary judgment

• Exemption 7(D): In examining the withholding in full of 67 pages provided by an unnamed source, "the court is perplexed by [the] assertion that although 'the AUSA did not know the identity of the source,' disclosing the records still 'could reasonably reveal' the source's identity."  The unknown character of the source hinders the defendant's arguments as the court examines the four Roth factors to determine whether a source provided information under an implied assurance of confidentiality.  First, the court finds that "the regulatory nature of the offense . . .distinguishes this case" from crimes where there is a greater risk for retaliation, and the "prediction about [risks] is premised on pure speculation" because the identity of the source in unknown.  Second, the court finds the declarations are "silent with respect to the source's relationship to [the company under investigation]," and "absent more facts, the court is in no position to evaluate . . . the proximity of the source to the crime."  Third, since the "Defendants presented no evidence with respect to whether the unidentified source received payment in this case, the third factor does not weigh in factor of a finding of implied confidentiality here."  Fourth, while "the court agrees that the anonymous production of records does support some inference of confidentiality . . . the utter lack of specific evidence makes that inference a relatively weak one."   
             
• Exemption 6, 7(C): The court finds that while the "Plaintiff creatively weaves together a host of disparate facts to paint a portrait of government wrongdoing, none of its evidence 'warrants a belief by a reasonable persons that the alleged Government impropriety might have occurred,'" and the court finds that withholding the lawyer's name was appropriate.  However, the court agrees with the plaintiff that the defendant did not sufficiently justify "whether disclosing the name of the law firm could reasonably be expected to the lead to the identity of the lawyer," and permits the defendant to supplement the declaration with additional information on this point.  
   
• Litigation Considerations, Adequacy of Search: The court holds that the defendant's "declarations are lacking insofar as they do not include the search terms used to search three of the four AUSAs' email files" and permits the defendant's an opportunity to "submit an additional declaration . . attesting to the search terms used in the original searches" or "conduct a new search . . . and provide a sufficiently detailed declaration."