King & Spalding, LLP v. U.S. Dep't of Health & Human Servs.

• Decision Date: 24 July 2019
• Docket Number: Case No. 16-cv-01616 (APM)
• Citation: 395 F.Supp.3d 116
• Court: U.S. District Court — District of Columbia
• Parties: KING & SPALDING, LLP, Plaintiff, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

395 F.Supp.3d 116

KING & SPALDING, LLP, Plaintiff,

v.U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

Case No. 16-cv-01616 (APM)

United States District Court, District of Columbia.

Signed July 24, 2019

John C. Richter, King & Spalding, LLP, Washington, DC, for Plaintiff.

Jeremy S. Simon, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

Amit P. Mehta, United States District Judge

I. INTRODUCTION

In April 2016, Plaintiff King & Spalding LLP submitted Freedom of Information Act ("FOIA") requests to the U.S. Department of Health and Human Services ("HHS") and the U.S. Department of Justice ("DOJ") (collectively "Defendants"), seeking documents provided to the government by any person or entity concerning Abiomed, Inc. Abiomed is a medical device company represented by Plaintiff. The requests sought records for the period between January and October 2012.

The court already has ruled on two prior rounds of summary judgment briefings. The only remaining questions are: (1) whether the government must disclose the name of the law firm that represented an anonymous source who, through counsel, submitted information about Abiomed to the government, and (2) whether the court should reconsider its prior ruling permitting the government to withhold the names of the attorneys who represented the source.

Before the court is Defendants' Motion for Summary Judgment as to the first question and Plaintiff's combined Cross Motion for Summary Judgment as to the first question and Motion for Reconsideration as to the second. For the following reasons, Defendants' Motion is denied, and Plaintiff's Motion is granted in full.

II. BACKGROUND

The court described the facts of this matter in its September 2018 decision, so it does not repeat them here at length. See generally King & Spalding LLP v. United States HHS , 330 F. Supp. 3d 477 (D.D.C. 2018) [hereinafter King & Spalding II ]. To summarize, Plaintiff King & Spalding LLC submitted three FOIA requests in April 2016, seeking all documents received by either HHS or DOJ from any outside person or entity (except Abiomed) concerning Abiomed, between January 1 and October 31, 2012. Id. at 483. The request followed a 2012 investigation by the U.S. Attorney's Office for the District of Columbia of Abiomed centered on alleged off-label marketing of a medical device. Id. at 482. The investigation ended three years later without enforcement action. Id. The investigation may have commenced upon information provided from an anonymous source who disclosed records through a private attorney. Id. at 482–83. Abiomed suspects that Maquet, one of its competitors, was the source. Id. at 483.

Defendants initially released over 370 pages and withheld 67 pages in full in response to Plaintiff's requests. Id. at 484. Defendants justified these withholdings under FOIA Exemptions 6 and 7(C), which concern the privacy interests of individuals identified in agency records, and 7(D), which protects confidential sources. Id. Defendants made a supplemental release in April 2017 of 46 pages in full and 33 pages in part. Id. Defendants again justified the redactions under Exemptions 6, 7(C), and 7(D). Id. The government also relied on Exemptions 4 and 5 to withhold certain information from attachments to a produced email, which Plaintiff ultimately would not challenge. Id. at 485 ; Plaintiff's Combined Cross Mot. for Summ. J. and Mot. for Reconsideration, ECF No. 52 [hereinafter Pl.'s Mot.]; Pl.'s Facts, ECF No. 52 at 3–9 [hereinafter Pl.'s Facts], ¶¶ 25–26.

Plaintiff filed its Complaint on August 9, 2016. See Compl., ECF No. 1. On September 6, 2017, the court denied both parties' motions for summary judgment without prejudice and held that the government had not sufficiently justified its withholdings under Exemptions 7(C) and (D). See generally King & Spalding, LLP v. United States Dep't of HHS , 270 F. Supp. 3d 46 (D.D.C. 2017) [hereinafter King & Spalding I ]. The court stated that "the applicability of both exemptions may turn on whether the source that supplied the Government with information about Abiomed is an entity or an individual," and found that the government's failure to state whether its anonymous source was an individual or entity prevented the court from "evaluat[ing] the propriety of nondisclosure." Id. at 48–49. The court provided Defendants an opportunity to supplement the record.

On September 22, 2017, Defendants advised the court that they had no additional information to offer as to whether the confidential source was an individual or entity. See Joint Status Report, ECF No. 29, ¶ 5. Nevertheless, Defendants stated that they intended to renew their summary judgment motion. See id. ¶¶ 7–9.

The court ruled on the parties' second round of cross-motions for summary judgment on September 7, 2018. See generally King & Spalding II , 330 F. Supp. 3d 477. The court held "that Defendants have failed to justify their invocation of Exemption 7(D)," and ruled in favor of Plaintiffs with regard to the 67 pages withheld under that exemption. Id. at 496. With respect to Exemptions 6 and 7(C), Defendants narrowed their argument, asserting that these exemptions were only in support of its withholding of the names of the attorney¹ and the law firm representing the confidential source. Id. at 486, 488. The court granted summary judgment to Defendants as to the attorney's name. Focusing on Exemption 7(C), the court applied a "categorical rule permitting an agency to withhold information identifying private citizens mentioned in law enforcement records, unless disclosure is ‘necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity.’ " id. at 497 (quoting Schrecker v. U.S. Dep't of Justice , 349 F.3d 657, 661 (D.C. Cir. 2003) ). The court reasoned that, because Plaintiff had not "come forward with ‘compelling evidence’ that would confirm or refute allegations of illegal agency activity, Plaintiff cannot overcome application of the categorical rule in this case." Id. at 497–98.

With regard to the law firm, the court found that Defendants had not carried their burden to show that disclosure would risk identifying the lawyer. (As an entity, neither Exemption 7(C) nor 6 applied directly to the law firm.). Id. at 499–500. The court nevertheless allowed Defendants to submit additional facts to support their assertion that the disclosure of the firm's name could "reasonably be expected to constitute an unwarranted invasion of the lawyer's personal privacy." Id. at 500. Defendants did so on October 9, 2018, providing an in camera submission to the court. See ECF No. 40. Afterwards, the parties met and conferred, narrowing the remaining issues. See Plaintiff's Status Report, ECF No. 46, ¶¶ 6–9.

Both parties now move for summary judgment as to the non-disclosure of the law firm's name. See Defendants' Second Renewed Mot. for Summ. J., ECF No. 51 [hereinafter Defs.' Mot.]; Pl.'s Mot. at 16–20. Plaintiff also asks the court to reconsider its prior ruling upholding Defendants' withholding of the attorneys' names under Exemption 7(C). See Pl.'s Mot. at 7–15.

III. DISCUSSION

A. Motion for Reconsideration as to Attorneys' Names

The court begins with Plaintiff's motion asking the court to reconsider its prior ruling that Defendants properly withheld the names of the confidential source's lawyers under Exemption 7(C). Federal Rule of Civil Procedure 54(b) applies to any order that "adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties" and provides that such an order "may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b). Relief under Rule 54(b) may be granted "as justice requires." See Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc. , 630 F.3d 217, 227 (D.C. Cir. 2011). "Courts in this district interpret that abstract phrase narrowly and will grant a motion to reconsider ‘only when the movant demonstrates: (1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error in the first order.’ " Bernier v. Trump , 299 F. Supp. 3d 150, 156 (D.D.C. 2018) (quoting Ferrer v. CareFirst, Inc. , 278 F. Supp. 3d 330 (D.D.C. 2017) ).

In its previous decision, the court applied a categorical withholding rule based on the D.C. Circuit's decision in SafeCard Services v. SEC . See King & Spalding II , 330 F.3d at 497 (citing SafeCard Servs. , Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991) ). SafeCard permits agencies to withhold personal identifying information mentioned in law enforcement records under Exemption 7(C), unless disclosure is necessary to "confirm or refute compelling evidence that the agency is engaged in illegal activity." Id. at 497. Because the court found that Plaintiff had not provided evidence that "warrant[s] a belief by a reasonable person that the alleged Government impropriety might have occurred," the court applied the categorical rule to permit the agency to withhold the lawyers' names. Id. at 499 (quoting Nat'l Archives & Records Admin. v. Favish , 541 U.S. 157, 174, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) ).

Plaintiff contends that the court "painted with too broad a brush" by applying SafeCard 's "categorical rule." Pl.'s Mot. at 9. The "categorical rule" is inapt in this case, Plaintiff maintains, because that approach fails to account for the D.C. Circuit's pre-SafeCard decision in Washington Post v. U.S. Department of Justice , 863 F.2d 96 (D.C. Cir. 1988). In that case, Plaintiff argues, the court held that "Exemption 7(C) protects a specific category of privacy interests" that does not include "business and professional activities," such as those at issue here. Pl.'s Mot. at 10. (citing Washington Post , 863 F.2d at 100 ). Defendants, for their part, counter that in the thirty years since ...