Borda v. Executive Office for the United States Attorney

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHRISTIAN BORDA,
Plaintiff,
v.
Civil Action No. 14-229 (RDM)
U.S. DEPARTMENT OF JUSTICE,
CRIMINAL DIVISION,
Defendant.
MEMORANDUM OPINION
This matter is currently before the Court on Defendant Department of Justice’s third
motion for summary judgment, Dkt. 40, and Plaintiff Christian Borda’s motion for leave to file a
second amended complaint, Dkt. 44. Borda seeks disclosure under the Freedom of Information
Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, of records pertaining to
grand jury proceedings within this district, as well as records relating to his 2010 conviction for
conspiracy to commit a narcotics offense. For the reasons explained below, the Court will
GRANT Defendant’s motion for summary judgment and will DENY Borda leave to file a
second amended complaint.
I. BACKGROUND
The underlying facts of this case have been relayed in the Court’s previous opinions. See
Borda v. Exec. Office for the U.S. Attorney (“Borda I”), 125 F. Supp. 3d 196 (D.D.C. 2015);
Borda v. U.S. Dep’t of Justice, Criminal Division (“Borda II”), 245 F. Supp. 3d 52 (D.D.C.
2017). In brief: Borda made three FOIA requests in 2013. Borda II, 245 F. Supp. 3d at 55. The
Executive Office for United States Attorneys (“EOUSA”) did not respond, and Borda filed suit.
Id. EOUSA then conducted an initial search, revealing no responsive records, Dkt. 28-3 at 3–4
(Cunningham Decl. ¶ 8), and moved for summary judgment, Dkt. 10. Borda did not oppose
EOUSA’s motion, instead moving to amend his complaint. Dkt. 20. The Court denied the
motion for summary judgment because no other components of the Department of Justice had
conducted searches, and the Court granted Borda’s motion for leave to amend his complaint. See
Borda I, 125 F. Supp. 3d at 199–200. After Borda filed his amended complaint (adding a
challenge to an EOUSA response to a 2015 records request), Dkt. 22, EOUSA forwarded his
inquiries to the Criminal Division of the Department of Justice. The Criminal Division
performed a search, released some responsive records to Borda while withholding others, Dkt.
28-3 at 5–7 (Cunningham Decl. ¶¶ 13–17), and EOUSA then filed another motion for summary
judgment, Dkt. 28.
In Borda II, the Court substituted the Department of Justice as the proper defendant, 245
F. Supp. 3d at 52 n.1, and granted in part and denied in part the Department’s motion for
summary judgment, id. at 63. The Court held that summary judgment was inappropriate as to
one aspect of the adequacy of the search and as to whether the Department had properly applied
Exemption 7(D) to four sealed plea agreements. With respect to the former, “[t]he Department
ha[d] not adequately explained how its decision to consolidate Borda’s four FOIA requests into a
single ‘search request’—to the exclusion of at least some of Borda’s specific search terms, see
Dkt. 31 at 5—was ‘reasonably calculated to uncover all relevant documents.’” Borda II, 245 F.
Supp. 3d at 59 (quoting DeBrew v. Atwood, 792 F.3d 118, 122 (D.C. Cir. 2015)). The Court
noted in particular that “Borda’s request for ‘all grand jury records in the public domain’ related
to his case appears to sweep more broadly than the five fact-specific search terms the Criminal
Division included in its synthesized search request.” Id. The Court, accordingly, denied
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summary judgment on “this limited issue, and . . . permit[ted] the Department to file a renewed
motion that either explains how the prior search encompassed all of the relevant search terms or
indicates that the Department has engaged in a further search for possibly responsive records.”
Id. With respect to the four plea agreements, the Court held that “the Department ha[d] not
explained how Exemption 7(D)—or any other exemption—permits it to withhold the agreements
in their entirety. . . . Nor ha[d] the Department shown that it [was] impractical to segregate the
non-exempt material from the material that [was] exempt.” Id. at 62. Although the Department
had also argued that the plea agreements were exempt from disclosure because they were sealed,
the Court observed that “sealed documents are not categorically exempted from disclosure under
FOIA,” and thus, “if the Department intends to rely on the sealed-status of the records in its
renewed motion, it will need to demonstrate that the seal was issued ‘with the intent to prohibit
the [Department] from disclosing the [plea agreements] as long as the seal remains in effect.’”
Id. at 63 n.8 (quoting Morgan v. U.S. Dep’t of Justice, 923 F.2d 195, 198 (D.C. Cir. 1991)). The
Court also ordered the Department to produce the disputed plea agreements for in camera
review. Id. at 63.
On June 9, 2017, the Department moved for summary judgment (the third such motion
filed by the government in this case) and produced (1) a supplemental declaration describing the
additional search efforts undertaken in response to Borda II and the rationale for withholding in
full the eleven responsive documents those efforts produced; (2) correspondence with the district
court judges who sealed the plea agreements that previously had been withheld in full; and (3)
the plea agreements themselves for in camera review. See Dkt. 40. The Court then advised
Borda of the consequences of failing to respond to the motion for summary judgment and
ordered him to file a response on or before July 24, 2017. See Dkt. 41. Borda moved for an
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extension of time to respond on July 28, 2017, Dkt. 43, which the Court granted, Minute Order
(Aug. 3, 2017). On August 17, 2017, Borda filed a second motion for leave to amend his
complaint. See Dkt. 44. The Court again instructed Borda of the consequences of not
responding to Defendant’s motion for summary judgment and specifically “cautioned” him “that
he should not assume that his [motion to amend] will be granted.” Minute Order (Sept. 5, 2017).
Borda still has not filed a response.
II. LEGAL STANDARD
A. Motion to Amend
A party may amend its complaint “once as a matter of course within . . . 21 days after
serving it, . . . 21 days after service of a responsive pleading[,] or 21 days after service of a
motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1). Thereafter, a
party may only amend “with the opposing party’s written consent or the court’s leave.” Fed R.
Civ. P. 15(a)(2). Although courts “should freely give leave [to amend] when justice so requires,”
id., that latitude does not extend to cases involving “undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of
amendment,” Foman v. Davis, 371 U.S. 178, 182 (1962).
B. Motion for Summary Judgment
The Freedom of Information Act is premised on the notion that an informed citizenry is
“vital to the functioning of a democratic society, needed to check against corruption and to hold
the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1978). It thus mandates that an agency disclose records on request, unless they fall within
one of nine exemptions. “These exemptions are explicitly made exclusive and must be narrowly
4
construed.” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and
citation omitted). As relevant here, Exemption 3 protects information “specifically exempted
from disclosure by statute . . . if that statute . . . requires that the matters be withheld from the
public in such a manner as to leave no discretion on the issue; or . . . establishes particular
criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C.
§ 552(b)(3). Exemption 5 covers “inter-agency or intra-agency memorand[a] or letters that
would not be available by law to a party other than an agency in litigation with the agency.” 5
U.S.C. § 552(b)(3).
FOIA cases are typically resolved on motions for summary judgment under Federal Rule
of Civil Procedure 56. See, e.g., Shapiro v. U.S. Dep’t of Justice, 153 F. Supp. 3d 253, 268
(D.D.C. 2016). To prevail on a summary judgment motion, the moving party must demonstrate
that there are no genuine issues of material fact and that he or she is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In
a FOIA action, the agency may meet its burden by submitting “relatively detailed and non-
conclusory” affidavits or declarations, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)), and an
index of the information withheld, Vaughn v. Rosen, 484 F.2d 820, 827–28 (D.C. Cir. 1973);
Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). The Court reviews the
agency’s decision de novo, and the agency bears the burden of sustaining its action. 5 U.S.C.
§ 552(a)(4)(B).
III. ANALYSIS
The Court first addresses Borda’s motion to amend his complaint. It then considers the
adequacy of Defendant’s supplemental search, before turning to the decision to withhold in full
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both the four plea agreements previously at issue and the eleven responsive documents located in
the course of the Department’s supplemental search. Although Borda has failed to respond to
Defendant’s motion for summary judgment, the Court “must always engage in the analysis
required by Rule 56 before acting on a motion for summary judgment.” Winston & Strawn, LLP
v. McLean, 843 F.3d 503, 506 (2016).
A. Motion to Amend
Borda filed his original complaint on February 18, 2014. Dkt. 1 at 1. That complaint
challenged EOUSA’s response to three records requests submitted on November 4, November 5,
and November 20, 2013. Borda I, 125 F. Supp. 3d at 197. After EOUSA moved for summary
judgment, Dkt. 10, Borda sought leave to amend his complaint on June 5, 2015, Dkt. 20 at 1.
The Court granted Borda’s motion on August 28, 2015. Borda I, 125 F. Supp. 3d at 196. The
amended complaint added a claim contesting EOUSA’s response to a records request Borda had
filed on March 24, 2015. Borda II, 245 F. Supp. 3d at 55 n.2. On August 17, 2017, Borda filed
the motion to amend currently pending before the Court. Dkt. 44 at 1. That motion seeks leave
to amend Borda’s complaint a second time to add challenges to EOUSA’s response to two
additional records requests. Id. at 2. These requests were submitted on September 27, 2014, and
October 3, 2014. Dkt. 44-1 at 15, 19; see also Dkt. 44 at 2.
The Department opposes Borda’s motion on several grounds. First, it argues that he “has
unduly delayed seeking to add his claims concerning the [a]dditional FOIA [r]equests,” because
the requests were sent in late 2014—that is, more than six months before Borda successfully
sought leave to amend his complaint in June 2015 to add a request filed after the two requests he
now seeks to incorporate. Dkt. 46 at 4. Second, the Department argues that it would be
substantially prejudiced by the proposed amendment because of the considerable work involved
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in preparing a summary judgment motion in a FOIA case, an effort that would then need to be
undertaken a fourth time. Id. at 4–5. Finally, the Department asserts that further amendment of
the complaint would significantly delay the resolution of this matter by necessitating a renewed
round of briefing despite the limited scope of the issues currently before the Court. Id. at 5.
Borda has not filed a reply brief, but his motion for leave to amend arguably anticipated
at least portions of the Department’s opposition by noting that he had referred to the September
and October 2014 FOIA requests in an earlier pleading in this litigation. Dkt. 44 at 2 (noting
references to the September and October 2014 requests at Dkt. 31 at 21–22, 24). That earlier
pleading—Borda’s opposition to the Department’s second motion for summary judgment—
argued that the Department was not entitled to summary judgment because the Department had
not shown that it had “searched for and reviewed any of the documents/information described in”
Borda’s September and October 2014 FOIA requests. Dkt. 31 at 4. At the same time, however,
Borda conceded that the first amended complaint had “failed to include any allegations of agency
non-compliance with respect to” the two FOIA requests submitted in late 2014. Id. at 13 n.2. In
light of that significant problem, Borda noted that he “intend[ed] to seek leave of the Court to file
a [s]econd [a]mended [c]omplaint in order to” address these deficiencies. Id. On March 28,
2017, the Court held that “[b]ecause Borda’s operative complaint does not challenge the
Department’s response to [the September and October 2014] FOIA requests, he cannot, for the
first time, attack the sufficiency of the Department’s response by way of his opposition brief.”
Borda II, 245 F. Supp. 3d at 57 (citing Singh v. District of Columbia, 55 F. Supp. 3d 55, 70
(D.D.C. 2014)). Borda then filed his motion for leave to file a second amended complaint on
August 17, 2017. Dkt. 44.
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“[U]ndue delay is a sufficient reason for denying leave to amend.” Atchinson v. District
of Columbia, 73 F.3d 418, 426 (D.C. Cir. 1996). Courts should, however, “generally take into
account the actions of other parties and the possibility of any resulting prejudice.” Id. A delay
of several years between the filing of the initial action and the request to amend is generally
undue and suggests prejudice to the defendant. See id. at 427 (delay of two years from filing of
action undue); Brown v. FBI, 744 F. Supp. 2d 120, 123 (D.D.C. 2010) (delay of two years
undue); Hoffmann v. United States, 266 F. Supp. 2d 27, 33 (D.D.C. 2003) (delay of five years
from time “plaintiffs concede[d] that they had at their disposal all the facts necessary to raise the
claims raised for the first time here” undue). The reason for the delay is also relevant to the
determination of whether leave to amend should be granted, Williamsburg Wax Museum, Inc. v.
Historic Figures, Inc., 810 F.2d 243, 247–48 (D.C. Cir. 1987) (affirming denial of leave to
amend when plaintiff had “offered no explanation for its tardiness” and “had abundant
opportunity” to previously “raise the issue”); James Madison Proj. v. Dep’t of Justice, 208 F.
Supp. 3d 265, 280 (D.D.C. 2016) (delay of approximately six months after being put on notice
that complaint did not reflect all requests was undue because “Plaintiff provide[d] no reason for
th[e] delay”), as is whether the proposed amendment would add additional factual allegations or
merely “clarify legal theories or make technical corrections,” Harrison v. Rubin, 174 F.3d 249,
253 (D.C. Cir. 1999) (“Although this Circuit has recognized undue delay as a basis for denying a
motion to amend, we have done so only where plaintiffs sought to add new factual allegations.”).
With respect to prejudice more specifically, whether considered independently or in concert with
the question of undue delay, courts have acknowledged that the “considerable time and effort
briefing summary judgment on the issues presented in” a FOIA case weighs against granting
leave to amend after that briefing has begun. James Madison Proj., 208 F. Supp. 3d at 280; see
8
also Sai v. Transp. Sec. Admin., 155 F. Supp. 3d 1, 7–8 (D.D.C. 2016) (denying leave to file a
supplemental pleading adding new FOIA requests because their addition “would merely result in
undue delay in the disposition of this case and would not enhance judicial efficiency”); Brown,
744 F. Supp. 2d at 123.
These considerations counsel against granting Borda leave to amend his complaint a
second time. Borda fails to offer any explanation for why the September and October 2014
FOIA requests were not included in his first amended complaint, which was filed many months
later in June 2015. Dkt. 20; see also Dkt. 31 at 13 n.2 (noting that the requests were omitted for
“unknown” reasons). Borda also does not dispute that he then possessed the records he now
submits as evidence of having submitted the September and October 2014 requests. The delay
here, moreover, is substantial. Forty-two months elapsed from when Borda filed this suit to
when he sought leave to amend the complaint for a second time to add substantial, new
allegations, and he could easily have sought leave to amend long before he did so. Indeed, even
giving him the benefit of the doubt and assuming that he was unaware that the September and
October 2014 FOIA requests were not included in his first amended complaint at the time it was
filed, he recognized that omission in his opposition to the Department’s second motion for
summary judgment, which was filed in early April 2016, and he indicated at that time that he
would seek leave to file a second amended complaint. Dkt. 31 at 13 n.2. He did not do so,
however, until August 2017—over sixteen months later. Compare Dkt. 31 at 1, with Dkt. 44
at 1.
In short, there is no reason why Borda could not have included his allegations regarding
the September and October 2014 FOIA requests in his first amended complaint; he failed to
demonstrate due diligence in seeking to correct this omission when it came to his attention; and
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adding these additional allegations now would delay the resolution of this case, which has been
pending for over four years and which has already generated three rounds of briefing on
summary judgment. Although leave to amend must be freely granted, there are limits to that
principle. Borda’s motion for leave to amend not only tests those limits, but exceeds them. See
Fed. R. Civ. P. 1 (admonishing courts and parties to apply the rules “to secure the just, speedy,
and inexpensive determination of every action”).
The Court will, accordingly, deny Borda’s motion for leave to file a second amended
complaint.
B. Motion for Summary Judgment
1. Adequacy of the Department’s Supplemental Search for Responsive Records
FOIA requires agencies to demonstrate that they have “conduct[ed] a search for the
requested records, using methods which can be reasonably expected to produce the information
requested.” Reporters Comm. for Freedom of Press v. FBI, 877 F.3d 399, 400 (D.C. Cir. 2017)
(quoting Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). To prevail on
summary judgment, an “agency must show that it made a good faith effort to conduct a search
for the requested records, using methods which can be reasonably expected to produce the
information requested.” Id. at 402 (quoting Oglesby, 920 F.2d at 68). It can meet this burden,
moreover, “by submitting ‘[a] reasonably detailed affidavit, setting forth the search terms and the
type of search performed, and averring that all files likely to contain responsive materials (if such
records exist) were searched.’” Id. (quoting Oglesby, 920 F.2d at 68). Borda has not objected to
the adequacy of the Department’s search for records, but the Court nevertheless considers
whether the Department has remedied the deficiencies in its previous searches identified in
Borda II. There, the Court held:
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The Department has not adequately explained how its decision to consolidate
Borda’s four FOIA requests into a single “search request”—to the exclusion of at
least some of Borda’s specific search terms—was reasonably calculated to uncover
all relevant documents. In particular, Borda’s request for “all grand jury records in
the public domain” related to his case appears to sweep more broadly than the five
fact-specific search terms the Criminal Division included in its synthesized search
request.
Borda II, 245 F. Supp. 3d at 59 (internal quotation marks and citation omitted).
In response, the Department expanded its search and has now submitted a revised
declaration from John E. Cunningham III, a trial attorney at the Department’s Criminal Division
assigned to the Freedom of Information Act and Privacy Act Unit. Dkt. 40-1 at 1 (Third
Cunningham Decl. ¶ 1). The Third Cunningham Declaration explains that the Department has
since returned to the set of files associated with Borda’s case and searched for any “grand jury
material specifically related to the Borda criminal investigation and prosecution.” Id. at 8 (Third
Cunningham Decl. ¶ 18). By expanding its search beyond the five fact-specific terms that it
previously employed to a search looking for any grand jury material related to Borda’s case, the
Department has remedied the sole deficiency the Court identified with respect to the search.
The Court, accordingly, concludes that the Department has conducted a search
“reasonably calculated to uncover all relevant documents,” DeBrew, 792 F.3d at 122, and will
grant Defendant’s motion for summary judgment as to the adequacy of the search.
2. Withholding in Full of Responsive Records
a. Sealed Plea Agreements
The Department’s initial search identified four plea agreements responsive to Borda’s
requests, which it refers to as Documents One, Two, Three, and Four. Dkt. 40-1 at 8–9 (Third
Cunningham Decl. ¶ 19). These plea agreements have been withheld in full on the ground that
they remain sealed by the judges who accepted the pleas. Id. at 9 (Third Cunningham Decl.
¶ 20). In Borda II, however, the Court observed that, by “repeatedly not[ing] that the four plea
11
agreements were filed under seal and are not publicly accessible court records, but provid[ing]
no information about the circumstances under which those agreements were sealed or whether,
and to what extent, the seal remains in place,” the Department failed to justify withholding the
records. 245 F. Supp. 3d at 63 n.8 (internal quotation marks and citations omitted).
As the D.C. Circuit has explained, sealed documents are not categorically exempt from
disclosure under FOIA. See Morgan v. U.S. Dep’t of Justice, 923 F.2d 195, 197 (D.C. Cir.
1991). Instead, “the proper test for determining whether an agency improperly withholds records
under seal is whether the seal . . . prohibits the agency from disclosing the records.” Id. To
determine whether “the court issued the seal with the intent to prohibit the [Department] from
disclosing the [records] as long as the seal remains in effect,” the Department may “refer[] to,
inter alia: (1) the sealing order itself; (2) extrinsic evidence, such as transcripts and papers filed
with the sealing court, casting light on the factors that motivated the court to impose the seal; (3)
sealing orders of the same court in similar cases that explain the purpose for the imposition of the
seals; or (4) the court’s general rules or procedures governing the imposition of seals.” Id. at
198. In the event that such evidence still does not reveal “the scope and effect of the seal,” an
agency “may need to seek a clarification from the court that issued the seal.” Id.
The Department has now submitted documentation from each of the judges who
originally sealed the four plea agreements regarding the status and intent of those sealing orders.
Three letters were submitted as exhibits to the Department’s renewed motion for summary
judgment. Each verifies that the relevant plea agreement remains under seal and may not be
disclosed. See Dkt. 40-1 at 70 (letter from Judge Rosemary M. Collyer stating that “Document
Three on the Criminal Division’s Vaughn Index . . . reflects a plea that necessarily remains under
seal”); id. at 72 (letter from Judge John D. Bates stating that another of the four plea agreements
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“is under court seal and that the seal prohibits the Department of Justice from disclosing the Plea
Agreement in response to a FOIA request”); id. at 74 (letter from Judge Gladys Kessler stating
that another of the four plea agreements remains “the subject of a court seal”). The final
response was issued as a sealed order by the judge who accepted the plea. Id. at 9 (Third
Cunningham Decl. ¶ 20). The Department has provided the Court with a copy of this sealed
order for in camera review, and the order verifies that the original sealing order in that case
prohibits any disclosure of the agreement. See id. (Third Cunningham Decl. ¶ 20) (stating that
the sealed order “confirmed that the . . . plea agreement[] . . . remain[s] under seal”).
Because the Department has “obtain[ed] a clarifying order [or letter] stating that the seal
prohibits disclosure” of each of the plea agreements withheld in full, the Department “is
obviously entitled to summary judgment.” Morgan, 923 F.2d at 198.
b. Documents Located in Supplemental Search
The supplemental search undertaken by the Department identified eleven additional
responsive records, labeled as Documents Five through Fifteen. Dkt. 40-1 at 8–9 (Third
Cunningham Decl. ¶ 19). Each of these documents was withheld in full. Id. (Third Cunningham
Decl. ¶ 19). Documents Five, Six, Seven, and Eight are grand jury transcripts. Id. (Third
Cunningham Decl. ¶ 19). Document Nine is a single page of handwritten notes. Dkt. 40-1 at
53–54. Document Ten is a PowerPoint presentation that was used as an exhibit before the grand
jury. Id. at 54. Documents Eleven and Twelve are memoranda produced in conjunction with
Borda’s criminal prosecution. Id. Document Thirteen is a proposed indictment sent from a trial
attorney to his or her supervising attorneys. Id. at 55. Document Fourteen “is a draft affidavit
which was prepared either by the DEA case agent or [a trial attorney]” that “contains references
to confidential sources who contributed to the investigation and prosecution of Borda and his co-
13
defendants.” Id. (emphasis omitted). Finally, Document Fifteen consists of “[t]yped and
handwritten notes prepared by an unidentified [trial attorney] which relate to the investigation
and prosecution of Borda and his co-defendants.” Id. at 56 (emphasis omitted).
The Department has submitted, in addition to the Third Cunningham Declaration, a
Vaughn Index identifying the author, recipient, and date of each of these eleven documents (if
available), along with a description of both the record and the exemptions invoked to withhold it.
See Dkt. 40-1 at 48–56. At times, the Third Cunningham Declaration asserts that more than one
exemption would independently suffice to justify the complete withholding of a document.
When the Court concludes that a single exemption is sufficient to justify withholding a document
in full, it limits its discussion to that exemption and does not the reach the availability of the
additional exemptions invoked.
The Court first addresses Documents Five through Eight. Each of these records is a
grand jury transcript, id. at 8–9 (Third Cunningham Decl. ¶ 19), and has been withheld in full
under Exemption 3, id. at 10–11 (Third Cunningham Decl. ¶¶ 22–24). In relevant part,
Exemption 3 protects information that is “specifically exempted from disclosure by statute . . . if
that statute . . . requires that the matters be withheld from the public in such a manner as to leave
no discretion on the issue.” 5 U.S.C. § 552(b)(3). The Department argues that “Rule 6(e) of the
Federal Rules of Criminal Procedure . . . does not permit discretion to disclose grand jury
material,” and thus “qualifies as a non-disclosure statute under the first prong of Exemption 3.”
Dkt. 40-1 at 10–11 (Third Cunningham Decl. ¶ 23). The Court agrees with both the general
proposition and its application to the transcripts at issue here. The D.C. Circuit has held that
Rule 6(e)’s “ban on disclosure is for FOIA purposes absolute and falls within [the first subpart]
of Exemption 3.” Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 F.2d
14
856, 868 (D.C. Cir. 1981). Grand jury transcripts, moreover, are the prototypical grand jury
material exempt from disclosure under Rule 6(e), and are thus protected from disclosure by
Exemption 3. Id. at 869; Boyd v. Exec. Office for U.S. Attorneys, 87 F. Supp. 3d 58, 83 (D.D.C.
2015) (“Although Exemption 3 and Rule 6(e) do not protect any and all information which has
reached the grand jury chambers from disclosure, grand jury testimony is precisely the type of
information that the provision is designed to protect.” (internal quotation marks and citation
omitted)). The Court, accordingly, concludes that the Department has properly withheld in full
Documents Five through Eight.
The remaining documents fall less obviously within the scope of Rule 6(e) and
Exemption 3. Although the Third Cunningham Declaration contains greater detail, the Vaughn
Index entries for Documents Nine, Eleven, Twelve, Fourteen, and Fifteen contain no mention of
any connection to grand jury proceedings, despite the Department’s assertion that Exemption 3
justifies the complete withholding of each of those records. Dkt. 40-1 at 53–56. The Vaughn
Index, in contrast, describes Document Ten as a PowerPoint Presentation “marked Grand Jury
Exhibit 1, [which] relates to the investigation, indictment and prosecution of Borda and his co-
defendants.” Id. at 54 (emphasis omitted). The index also notes the specific grand jury to which
this document was presented. Id. The D.C. Circuit has held that even “potential documentary
exhibits” presented to the grand jury are covered by Exemption 3, except in situations “where
documentary information coincidentally before the grand jury would be revealed in such a
manner that its revelation would not elucidate the inner workings of the grand jury.” Fund for
Constitutional Gov’t, 656 F.2d at 869–70. The PowerPoint at issue here is sought “from an
entity whose possession of that information is directly linked to its role relating to the grand jury
15
investigations.” Id. at 870. The Court, accordingly, concludes that the Department has properly
withheld Document Ten in full.
The Department has also properly withheld in full Document Thirteen, “a proposed” or
“draft” indictment in Borda’s criminal case, Dkt. 40-1 at 55; id. at 10 (Third Cunningham Decl.
¶ 22). The draft indictment contains and refers to information and testimony that “would have
been presented or occurred before the grand jury investigating the criminal activities of the
Plaintiff and his co-defendants.” Id. at 8–10 (Third Cunningham Decl. ¶ 19, 22). That is
“precisely the information that Rule 6(e) is intended to protect—information that ‘would tend to
reveal some secret aspect of the grand jury’s investigation.’” Judicial Watch, Inc. v. Nat’l
Archives & Records Admin., 214 F. Supp. 3d 43, 54 (D.D.C. 2016) (quoting Senate of Puerto
Rico v. U.S. Dep’t of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987)). This determination,
moreover, is in accord with the conclusions of those courts previously considering whether draft
indictments may be withheld in full under Exemption 3. See Judicial Watch, 214 F. Supp. 3d at
54; Boehm v. FBI, 948 F. Supp. 2d 9, 27 (D.D.C. 2013); Aleman v. Shapiro, No. 85-3313, 1987
WL 10872, at *1 (D.D.C. May 5, 1987).
The Department asserts in the Third Cunningham Declaration that the remaining
withheld materials “consist of documents and records concerning testimony and other related
information which would have been presented or occurred before the grand jury investigating the
criminal activities of the Plaintiff and his co-defendants.” Dkt. 40–1 at 10 (Third Cunningham
Decl. ¶ 22). That may be right, but the declaration offers few details regarding the connection of
most of those records to the grand jury. In light of this lack of detail, the Court declines to reach
the question of whether Exemption 3 would justify the withholding of Documents Nine, Eleven,
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Twelve, Fourteen, and Fifteen, and turns instead to Exemption 5, which the Department has also
invoked with respect to the remaining documents.
Exemption 5 permits agencies to withhold “inter-agency or intra-agency memorand[a] or
letters which would not be available by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. § 552(b)(5). Even when the documents at issue were produced during a
criminal prosecution, the exemption “covers records that would be ‘normally privileged in the
civil discovery context.’” Nat’l Ass’n of Criminal Def. v. Dep’t of Justice, 844 F.3d 246, 249
(D.C. Cir. 2016) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)); Williams
& Connolly v. SEC, 662 F.3d 1240, 1245 (D.C. Cir. 2011) (“[D]isclosure in criminal trials is
based on different legal standards than disclosure under FOIA, which turns on whether a
document would usually be discoverable in a civil case. Similar documents, in other words, are
not—indeed must not be—treated similarly in the two different types of proceedings.”).
Exemption 5 thus “allows the government to withhold records from FOIA disclosure under . . .
the attorney work-product privilege.” Nat’l Ass’n of Criminal Def., 844 F.3d at 249. That
privilege offers “a working attorney . . . a zone of privacy within which to think, plan, weigh
facts and evidence, candidly evaluate a client’s case, and prepare legal theories.” Id. at 251
(internal quotation marks omitted). “Not every document created by a government lawyer,
however, qualifies for the privilege (and thus, the exemption).” Id. Instead, the Court must
make “a case-specific determination that a particular document in fact was prepared in
anticipation of litigation before applying the privilege to government records.” Id. (citing Senate
of Puerto Rico, 823 F.2d at 586–87). To determine “whether a document was prepared in
anticipation of litigation,” the Court applies the “‘because of’ test, asking whether, in light of the
nature of the document and the factual situation in the particular case, the document can fairly be
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said to have been prepared or obtained because of the prospect of litigation.” Id. (quoting United
States v. Deloitte LLP, 610 F.3d 129, 137 (D.C. Cir. 2010)). This test means that “the attorney
who created the document must have had a subjective belief that litigation was a real possibility
and that subjective belief must have been objectively reasonable.” Id. (internal quotation marks
omitted). The D.C. Circuit has held that the work-product doctrine “should be interpreted
broadly and held largely inviolate.” Judicial Watch, Inc. v. U.S. Dep’t of Justice, 432 F.3d 366,
369 (D.C. Cir. 2005).
Exemption 5 straightforwardly covers the remaining documents because each was created
during or in preparation for the criminal prosecution of Borda and his co-defendants. Document
Nine consists of “handwritten notes containing references to witnesses and what the witness
could be expected to testify about[] [and] an outline and/or overview of the criminal case,
investigation and prosecution prepared for use in the grand jury.” Dkt. 40-1 at 12 (Third
Cunningham Decl. ¶ 28); accord id. at 53–54. Similarly, Document Fifteen contains “[t]yped
and handwritten notes” that were prepared by a trial attorney assigned to Borda’s criminal
prosecution and “relate to the investigation and prosecution of Borda and his co-defendants.” Id.
at 56 (emphasis omitted). Documents Eleven and Twelve are “prosecution memos written by” a
trial attorney on the prosecution team “seeking Section approval to proceed with an Indictment
of the Plaintiff and his co-defendants.” Id. at 10 (Third Cunningham Decl. ¶ 22). Both of these
memoranda, moreover, are “incomplete” or “draft” versions. Id. at 54. Document Fourteen “is a
draft affidavit which was prepared either by the DEA case agent or [a trial attorney]” that
“contains references to confidential sources who contributed to the investigation and prosecution
of Borda and his co-defendants.” Id. (emphasis omitted). All of these materials “were prepared
by or at the direction of an attorney . . . in anticipation of the prosecution of the Plaintiff and his
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co-defendants” and “contain information constituting the legal analysis” of an attorney working
on the prosecution, that attorney’s “theory of the case being investigated and evaluation of the
evidence,” and the attorney’s “assessments of facts and issues pertaining to the proposed
Indictment of the Plaintiff and his co-defendants.” Id. at 12–13 (Third Cunningham Decl. ¶¶ 29–
30).
The Court, accordingly, concludes that Documents Nine, Eleven, Twelve, Fourteen, and
Fifteen consist entirely of either “text concerning the mental impressions, conclusions, opinions,
or legal theories of an attorney,” or “factual materials prepared in anticipation of litigation,” and
thus were properly withheld in full under Exemption Five. Tax Analysts v. IRS, 117 F.3d 607,
620 (D.C. Cir. 1997) (internal quotation marks omitted). Through the Third Cunningham
Declaration and the Vaughn Index, the Department has demonstrated that the case notes and
prosecution memoranda in Documents Nine, Eleven, Twelve, and Fifteen contain the thought
processes, opinions, and legal theories of the attorneys considering whether to prosecute Borda.
Such materials are “precisely the type of information universally held to be attorney-work
product,” and thus are protected from disclosure under Exemption 5. Heggestad v. U.S. Dep’t of
Justice, 182 F. Supp. 2d 1, 11 (D.D.C. 2000) (holding that “prosecution memoranda . . . created
as an integral part of the Tax Division’s investigation and its decision-making process with
regard to whether or not to prosecute” that “contain recommendations of the IRS, the United
States Attorney and the Tax Division; review notes; and letters and memoranda concerning the
handling of the case” were work product exempt from disclosure); Boyd, 87 F. Supp. 3d at 85
(holding that a “case initiation form” describing “various particulars regarding the Plaintiff’s
case” created “in the course of an investigation that was undertaken with litigation in mind” was
entirely protected under Exemption 5 (citation omitted)). Although it is conceivable that the
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prosecution memoranda, in particular, contain some factual or other background material beyond
the legal analysis of the authoring attorneys, “[t]he circuit’s case law is clear that the work-
product doctrine simply does not distinguish between factual and deliberative material.” Judicial
Watch, 432 F.3d at 371 (internal quotation marks omitted). That means that “factual material is
itself privileged when it appears within documents that are attorney work product,” and “[i]f a
document is fully protected as work product, then segregability is not required.” Id.
Document Fourteen presents a slightly different question because the Department is
unsure whether it was created by an attorney working on the case or a Drug Enforcement Agency
(“DEA”) Special Agent. In the event this document was in fact prepared by an attorney, it falls
comfortably within Exemption 5 for the reasons stated above—that is, because it is a document
created by an attorney “in the course of an investigation that was undertaken with” Borda’s
criminal prosecution in mind. Boyd, 87 F. Supp. 3d at 85 (quoting SafeCard Servs., 926 F.2d at
1202). Even if the draft was in fact authored by a DEA agent, however, the work-product
“doctrine protect[s] material prepared by agents for the attorney as well as those prepared by the
attorney himself,” United States v. Nobles, 422 U.S. 225, 238–39 (1975), and “[r]ecent cases
have generally held that draft affidavits . . . are covered by the work-product rule,” 8 Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2024 n.23, at 510 (3d ed. 2010);
see Clemmons v. Acad. for Educ. Dev., 300 F.R.D. 6, 7–8 (D.D.C. 2013) (collecting cases).
Here, the draft affidavit was prepared “at the direction of an attorney . . . in anticipation of the
prosecution of the Plaintiff and his co-defendants.” Dkt. 40-1 at 12–13 (Third Cunningham
Decl. ¶ 29). That makes it work product, and thus exempt from disclosure under Exemption 5.
See Miller v. U.S. Dep’t of Justice, 562 F. Supp. 2d 82, 114–15 (D.D.C. 2008) (holding that “a
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draft affidavit supporting the request for plaintiff’s extradition” was properly withheld under
Exemption 5 as attorney work product despite unknown authorship of the affidavit).
CONCLUSION
For these reasons, the Court will GRANT the Department’s renewed motion for
summary judgment, Dkt. 40, and will DENY Borda’s motion to amend, Dkt. 44.
A separate order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: March 31, 2018
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