The American Civil Liberties Union of North California et al v. Federal Bureau of Investigation

Filing 161

STIPULATION AND ORDER REE 159 Regarding Production of Documents and Entry of Judgment. Signed by Judge Richard Seeborg on 12/8/15. (cl, COURT STAFF) (Filed on 12/8/2015)

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SOMNATH RAJ CHATTERJEE (CA SBN
177019)
[e-mail]
ANGELA E. KLEINE (CA SBN 255643)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105
Telephone: [phone]
Facsimile: 415.268.7200

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JULIA HARUMI MASS (CA SBN 189649)
[e-mail]
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN
CALIFORNIA, INC.
39 Drumm Street
San Francisco, California 94111
Telephone: [phone]
Facsimile: 415.255.8437

BENJAMIN C. MIZER
Principal Deputy Assistant Attorney
General
MARCIA BERMAN
Assistant Branch Director
LYNN Y. LEE (CA Bar 235531)
Trial Attorney
U.S. Department of Justice,
Civil Division Federal Programs Branch
P.O. Box 883
Washington, DC 20530
[phone]
[phone] (fax)
[e-mail]
Attorneys for Defendants

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NASRINA BARGZIE (CA SBN 238917)
[e-mail]
ASIAN LAW CAUCUS
55 Columbus Avenue
San Francisco, California 94111
Telephone: [phone]
Facsimile: 415.896.1702
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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THE AMERICAN CIVIL LIBERTIES UNION
OF NORTHERN CALIFORNIA, ASIAN LAW
CAUCUS, SAN FRANCISCO BAY
GUARDIAN,
Plaintiff,

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Case No.

3:10-cv-03759-RS

STIPULATION AND
[PROPOSED] ORDER
REGARDING PRODUCTION OF
DOCUMENTS AND ENTRY OF
JUDGMENT

v.
Hon. Richard Seeborg

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FEDERAL BUREAU OF INVESTIGATION,
DEPARTMENT OF JUSTICE,

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Defendant.
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Case No. 3:10-cv-03759-RS

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The parties to this action, through their attorneys of record listed below, hereby submit

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this Stipulation and Proposed Order, and accompanying Proposed Judgment, pursuant to Civil

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Local Rule 7-12 and Federal Rule of Civil Procedure 58(d).

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WHEREAS, the parties filed cross motions for summary judgment regarding (1) the FBI’s

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application of FOIA exemptions 2, 5, and 7 to documents subject to Plaintiffs’ FOIA request,

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(2) Defendant’s Vaughn index regarding the application of those exemptions, and (3) the

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segregability of certain information withheld under those exemptions. (ECF Nos. 114, 119, 123,

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125, 138, 140);

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WHEREAS, on March 23, 2015, the Court issued on order on a threshold Exemption 7

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issue, and subsequently further ordered that “[f]or the purpose of efficiency, the issues

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surrounding Exemptions 2 and 5 shall be decided prior to consideration of a process for

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disclosing any materials deemed improperly withheld or redacted.” (ECF Nos. 128, 135.)

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WHEREAS, on November 17, 2015, after further briefing regarding the materials

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withheld under Exemptions 2 and 5, the Court ordered the FBI to produce within thirty days the

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documents withheld under Exemptions 5 that Plaintiffs challenged, with the exception of certain

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redacted material (ECF No. 152).

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WHEREAS, the FBI is considering an appeal of the November 17, 2015 order, and wishes

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to include in its consideration the Court’s March 23, 2015 ruling on its assertion of Exemption 7,

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which it believes is not presently appealable;

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WHEREAS, the parties agree that in order to preserve Court and party resources, any

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appeal of the Court’s orders on Exemptions 5 and 7 should be made at the same time, and that if

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the FBI files a notice of appeal its production of the impacted documents should be postponed

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pending any such appeal;

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WHEREAS, the parties further agree that Plaintiffs’ motion to require the FBI to produce

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additional non-exempt information that is reasonably segregable from the information withheld

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under FOIA exemptions is now moot because Plaintiffs challenged such information withheld

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under Exemption 7, and the Court has granted Plaintiffs’ motion as to that material;

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Case No. 3:10-cv-03759-RS

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NOW THEREFORE, the parties have stipulated and agreed to a final order and entry of

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judgment in the form filed herewith, as follows:

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(1)

Defendant is ordered to produce the following information that Plaintiffs challenged in

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their motion for summary judgment: (a) the information to which Exemption 7 is applied

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in the FBI’s sampled Vaughn index, pursuant to the Court’s March 23, 2015 Order

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(ECF No. 135); (b) the information to which Exemption 5 is applied in FBI’s sampled

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Vaughn index, pursuant to the Court’s November 17, 2015 Order (ECF No. 152); and

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(c) similarly situated information that was withheld under Exemptions 5 or 7 but not listed

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in the sampled Vaughn index;

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(2)

To the extent that specific information otherwise required to be produced under

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paragraph 1 is also withheld pursuant to a FOIA exemption other than 5 or 7, the FBI is

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not required to produce that information;

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(3)

Defendant shall produce the material required under paragraphs 1(a) and 1(b) within sixty

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(60) days of entry of judgment, unless Defendant files a notice of appeal of this order, in

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which case Defendant’s obligation to produce the material is stayed pending resolution of

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the appeal;

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(4)

In the event Defendant does not seek an appeal, the parties will meet and confer no later

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than two weeks after the expiration of the time to file a notice of appeal to establish a

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production schedule for the material required under paragraph 1(c);

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(5)

Defendant’s motion for summary judgment on information withheld under Exemption 2 is

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granted, as Plaintiffs do not challenge the application of the exemption to the applicable

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documents;

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(6)

Plaintiffs’ motion to compel production of additional non-exempt information that is

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reasonably segregable from the information withheld a FOIA exemption is denied as

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moot, as Plaintiffs challenged segregability only as to information withheld under

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Exemption 7, and the Court has now ordered the production of the applicable information

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withheld under Exemption 7; and

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Case No. 3:10-cv-03759-RS

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(7)

The Court shall retain jurisdiction over this matter to enforce, if necessary, its order,

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including to adjudicate any dispute related to the application of the Court’s orders to

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similarly-situated documents not included in the sampled Vaughn index or to issues of

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segregability that may arise following an appeal.

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Respectfully submitted this 7th day of December, 2015

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By:

/s/ Lynn Y. Lee
Lynn Y. Lee

BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
MARCIA BERMAN
Assistant Branch Director
LYNN Y. LEE
Trial Attorney
U.S. Department of Justice, Civil Division
Federal Programs Branch
P.O. Box 883
Washington, DC 20530
[phone]
[phone] (fax)
[e-mail]
Attorneys for Defendants

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/s/ Angela E. Kleine
Angela E. Kleine
SOMNATH RAJ CHATTERJEE
[e-mail]
ANGELA E. KLEINE
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105
Telephone: [phone]
Facsimile: 415.268.7200
JULIA HARUMI MASS
[e-mail]
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN
CALIFORNIA, INC.
39 Drumm Street
San Francisco, California 94111
Telephone: [phone]
Facsimile: 415.255.8437
NASRINA BARGZIE
[e-mail]
ASIAN LAW CAUCUS
55 Columbus Avenue
San Francisco, California 94111
Telephone: [phone]
Facsimile: 415.896.1702

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Attorneys for Plaintiffs

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Case No. 3:10-cv-03759-RS

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Dated:

12/8/15
_____________________
HON. RICHARD SEEBORG

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United States District Judge

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Case No. 3:10-cv-03759-RS

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ATTESTATION OF E-FILED SIGNATURE
I, Angela Kleine, am the ECF User whose ID and Password are being used to file this

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Joint Case Management Conference Statement. In compliance with General Order 45, X.B., I

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hereby attest that Lynn Y. Lee, Julia Harumi Mass, Nasrina Bargzie, and S. Raj Chatterjee have

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concurred in this filing.

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Dated: December 7, 2015

By:

/s/ Angela Kleine

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Case No. 3:10-cv-03759-RS