WIDI v. MCNEIL et al
AMENDED ORDER ON MOTION FOR RECONSIDERATION AND RENEWED MOTION FOR SUMMARY JUDGMENT, granting 366 Motion for Summary Judgment; granting in part and denying in part 370 Motion for Reconsideration. By JUDGE JOHN A. WOODCOCK, JR. By JUDGE JOHN A. WOODCOCK, JR. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVID J. WIDI, JR.,
PAUL MCNEIL, et al.,
AMENDED1 ORDER ON MOTION FOR RECONSIDERATION AND
RENEWED MOTION FOR SUMMARY JUDGMENT
The Court issues a judgment on Count XVIII, the Freedom of Information Act
and Privacy Act count, of the Plaintiff’s Second Amended Complaint.
The Court extensively described the background of the pending motions in
multiple earlier orders in this case. Am. Order Den. Defs.’ Mot. to Dismiss Count XIV,
Den. Defs.’ Mot. for Summ. J. as to Count XIV, and Den. Pl.’s Cross-Mot. for Summ.
J. as to Count XIV (ECF No. 173)2; Summ. J. Order on Count XVIII (ECF No. 360);
In its July 19, 2017 Order, the Court erroneously stated that Mr. Widi did not respond to the
Government’s filing on its renewed motion for summary judgment on whether the Government was
entitled to withhold EOSUA Document 35. Order on Mot. for Recons. and Renewed Mot. for Summ. J.
at 5 (ECF No. 465). On July 28, 2017, Mr. Widi notified the Clerk’s Office that he had, in fact,
responded. See Reply to EOUSA’s Resp. to Order on Renewed Mot. for Summ. J. (ECF No. 451). The
Court amends its original Order to incorporate Mr. Widi’s response. Once alerted by Mr. Widi, the
Court reviewed Mr. Widi’s response and has described the response and the Court’s analysis in this
amended order. For the reasons set forth in this amended order, Mr. Widi’s response does not alter
the conclusions in the original Order.
As the Court noted in its August 16, 2016 Order, Mr. Widi moved the Freedom of Information
Act and Privacy Act claims from Count XIV to Count XVIII in his Second Amended Complaint. Summ.
J. Order on Count XVIII at 2 (“When the Court granted leave to amend the Amended Complaint on
February 11, 2015, the FOIA/PA claim transferred from Count XIV to XVIII”).
Order on Mot. for Recons. at 1–2 (ECF No. 435) (Recons. Order); Order on Renewed
Mot. for Summ. J. on Count XVIII (ECF No. 437) (Renewed Order).
The Court’s May 8, 2017 Orders left three loose ends: (1) whether the attorney
work product privilege applied to Executive Office of the United States Attorneys
(EOUSA) Documents 14 and 18; (2) whether the documents underlying EOUSA
Document 25 met Exemption 7(C); and (3) the timing behind a January 19, 2011
memorandum of a telephone conversation between Assistant United States Attorney
Darcie McElwee (AUSA McElwee) and Attorney Peter Rodway. Recons. Order at 12–
16; Renewed Order at 13–15, 17.
Following the Court’s May 8, 2017 Orders, the EOUSA filed two responses, the
first on May 16, 2017, EOUSA’s Resp. to Order on Renewed Mot. for Summ. J. (ECF
No. 438) (Renewed Resp.), and the second on May 17, 2017. EOUSA’s Resp. to Order
on Mot. for Recons. (ECF No. 435) (ECF No. 441) (Recons. Resp.). On June 8, 2017,
Mr. Widi filed a reply to the EOUSA’s response to the Order on the renewed motion
for summary judgment. Reply to EOUSA’s Resp. to Order on Renewed Mot. for Summ.
J. (ECF No. 451) (Widi Renewed Reply). On June 12, 2017, Mr. Widi filed a reply to
the EOUSA’s response to the Order on the motion for reconsideration. Reply to
EOUSA’s Resp. to Order on Mot. for Recons. (ECF No. 454) (Widi Recons. Reply).
THE MAY 8, 2017 ORDERS
As noted, the Court isolated three remaining issues in its May 8, 2017 Orders:
(1) whether the attorney work product privilege applied to EOUSA Documents 14 and
18; (2) whether the documents underlying EOUSA Document 25 meet Exemption
7(C); and (3) the timing behind a January 19, 2011 memorandum of a telephone
conversation between AUSA McElwee and Attorney Peter Rodway. Recons. Order at
12–16; Renewed Order at 13–15, 17.
EOUSA Documents 14 and 18
The EOUSA filed a Vaughn Index on June 30, 2015. Defs.’ Mot. for Summ. J.,
Attach. 3, Third Decl. of John F. Boseker (ECF No. 305). The EOUSA described
Document 14 as “E-Mails from AUSA to AUSA . . . regarding Widi evidence on
firearms and forfeiture with list of those seized and date, containing handwritten
notations.” Id. at 20. The EOUSA described Document 18 as “Letters (2) from AUSA
to ATF Counsel . . . regarding identified trial witness evidence in connection with
both hearing date and trial date.” Id. at 21. In its August 16, 2016 Order, the Court
concluded that the attorney work product privilege applied to both documents.
Summ. J. Order on Count XVIII at 57–58 (ECF No. 360). The Court wrote that it
was satisfied that “Documents 14 and 18 were prepared under the direction of an
attorney in contemplation of litigation, and therefore entitled to Exemption 5.” Id. a
On October 11, 2016, Mr. Widi moved for reconsideration based on the
argument that the EOUSA did not establish whether the documents were segregable.
Mot. for Recons. of Summ. J. Order and Obj. to EOUSA’s Renewed Mot. for Summ. J.
on Count XVIII at 26 (ECF Nos. 370, 371) (Pl.’s Mot. for Recons.; Pl.’s Opp’n). In its
May 8, 2017 Order on the motion for reconsideration, the Court expressed skepticism
about whether ordering the EOUSA to perform a segregability analysis was going to
be productive, but the Court agreed that First Circuit authority required such an
analysis. Recons. Order at 12–14.
EOUSA Document 25: Character Reference Letters
In its May 8, 2017 Order on the motion for reconsideration, the Court expressed
some confusion about the exact nature of the documents underlying the claimed
exemption. Id. at 14–16. Assuming the documents were character letters that had
been introduced into the court record at Mr. Widi’s sentencing hearing, the Court was
perplexed about why the EOUSA was withholding the documents and why Mr. Widi
did not have independent access to them. Id.
EOUSA Document 35: AUSA Handwritten Notes
In its Order on the renewed motion for summary judgment, the Court was
unable to conclude whether the AUSA’s handwritten notes dated January 19, 2011,
were related to any ongoing issues in the Government’s case against Mr. Widi because
the timing of the notes seemed odd. Renewed Order at 13–15.
THE PARTIES’ POSITIONS
The EOUSA’s Responses
Regarding EOUSA Documents 14 and 18, the EOUSA responded that it had
performed a segregabilty analysis of those documents, and it concluded that neither
document was reasonably segregable. Recons. Resp. at 1–2. In support of its position,
the EOUSA attached a sworn declaration from John F. Boseker, Attorney Advisor,
EOUSA, in which Mr. Boseker says that the only information that would be
segregable and subject to release would be the words “Okay, thanks!” in EOUSA
Document 14. Id., Attach. 1 (Fifth Decl. of John F. Boseker) (Fifth Boseker Decl.).
Regarding EOUSA Document 25, the EOUSA conceded that those documents
would be subject to release and promised to do so upon issuance of a final judgment.
Id. at 1–2.
Regarding EOUSA Document 35, AUSA Darcie McElwee, the author of the
January 19, 2011 memorandum, confirmed that the reason she wrote the
memorandum in January of 2011 was that Attorney Peter Rodway had contacted her
at that time to let her know that Mr. Widi had accused him of misconduct in
connection with the Government’s efforts to force him to undergo a tuberculosis test.
Renewed Resp. at 1–3. AUSA McElwee was also aware that Mr. Widi had made a
similar claim of misconduct against the Government. Id. at 2. AUSA McElwee
decided to reduce her memory of an earlier conversation with Mr. Rodway as well as
her January 2011 conversation with him in anticipation of a potential lawsuit by Mr.
In view of these circumstances, the EOUSA contended that AUSA
McElwee’s handwritten notes “clearly constitute attorney work product that is
exempt from disclosure under Exemption 5 to FOIA.” Id. at 2–3.
David Widi’s Response
In his response to the Government’s filing on the motion for reconsideration,
Mr. Widi again claimed that because the Government acted in bad faith in responding
to his FOIA requests, the Court should disregard Attorney Boseker’s sworn
declaration and require the Government to produce the actual documents for review.
Widi Recons. Reply at 1–5. He also objected to the EOUSA’s decision to wait to release
Document 25 “in conjunction with the Court’s final determination on all of the records
remaining at issue.” Id. at 5–6.
Mr. Widi also argued that the Court should order disclosure of EOUSA
Document 35 because the work product doctrine does not protect the document. Widi
Renewed Reply at 1–2. He asserted that AUSA McElwee could not have created the
document “because of” the prospect of litigation because she could not know whether
Mr. Widi was going to bring a lawsuit. Id. Mr. Widi was dubious of AUSA McElwee’s
claim that she memorialized her conversations with Mr. Rodway in anticipation of
litigation because such a claim is easy to make after the fact. Id. at 1.
Alternatively, he argued that even if the work product doctrine applies, “FOIA
Exemption 5 does not permit an agency to withhold factual material that can be
segregated from an attorney’s thought processes.” Id. at 2 (citing Maine v. U.S. Dep’t
of Interior, 124 F. Supp. 728, 744 (D. Me. 2001)). He contended that AUSA McElwee
never claimed that Document 35 revealed her thought processes. Id. Rather, he
argued that Document 35 constitutes “factual attorney work-product” that is “not
afforded the protection of Exemption 5” and should therefore be released. Id.
EOUSA Documents 14 and 18
Based on the sworn declaration of Attorney John Boseker, the Court concludes
that, consistent with Church of Scientology International v. United States Department
of Justice, 30 F.3d 224, 236 (1st Cir. 1994), the EOUSA has performed a segregability
analysis on EOUSA Documents 14 and 18 and has determined that the only nonredactable portion of EOUSA Document 14 would be “okay thanks” and that EOUSA
Document 18 is properly withheld in full. Fifth Boseker Decl. at 2–3.
Although Mr. Widi earnestly contends that the EOUSA acted in bad faith in
responding to his FOIA/PA requests, the Court does not agree. The fact that Mr. Widi
was successful in pressing some of his claims for release of documents is no more
evidence of the EOUSA’s bad faith than the fact that the EOUSA was successful in
deflecting some of his arguments in favor of release is evidence of Mr. Widi’s bad faith.
Unlike the cases that Mr. Widi cited, the Court in this instance does not suspect the
EOUSA of engaging in bad faith behavior in responding to Mr. Widi’s FOIA/PA
Nor is it surprising that a two-page email between an AUSA and a paralegal
within the U.S. Attorney’s Office regarding the administrative forfeiture of firearms
and two, two-page letters between an AUSA and an Associate Counsel with the
Bureau of Alcohol, Tobacco, Firearms, and Explosives seeking personal information
about two law enforcement witnesses would be subject to non-disclosure under the
attorney work product privilege and would not be segregable.
In sum, the Court accepts the sworn declaration of Attorney John Boseker and
concludes that EOUSA Documents 14 and 18 are not subject to disclosure.
EOUSA Document 25
In its response, the EOUSA conceded that the documents comprising EOUSA
Document 25 are subject to disclosure, and the EOUSA promised to release these
documents “in conjunction with the Court’s final determination on all of the records
remaining at issue.” Fifth Boseker Decl. at 1. The Court is not clear why the EOUSA
would withhold the release of the character letters until the Court has finally ruled
on all remaining records requests, but it does not matter because with this ruling, the
Court is issuing a final ruling on Count XVIII, the FOIA/PA count, and under its own
terms, the EOUSA will be required to release these documents forthwith.
EOUSA Document 35
The Court reviewed and accepts the sworn declaration of AUSA Darcie
McElwee. Renewed Resp., Attach. 1, Decl. of Darcie N. McElwee at 1–4. Based on
her sworn declaration, the Court easily concludes that AUSA McElwee’s handwritten
notes were created in anticipation of litigation. Therefore, the Court resolves that
the handwritten notes are attorney work product and are not subject to disclosure
under Exemption 5. The Court does not share Mr. Widi’s skepticism about the
accuracy of AUSA McElwee’s sworn declaration, and the Court accepts the contents
of her declaration as true.
Mr. Widi cites caselaw from this District for the proposition that Exemption 5
does not permit an agency to withhold factual materials that can be segregated from
an attorney’s thought processes. Widi Renewed Reply at 2 (citing Maine v. U.S. Dep’t
of Interior, 124 F. Supp. 728, 744 (D. Me. 2001)). As an initial matter, the First Circuit
Court of Appeals vacated this holding. Maine v. U.S. Dep’t of Interior, 298 F.3d 60,
70 (1st Cir. 2002). Even assuming the validity of the holding, however, the Court
infers, based on the circumstances of the telephone call and the handwritten
memorandum, that the conversation and memorandum contained attorney work
product within the meaning of Exemption 5. The topic of the memorandum—a
potential lawsuit by Mr. Widi; the participants in the memorialized conversation—
two attorneys; the length of the memorandum—only half a page; the timing of the
memorandum—contemporaneously with the January conversation and within two
months of the November conversation; and the fact that Mr. Widi did, in fact, file a
lawsuit in a relatively short time after the memorandum all convince the Court that
the document is properly withheld from disclosure.
The Court GRANTS in part and DENIES in part David J. Widi, Jr.’s Motion
for Reconsideration of Summary Judgment Order (ECF No. 370), and the Court
GRANTS the Executive Office of the United States Attorneys’ Renewed Motion for
Summary Judgment on Count XVIII (ECF No. 366). Specifically, the Court GRANTS
so much of David J. Widi, Jr.’s motion for reconsideration as relates to the character
letter documents underlying EOUSA Document 25 and ORDERS the EOUSA to
produce those documents to David J. Widi, Jr. forthwith. The Court DENIES so much
of David J. Widi, Jr.’s motion for reconsideration as relates to the documents
underlying EOUSA Documents 14, 18, and 35. All disclosure issues having been fully
and finally resolved, the Court ORDERS JUDGMENT in part on behalf of David J.
Widi, Jr. and in part on behalf of the Executive Office of the United States Attorneys.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 31st day of July, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?