WEEK OF OCTOBER 29 - NOVEMBER 2

District Courts

1. Hammerlord v. City of San Diego, No. 11-1564, 2012 U.S. Dist. LEXIS 157740 (S.D. Cal. Nov. 2, 2012) (Sammartino, J.)

Re: Request for records pertaining to an anonymous tip that led to law enforcement entering plaintiff's apartment

Holding: Dismissing plaintiff's claim for an alleged violation of FOIA

• Proper Party Defendant: "Plaintiff's claims under the FOIA against City Defendants and [San Diego Housing Commission] must fail because the statute only applies to federal agencies." "To the extent that Plaintiff argues the [Commission] is a federal agency because it receives federal funds,…this argument is without merit."

2. Hill v. DOJ, No. 11-0273, 2012 U.S. Dist. Lexis 157464 (D.D.C. Nov. 2, 2012) (Howell, J.)

Re: Request for records reflecting specific dates regarding the grand jury and the name of the district court judge who summoned the grand jury in plaintiff's criminal case

Holding: Granting defendant's renewed motion for summary judgment and denying plaintiff's motion for a continuance to conduct discovery

• Adequacy of Search: Because "plaintiff did not file an objection to Magistrate Judge['s]… [Report and Recommendation,]… [plaintiff] has waived any argument against the characterization of the FOIA request." "Since it is undisputed that defendant located and released the very information identified in the [Report and Recommendation] as improperly withheld,…the Court has no further role to perform in this case" and "the adequacy of the defendant's search is a moot issue."

3. Zander v. DOJ, No. 10-2000, 2012 WL 5353516 (D.D.C. Oct. 31, 2012) (Bates, J.)

Re: Request for records related to a civil action plaintiff filed in connection with his incarceration

Holding: Defendants' motion for reconsideration is granted in part to the extent it seeks an indicative ruling pursuant to FRCP 62.1(a)(3); Defendants' motion for reconsideration is held in abeyance because the court lacks authority to grant further relief unless the court of appeals remands the case

• Jurisdiction: "The Court does not have jurisdiction to provide defendants relief at this time. A day after filing their motion for reconsideration, defendants filed a notice of appeal, which 'confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal.'" However, "this opinion shall indicate how the Court would rule if the case were remanded by the D.C. Circuit" because the Federal Rules of Civil Procedure allow the court to make such a statement.

• Motion for Reconsideration: "'Relief under Rule 60(b)(1) motions is rare; such motions allow district courts to correct only limited types of substantive errors.'" After considering the new submissions from the parties, "the Court believes that this is a circumstance where reconsideration as to part of the earlier decision would be appropriate" and the "Court would amend, in part, its June 20, 2012 Memorandum Opinion and Order."

• Exemption 5: The court agrees that "all but one of the documents are protected from disclosure" under the attorney-client privilege. Analyzing the decision of the Court of Appeals for the District of Columbia Circuit in Mead Data Central, Inc. v. U.S. Dept. of Air Force, 566 F.2d 242 (D.C. Cir. 1977), and subsequent rulings, the court finds that the attorney-client privilege should be given the "same meaning" in "both the discovery and FOIA contexts." This ensures that the "FOIA may not be used as a supplement to civil discovery – as it could be if the attorney-client privilege were less protective under FOIA." The letters and e-mail from Federal Bureau of Prison employees to agency attorneys are protected because "they are 'confidential communications from clients to their attorneys made for the purpose of securing legal advice or services.'" "'[T]he attorney-client privilege protects' [this type of information] categorically, regardless of the confidentiality of the information the communications contain." The e-mail from the attorney to his clients, however, "is only privileged if it rests on confidential information obtained from the clients." The court determines that "one sentence in the e-mail… almost certainly rests on confidential information from the client [and] must therefore be redacted." There rest of the "e-mail generally does not rest on such information, and is hence subject to disclosure."