Project on Predatory Lending of the Legal Servs. Ctr. of Harvard Law Sch. v. U.S. Dep't of Justice, Civil Action No. 17-210

• Decision Date: 09 July 2018
• Docket Number: Civil Action No. 17-210
• Citation: 325 F.Supp.3d 638
• Parties: PROJECT ON PREDATORY LENDING OF the LEGAL SERVICES CENTER OF HARVARD LAW SCHOOL, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

325 F.Supp.3d 638

PROJECT ON PREDATORY LENDING OF the LEGAL SERVICES CENTER OF HARVARD LAW SCHOOL, Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 17-210

United States District Court, W.D. Pennsylvania.

Signed July 9, 2018

Amanda Savage, Eileen M. Connor, Toby R. Merrill, Legal Services Center, Harvard Law School, Jamaica Plain, MA, Jennifer Bennett, Public Justice, P.C., Oakland, CA, for Plaintiff.

Christy C. Wiegand, United States Attorney's Office, Pittsburgh, PA, Peter J. Phipps, U.S. Department of Justice, Civil Division, Federal Programs, Washington, DC, for Defendant.

Memorandum Opinion

Nora Barry Fischer, United States District Judge

I. Introduction

This action is brought by the Project on Predatory Lending of the Legal Services Center of Harvard Law School ("the Project") against the United States Department of Justice ("the DOJ"), seeking disclosure of materials pursuant to the Freedom of Information Act, 5 U.S.C. § 552, obtained by the DOJ during discovery in a prior lawsuit. The DOJ has withheld all materials requested by the Project and thus the parties have filed cross-motions for summary judgment to resolve the dispute. (Docket Nos. 41 & 47). In addition, pending before the Court are the Project's related Motion to Strike Statements from the Affidavits submitted by the DOJ in support if its cross-motion for summary judgment (Docket No. 54), and a Motion in the Alternative for Discovery (Docket No. 52). After careful consideration of the parties' positions, and for the following reasons, the Court will grant in part and deny in part each parties' cross-motion for summary judgment. The DOJ will be ordered to produce a limited set of responsive documents deemed to be agency records. The Project's motion for discovery will be denied as moot and its motion to strike will be denied to the extent that the Court's opinion is consistent with the statements in the DOJ's affidavits.

II. Background

The underlying litigation in which the requested FOIA materials were produced was a qui tam False Claims Act action filed in the United States District Court for the Western District of Pennsylvania on April 7, 2007, against Education Management Corporation ("EDMC"). United States ex rel. Washington v. Education Management LLC , No. 2:07-cv-461 (W.D. Pa.) ("EDMC Litigation"). Pl.'s Concise Stmt. Mat. Facts, ¶ 1 (Docket No. 49); Def.'s Concise Stmt. Mat. Facts, ¶ 1 (Docket No. 43). In the EDMC Litigation, whistleblower employees of EDMC, referred to as the Relators, alleged that EDMC violated federal law by illegally paying recruiters based on the number of students they could enroll and then lying to the government in order to receive approximately $11 billion dollars in federal funding. Pl.'s Concise Stmt. Mat. Facts, ¶ 2.

The United States, as well as several other States, intervened in the lawsuit. Id. ¶ 2. The EDMC Litigation was handled within the Civil Division of United States Attorney's Office of the Western District by lead counsel Christy C. Weigand, Deputy Chief of the Civil Division, along with co-counsel, Assistant United States Attorney Colin J. Callahan. Def.'s Concise Stmt. Mat. Facts, ¶¶ 1, 28, 30. The Chief of the Civil Division, Michael A. Comber, oversaw the litigation and was settlement counsel. Id. ¶ 30. Attorneys from the McKool Smith law firm represented the Relators, and attorneys from the Jones Day law firm represented EDMC. Id. ¶ 38. On November 16, 2015, the DOJ announced that it had settled the EDMC litigation for $95.5 million dollars. Pl.'s Concise Stmt. Mat. Facts, ¶ 7; Def.'s Concise Stmt. Mat. Facts, ¶ 17.

A. Relevant Discovery during the EDMC Litigation

During the course of discovery in the EDMC Litigation, EDMC was ordered to produce documents regarding student recruitment practices and practices regarding regulatory compliance. Pl.'s Concise Stmt. Mat. Facts, ¶ 1; Def.'s Concise Stmt. Mat. Facts, ¶ 6. From October 15, 2013 through September 15, 2014, EDMC produced a voluminous amount of discovery materials to the DOJ. Def.'s Concise Stmt. Mat. Facts, ¶¶ 2, 39. The discovery materials were produced on external electronic media consisting of hard drives, with some information provided on Compact Discs and Digital Video Discs (collectively referred to as the "EDMC Hard Drive materials" or "Hard Drives"). Id. ¶ 2. The EDMC Hard Drive materials were delivered to the DOJ on a rolling basis. Id. Upon receipt by the DOJ of a Hard Drive, the DOJ immediately delivered them to counsel for the Relators at McKool Smith. Id. ¶ 7. Relators' counsel would upload the materials on the Hard Drives to the firms' electronic document review platform. Id. McKool Smith eventually returned the Hard Drives to the DOJ, where the Hard Drives themselves were stored. Id. ¶ 20.

EDMC also produced a single Compact Disc to the DOJ containing approximately 3600 pages of material from an EDMC subsidiary, the Art Institute of Dallas (the "AI Dallas CD"). Id. ¶ 10. The AI Dallas CD was produced on short notice due to potential spoliation concerns. Id. ¶ 10. The AI Dallas CD materials were uploaded into an electronic file folder within the electronic case file on Deputy Chief Christy C. Weigand's network directory. Id. ¶ 16.

B. EDMC Protective Orders

Both the EDMC Hard Drive materials and the AI Dallas CD were identified by EDMC as being subject to one or both of two protective orders addressing protection of documents containing confidential and private information entered by the EDMC District Court. Id. ¶ 4. A Confidentiality Protective Order and an Order under the Family Educational Rights and Privacy Act. Pl.'s Concise Stmt. Mat. Facts, ¶¶ 8, 10; Def.'s Concise Stmt. Mat. Facts, ¶ 4.

1. Confidentiality Protective Order

The EDMC Court entered a "Protective Order Governing Confidential Material" on April 12, 2013, which was amended on September 16, 2016 (collectively the "Confidentiality Protective Order"). EDMC Litigation, Protective Order Governing Confidential Material Apr. 12, 2013, Docket No. 257; First Amended Protective Order Governing Confidential Material, Sept. 16, 2016, Docket No. 453. "Confidential Material" in the Order is defined as "information protected by federal or state statute or regulation, personal identification information (e.g., social security number, date of birth), personnel information (e.g., employee employment records and compensation), financial, proprietary, and trade secret information that is produced by any party or third party and denominated by the producing party, in good faith, as ‘Confidential.’ " Id. ¶ 1. Pursuant to the Confidentiality Protective Order, a party's designation of information in a document as "confidential" does not constitute "a finding that information designated ‘Confidential’ actually constitutes information that may be so designated." Id. ¶ 3. The Order further provides that the "designating party shall have the burden of demonstrating that good cause exist for its designation" of confidentiality. Id. The Confidentiality Protective Order provides for the return or destruction of Confidential Material within 60 days after resolution of the action. Id. ¶ 13.

The Confidentiality Protective Order also includes a separate paragraph entitled "Disclosures to Third Parties," which provides a mechanism for disclosure of materials designated as Confidential Material, "[i]n the event of a request by a third party." Id. ¶ 7. The Order requires that the party who receives a third party request for disclosure must provide notice to the party who designated the material as confidential. Id. The designating party then is given the opportunity to file a protective order within ten days of notice to contest the production of the confidential material to the third party. Id. If no such protective order is filed, the party who received the third party request for disclosure may produce the requested material. Id.

2. FERPA Protective Order

The second protective order entered by the EDMC Court addressed concerns under the Family Educational Rights and Privacy Act ("FERPA Protective Order"). EDMC Litigation, Protective Order Governing Personally Identifiable Information from Education Records That May Be Subject to The Family Educational Rights and Privacy Act, Apr. 8, 2013, Docket No. 255. The FERPA Protective Order is specifically aimed at protecting "FERPA Confidential Material," which the Order explains is "personally identifiable information from education records subject to" FERPA. FERPA Protective Order, at 1 (preamble). According to the Order, "FERPA Confidential Material" is not to be disclosed to unauthorized individuals. Id. ¶ 5. Like the Confidentiality Protective Order, the FERPA Protective Order also provides that a party's designation of information in a document as FERPA Confidential does not constitute "a finding that information designated "FERPA Confidential" actually constitutes personally identifiable information from students' education records." Id. ¶ 8.

In addition, when FERPA Confidential Material is contained within a document that will be disclosed during litigation, the parties are to redact the FERPA Confidential Material. Id. ¶ 7. The FERPA Protective Order also provides that when FERPA Confidential Material is to be submitted to the Court or filed on the docket "the document or filing, or portions thereof containing FERPA Confidential Material [must be] placed under seal." Id. ¶ 9. The FERPA Protective Order includes additional, partially redundant, protections for the filing or use of any document in court proceedings that contain FERPA Confidential Material. Id. ¶ 11. Paragraph 11 provides that "[i]n order to protect FERPA Confidential Material to be used in any Court filings or proceedings," the party filing or using such material shall protect the confidential information by

(i) redacting confidential documents to remove personally identifiable information about students and their families, (ii) coding the documents to

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