Munger Tolles & Olson LLP v. United States Department of the Army

Filing 41

ORDER RE: (1) SUPPLEMENTAL BRIEFING; (2) IN CAMERA REVIEW OF UNREDACTED DOCUMENTS by Judge Dean D. Pregerson: Defendant shall file with the Court unredacted copies of all produced documents in this case (apparently 32 in number), under seal and in ca mera, no later than 2:00 p.m., Tuesday, October 14, 2014, with courtesy copies delivered to chambers at the same time.Defendant shall file with the Court a supplement to its Vaughn Index describing all the documents (apparently six in number) that ha ve been withheld in their entirety.The supplement shall be filed no later than 12:00 p.m., Friday, October 10, 2014, with courtesy copies delivered to chambers at the same time.Both parties shall file a supplemental briefing, no longer than fifteen p ages under the provisions of the Local Rules, solely on the issue of harm to the competitive position of the third party.The supplemental briefings and any accompanying exhibits shall be filed no later than 2:00 p.m., Tuesday, October 14, 2014,with courtesy copies delivered to chambers at the same time. (lc). Modified on 10/6/2014. (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MUNGER, TOLLES & OLSON LLP
O/B/O AMERICAN MANAGEMENT
SERVICES LL, D/B/A PINNACLE,

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Plaintiff,
v.
UNITED STATES DEPARTMENT OF
THE ARMY,
Defendant.
___________________________

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Case No. CV 13-06890 DDP (MANx)
ORDER RE: (1) SUPPLEMENTAL
BRIEFING; (2) IN CAMERA REVIEW OF
UNREDACTED DOCUMENTS

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The Court has received the parties’ motions for summary

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judgment in this matter regarding Freedom of Information Act

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(“FOIA”) disclosures.

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the question of whether some of the requested material may be

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withheld or redacted under U.S.C. § 522(b)(4).

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exempts documents that are “trade secrets and commercial or

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financial information obtained from a person and privileged or

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confidential.”

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the documents in question involve commercial or financial

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information obtained from a person.

It appears that the key to these motions is

That provision

There does not appear to be any disagreement that

Thus, the critical component

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of the 522(b)(4) exemption in this case is likely to be a

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determination of whether the information is “confidential.”

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The Ninth Circuit has held that information obtained from

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third parties is “confidential” for § 522(b)(4) purposes if

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disclosure would either “impair the Government's ability to obtain

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necessary information in the future” or “cause substantial harm to

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the competitive position of the person from whom the information

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was obtained.”

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1109, 1112 (9th Cir. 1994) (citing Nat’l Parks & Conservation Ass'n

GC Micro Corp. v. Def. Logistics Agency, 33 F.3d

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v. Morton, 498 F.2d 765 (D.C.Cir.1974)).

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likely that the first prong will often merge with the second prong:

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that is, contractors will be unwilling to provide this sort of

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information to the government to the degree that disclosure of the

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information would tend to hurt their competitive position.

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In practice, it seems

Summary judgment is only appropriate where “there is no

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genuine dispute as to any material fact.”

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FOIA cases “may usually be decided on summary judgment,” because

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often the only factual question is about the contents of the

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documents themselves.

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Commerce, 968 F.2d 916, 919 (9th Cir. 1992).

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522(b)(4) context, whether disclosure will cause “harm to the

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competitive position” of the third party can, itself, be an issue

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of material fact.

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(remanding for further factual development where it was not clear

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whether affected third party’s competitive position would be

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injured).

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fact requiring a discussion of precedent regarding the categories

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of information that are to be disclosed.

Fed. R. Civ. P. 56.

Assembly of State of Cal. v. U.S. Dep't of
However, in the §

See, e.g., Nat'l Parks, 498 F.2d at 770-71

Moreover, it is likely to be a mixed issue of law and

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The disclosure of some

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categories of information may be assumed to serve the public

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interest, absent special reasons justifying non-disclosure.

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“[d]isclosure of prices charged the Government is a cost of doing

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business with the Government.... Adequate information enables the

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public to evaluate the wisdom and efficiency of federal programs

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and expenditures.”

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No. 09-CV-2139-IEG, 2010 WL 2925436 (S.D. Cal. July 23, 2010)

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(quoting Racal-Milgo Gov't Sys., Inc. v. Small Bus. Admin., 559

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F.Supp. 4, 6 (D.D.C.1981)).

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E.g.,

JCI Metal Products v. U.S. Dep't of the Navy,

Thus, in order to properly rule on these motions, the Court

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must have three things.

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the content of the documents.

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information about the likely impact of the redacted or withheld

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documents on the third party’s competitive position to be able to

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make a reasoned decision as to whether there remains a disputed

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issue of material fact.

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briefed on case law regarding, not just § 522(b)(4) generally, but

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the particular kinds of information at stake in the case.

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It must have an adequate understanding of
It must also have enough factual

Finally, the Court must be adequately

Additionally, Plaintiff must be given adequate information

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with which to make its case for the release of documents.

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“Categorical description of redacted material coupled with

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categorical indication of anticipated consequences of disclosure is

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clearly inadequate.”

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224 (D.C. Cir. 1987).

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affords [the requester] little or no opportunity to argue for

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release of particular documents.”

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979 (9th Cir. 1991).

King v. U.S. Dep't of Justice, 830 F.2d 210,
This is because the “categorical approach

Wiener v. F.B.I., 943 F.2d 972,

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For all the above reasons, the Court orders the following:

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Defendant shall file with the Court unredacted copies of all

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produced documents in this case (apparently 32 in number),

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under seal and in camera, no later than 2:00 p.m., Tuesday,

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October 14, 2014, with courtesy copies delivered to chambers

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at the same time.

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•

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Defendant shall file with the Court a supplement to its Vaughn
Index describing all the documents (apparently six in number)

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that have been withheld in their entirety.

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need not be described with so much particularity as to reveal

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their actual contents, but the description must be sufficient

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to put Plaintiff on notice as to their nature and general

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significance, so that Plaintiff may effectively argue for

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their release.

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12:00 p.m., Friday, October 10, 2014, with courtesy copies

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delivered to chambers at the same time.

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•

These documents

The supplement shall be filed no later than

Both parties shall file a supplemental briefing, no longer

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than fifteen pages under the provisions of the Local Rules,

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solely on the issue of harm to the competitive position of the

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third party.

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regarding the specific kinds of information in the documents,

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such as: technical drawings; scheduling plans; and financial

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information like prices, costs, budgeting information, and

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income and debt information.

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Parties shall address relevant precedent

(See Def.’s Vaughn Index.)

In the supplemental briefings, parties shall also address the

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question of whether disclosure of information about these

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projects is likely to harm the competitive position of Clark
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Realty Capital and/or related companies, especially in light

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of the argument made by Plaintiff that the market for this

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kind of military housing project is essentially closed.

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(Pl.’s Mot. Summ.J. at 18-19.)

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support these factual arguments with relevant exhibits.

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Parties are encouraged to

The supplemental briefings and any accompanying exhibits shall

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be filed no later than 2:00 p.m., Tuesday, October 14, 2014,

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with courtesy copies delivered to chambers at the same time.

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IT IS SO ORDERED.

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Dated: October 6, 2014

DEAN D. PREGERSON
United States District Judge

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