Project on Predatory Lending v. DOJ, No. 17-210, 2018 WL 3348978 (W.D. Pa. July 9, 2018)

Project on Predatory Lending v. DOJ, No. 17-210, 2018 WL 3348978 (W.D. Pa. July 9, 2018)

Re:  Request for materials obtained by DOJ during discovery in a prior lawsuit

Disposition:  Granting in part and denying in part the parties' cross-motions for summary judgment

• Procedural Considerations, Agency Records: In considering prior case law, the court explains, "it is apparent that a court cannot conclude that 'control' exists merely because records 'have come into the agency's possession in the legitimate conduct of its official duties.'"  Instead, the "determination of 'control'" may be based on "how the agency used or did not use the requested materials."  Although the defendant possessed the hard drives at issue at the time of the FOIA request, the materials "were never made accessible electronically or in hard copy form to the [defendant]."  Accordingly, "the Court concludes that at the time of the [requester's] FOIA request the [hard drive materials] were not 'agency records' subject to the FOIA."     
   
• Litigation Considerations, Search:  Even if the hard drives were agency records, the court finds that the defendant satisfies its burden to demonstrate that searching for and producing responsive records from the hard drives would be unduly burdensome.  The court cites to the defendant's affidavit explaining that the hard drives "'contain over nine terabytes of electronically stored information . . . and [the DOJ] does not have the technological capability to process the data . . . to confirm it to current specifications for review platforms, or to load, store, host, or review that volume of data on its servers.'"  The court explains,"[t]he affidavits provided by the DOJ have asserted good faith specific estimates as to the amount of documents involved, potential costs, and the time required to conduct the search."
   
• Litigation Considerations, Adequacy of Search:  As to locating other agency records responsive to the request, the court concludes that the defendant provided a "reasonably detailed affidavit" to support that it conducted an adequate search, which included searching in the hard copy case file, the electronic case file, and the email archives for three attorneys involved in the litigation, in addition to searching the office where the litigation arose. 
   
• Procedural Considerations:  With regard to documents that are copies of documents included on a CD that has not been released, the court "rejects the [defendant's] argument that withholding copies of responsive documents by itself is a proper justification for withholding a document under the FOIA."  Regarding the defendant's reliance on protective orders for not releasing certain records, the court holds that the protective orders "do not prohibit the [defendant's] ability to disclose responsive documents in accord with the procedures and requirements of the protective orders." 
   
• Exemption 5, Attorney Work-Product:  As to six discovery documents that contain handwritten attorney notes reflecting the mental impressions of counsel, the court holds that "[a] discovery document with counsel's handwritten notes on it is prima facie evidence that the document is work product."  By contrast, the court denies, "without further explanation," attorney work-product protection for four documents solely because they were emailed among counsel.