Edelman v. SEC, No. 15-02750, 2017 WL 4286939 (S.D. Cal. Sept. 27, 2017) (Benitez, J.)

Edelman v. SEC, No. 15-02750, 2017 WL 4286939 (S.D. Cal. Sept. 27, 2017) (Benitez, J.)

Re:  Request for records concerning certain realty trust

Disposition:  Denying defendant's motion for partial summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[A]fter reviewing the parties' briefings, the record, and admissible evidence submitted, the Court is unable to conclude, as a matter of law, whether or not the SEC failed to conduct a 'reasonably calculated' search to uncover all relevant documents."  "[T]he Court sustains Plaintiff's objections to the portions of [defendant's declarant's] declaration that pertain to the SEC's search for records responsive to his FOIA requests because she did not have personal knowledge of or supervise the searches."  Additionally, "even if the Court considers these portions of [defendant's declarant's] declarations, they nevertheless lack the requisite minimum detail to demonstrate the adequacy of the SEC's search."  The court explains that "[n]owhere in [defendant's declarant's] declarations does she describe in any meaningful detail the process or procedures by which the SEC undertook the searches for records responsive to Plaintiff's requests."  "She does not describe any databases or files that were searched, the search terms used to define the search, or discuss how all files likely to contain responsive materials were searched."  However, the court also finds that "[p]laintiff also has not met his burden to show an absence of genuine material fact that the SEC conducted an inadequate search."
   
• Exemption 4:  The court finds that "although the SEC has identified the type of injury [the submitter] might suffer, the SEC has not put forward a detailed explanation of how the injury would result from disclosure of the documents."  The court relates that defendant's declarations "contain only speculative and conclusory statements that [the submitter] would suffer reputational harm or harm to its competitive position."
   
• Exemptions 6 & 7(C); Litigation Considerations, Vaughn Index/Declaration:  The court holds that "[p]laintiff also accurately asserts that the SEC did not put forth any evidence, admissible or otherwise, suggesting it had attempted to segregate non-exempt portions of the documents."
   
• Exemption 5 & Litigation Considerations, Vaughn Index/Declaration:  The court "finds it is unable to conclude whether the SEC properly applied Exemption 5[.]"  The court holds that "the SEC puts forward essentially [a] boilerplate statement that the documents were withheld as 'attorney work product, deliberative process.'"  "Additionally, the SEC again failed to show that it had even attempted to meet its duty to segregate non-exempt material."
   
• Litigation Considerations, Discovery:  "The Court does not agree [with plaintiff] that discovery is necessary at this time."  Instead, "the Court shall allow the SEC an additional opportunity to again move for summary judgment and attach admissible declarations responsive to this Court's Order."
   
• Litigation Considerations, Vaughn Index/Declaration:  "The Court agrees that [defendant's declarant's] declarations lack authentication."  Additionally, "the SEC has not established that [defendant's declarant] is 'an agency employee responsible for supervising' Plaintiff's FOIA searches."  "However, [the court also finds that] certain portions of [defendant's declarant's] declarations do state facts based on her own personal knowledge."