CUBAN v. SECURITIES AND EXCHANGE COMMISSION

Filing 54

ORDER finding as moot 52 Motion for Partial Summary Judgment. For the reasons explained in the attached Order, it is hereby ORDERED that all of the plaintiff's claims concerning the documents listed in the defendant's Third Revised Vaughn Index and all of the plaintiff's claims with respect to the adequacy of the defendant's search for documents in Categories 11, 12, and 13 are hereby DISMISSED AS MOOT. It is further ORDERED that the defendant shall submit a status report regarding its processing of the potentially responsive records remaining in its FIFO track no later than thirty days after the entry of this Order. Signed by Judge Reggie B. Walton on 12/8/2011. (lcrbw2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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MARK CUBAN,
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Plaintiff,
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v.
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Civil Action No. 09-0996 (RBW)
SECURITIES AND EXCHANGE
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COMMISSION,
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Defendant.
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____________________________________)
ORDER
This case is currently before the Court on the defendant's October 13, 2011 Renewed
Motion for Partial Summary Judgment Pursuant to July 1, 2011 Court Order ("10/13/2011 Def.'s
SJ Mot."). 1 Additionally, two issues that arose earlier in the course of this litigation, which were
not addressed in the defendant's motion, remain before the Court. They are: (1) the status of
records that are potentially responsive to the plaintiff's Freedom of Information Act ("FOIA")
request that remain in the defendant's first in, first out ("FIFO") track; 2 and, (2) the plaintiff's
offer to cover the costs of expedited review for these documents. See Plaintiff Mark Cuban's
Response to the SEC's Renewed Motion for Partial Summary Judgment ("Pl.'s 11/28/2011
Resp.") at 2-3.

1

The facts giving rise to this litigation were set forth in detail in the Court's September 22, 2010
Memorandum Opinion. See Cuban v. S.E.C., 744 F. Supp. 2d 60, 66-68 (D.D.C. 2010).

2

The defendant "processes FOIA requests on a 'first in, first out' ('FIFO') basis, where they are reviewed in
the order in which they were received." See October 20, 2010 Status Report, ¶ 3.

1

First, in its brief in support of its renewed motion for summary judgment, Brief in
Support of Defendant's Renewed Motion for Partial Summary Judgment ("Def.'s Mem."), the
defendant represents that it "has determined that portions of many of the documents that remain
at issue can be released," and that it is thus producing those portions of those documents. Def.'s
Mem. at 2. It then argues that the documents still at issue in this case—or portions thereof—
have been properly withheld pursuant to Exemptions 5, 6, and 7(c) of the FOIA, id. at 2-7, and
that its searches for records responsive to the defendant's request were adequate, id. at 7-8. The
plaintiff responded not by filing an opposition and cross-motion for summary judgment, as he
did in response to the defendant's previous motion for partial summary judgment, but by simply
filing a five-page response to the defendant's renewed motion for partial summary judgment.
See generally Pl.'s 11/28/11 Resp. In his response, the plaintiff observes that "[i]ndeed, the
[defendant] has now produced . . . nearly all of the documents remaining on the Third Revised
Vaughn Index." Id. at 1. The plaintiff continues: "Although Mr. Cuban believes that [the]
redactions [that] the SEC has made to some of the produced documents are completely
unwarranted, Mr. Cuban does not wish to add to the burdens already imposed on the Court by
the SEC. Therefore, . . . Mr. Cuban will not present any further argument with regard to the
remaining redactions or ask the Court to address them." Id. at 1-2. The plaintiff also indicates
that he will not "present any further argument regarding the SEC's searches with respect to
[Categories 11, 12, and 13] or . . . ask the Court to address the continuing inadequacies in the
SEC's searches." Id. at 2. Accordingly, the Court will dismiss as moot (1) the plaintiff's claims
concerning the documents listed on the Third Revised Vaughn Index, Def.'s Mot., Exhibit 22
(Third Revised Vaughn Index) at 1-16, which the defendant has produced with reactions, and (2)

2

the plaintiff's claims regarding the adequacy of the defendant's searches for records responsive to
his Category 11, 12, and 13 requests.
Next, on January 31, 2011, the defendant represented to the Court that it would "try to the
best of its ability to commence reviewing the 107 boxes of materials, including 2.2 GB of
electronic data," that has been requested by the plaintiff, by September 2011. Defendant
Securities and Exchange Commission's Supplemental Status Report Regarding Plaintiff's
Proposal to Pay for Search ("Def.'s 1/31/11 Status Report") at 2. As the defendant has provided
no information on whether it has yet begun reviewing this material that remains in its FIFO
track, the Court will Order the defendant to file a status report on this material within thirty days
of the entry of this Order.
Finally, because it is not an issue over which this Court has any authority, the Court will
not attempt to decide one way or the other whether the defendant should be compelled to accept
the plaintiff's offer to cover the costs of an expedited review of the potentially responsive
documents remaining in the defendant's FIFO review track. Fortunately, the FOIA does not
direct courts to order agencies how to respond to FOIA requests; rather, the Court's role in the
"peculiar nature [of judicial review] of the FOIA," Summers v. U.S. Dep't of Justice, 140 F.3d
1077, 1080 (D.C. Cir. 1998), is to provide a check on agency claims regarding the adequacy of
its searches or the propriety of agency reliance on FOIA exemptions to withhold responsive
records. The Court thus agrees with the defendant that the plaintiff "does not—and cannot—
contend that [his offer to pay for expedited review] is a legal issue for the Court to decide."
Def.'s 1/31/11 Status Report at 1. Therefore, the Court will not comment on the plaintiff's
proposal.
Accordingly, it is hereby
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ORDERED that all of the plaintiff's claims concerning the documents listed in the
defendant's Third Revised Vaughn Index and all of the plaintiff's claims with respect to the
adequacy of the defendant's search for documents in Categories 11, 12, and 13 are hereby
DISMISSED AS MOOT. It is further
ORDERED that the defendant shall submit a status report regarding its processing of the
potentially responsive records remaining in its FIFO track no later than thirty days after the entry
of this Order.
SO ORDERED this 8th day of December, 2011.
REGGIE B. WALTON
United States District Judge

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