LegalForce RAPC Worldwide P.C. v. U.S. Patent & Trademark Office, No. 19-05935, 2020 WL 1899402 (N.D. Cal. Apr. 16, 2020) (Alsup, J.)

LegalForce RAPC Worldwide P.C. v. U.S. Patent & Trademark Office, No. 19-05935, 2020 WL 1899402 (N.D. Cal. Apr. 16, 2020) (Alsup, J.)

Re:  Request for records concerning one of plaintiff's attorneys

Disposition:  Granting defendant's motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  The court holds that "the index offers enough information to effectively evaluate plaintiff's objections – with one exception."  "But the exception aside, plaintiff does not explain how the index's employment of various categories of withholding undermines review."  "Each individual document entry in the Vaughn index describes the document type, source or author, addressee or destination, title, subject, date, and whether withheld in full or redacted in part."  "Plaintiff's 'generic categories' of withholding are conclusions, applicable to groups of documents, based upon individual descriptions."
   
• Exemption 5, Attorney Work-Product:  The court relates that it "took the documents for in camera review" and found that certain documents "are iterations of an outline for [defendant's] interview of [the individual involved in the subject of this request] [and are] part of the agency's disciplinary investigation."  "They lay out the interview format, subject matter, and even the specific language of questions to ask."  "They are, undoubtedly, attorney work-product."  "And because the documents are agency . . . work-product, they fall within Exemption 5."  However, the court finds that "the Vaughn index's failure to describe [certain] underlying exhibits themselves prevents effective review of [defendant's] withholding [of this material]."  "From the index alone, it remains unclear whether the underlying exhibits are complete documents or whether they are annotated or excerpted, thus representing attorney impressions."  "Nor does the index adequately describe the document subjects."  "And, because Exemption 5 applies, generally, only to intra-agency or interagency documents, failure to specify document authors and addressees may undermine the withholding."  "Unsurprisingly, in camera review reveals Exemption 5 does not protect [one document]."  "[The one document] contains no agency generated material."  "Instead, it contains . . . plaintiff's own email records . . . and a memorandum from outside ethics counsel."  The court finds that "[i]t is true that an attorney's curation of exhibits, i.e., annotations and excerpts of documents, might be work-product."  "It does not appear that [defendant's] attorneys similarly curated the pages of [this document]."
   
• Exemptions 6 & 7(C):  Regarding the one document found not to be covered by Exemption 5, the court relates that "[defendant] . . . asserts [that the subject] holds a legitimate privacy interest in the circumstances of [defendant's] investigation into her conduct."  "Thus, it rates disclosure of [the document] both as a clearly unwarranted invasion of [the subject's] personal privacy generally and an unwarranted invasion of her personal privacy interest in law enforcement documents involving her . . . ."  "Despite the fair opportunity to challenge these grounds in its opposition brief, plaintiff did not."  "No public interest [was] articulated to overcome [the subject's] privacy interest, [and, therefore, the court finds that this document] was appropriately withheld under Exemptions 6 and 7(C)."