Pellegrino v. TSA, No. 09-5505, 2015 WL 2124911 (E.D. Pa. May 6, 2015) (Joyner, J.)

Pellegrino v. TSA, No. 09-5505, 2015 WL 2124911 (E.D. Pa. May 6, 2015) (Joyner, J.)

Re: Request for records concerning plaintiff

Disposition: Granting in part and denying in part defendant's motion for summary judgment

• Exemption 5, Attorney Work-Product and Attorney-Client Privileges:  The court holds that "the crime-fraud exception [does not] invalidate[] the defendants' privilege assertions."  The court explains that "[a]fter a review of the documents, [it] find[s] no evidence that any defendant or associated party 'was committing or intending to commit a fraud or crime.'"  "Plaintiff's briefing paints an unsavory picture of a variety of crimes allegedly committed by the defendants, but there is nothing in the documents to substantiate these claims."  The court also finds that "as with the crime-fraud exception, the attorney misconduct exception cannot invalidate the TSA's work product claim."  The court explains that "even if we were to assume the existence of this exception, we have already reviewed the withheld documents and found no evidence that the attorneys acted improperly."
   
• Litigation Considerations, Adequacy of Search:  The court holds that "TSA's affidavit does not provide sufficient information to demonstrate that its search was adequate."  The court explains that "[t]here is no information about what the tasking forms said, what records were searched, what search terms were used, or what procedures were followed."  "Additionally, there is no averment from the affiant that 'all files likely to contain responsive material were searched.'"
   
• Exemption 5, Attorney Work-Product:  The court "reject[s] the TSA's global assertion of work product protection over the documents."  The court relates that "the documents in question are essentially from a TSA attorney's case file for this matter."  The court finds that "there is no indication—from either the TSA's briefing or our review of the documents—that anything about the selection or grouping of these documents would reveal that attorney's mental processes."  "Instead, this appears to just be a collection of documents that happened to be in the possession of an attorney."  "The mere fact that an attorney holds a document cannot, by itself, be the basis for a valid work product claim."  However, the court finds that "this does not mean that the documents are not protected at all."  "In fact, the vast majority of the documents are themselves attorney work product because they were created in anticipation of litigation."
   
• Exemption 5, Attorney-Client Privilege:  The court holds that certain documents were "properly withheld."  The court finds that the "document[s] [are] . . . legal memorand[a] from . . . TSA attorney[s] to . . . TSA employee[s] providing legal counsel related to the employees' testimony in [plaintiff's] state criminal trial."  "Put simply, the communications were from an attorney (TSA field counsel) to clients (TSA employees) providing confidential legal advice."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that this privilege was incorrectly applied.  The court finds that the document at issue "merely shows the officials' concurrence with a recommended action, which they indicated by circling the word 'concur' and writing their initials."  "Nothing in the document reflects or reveals anything about the agency officials' thought processes or discussions that led to their decision."  "In fact there is essentially nothing of substance in the document at all."  "As a result, the document is not deliberative for purposes of the privilege and cannot be withheld."
   
• Exemption 6:  The court holds that "the names and identifying information [of TSA employees] may remain withheld."  The court finds that "[t]he privacy interest at stake here is the TSA employees' right to keep their identities—and their connection to this matter—away from public eyes."  The court finds that it "cannot conceive of any significant public interest that would be served by revealing the names of the TSA employees."  Therefore, the court finds that "[g]iven that the public interest in disclosure is slight, it is outweighed here by the employees' privacy rights."  The court does hold that one document which contains the names and identifying information of TSA employees and which was withheld in full should be further segregated because "[h]owever slight [the] value [of the remaining information] may be though, [it is] not exempt from production."
   
• Procedural Requirements, "Reasonably Segregable" Obligation:  The court holds that it "need not undertake a segregability analysis for the majority of the withheld documents as they are fully protected by the work product doctrine."  Additionally, the court finds that as to the documents protected by attorney-client privilege "[t]here is nothing on the withheld pages beyond [attorney-client] communications."  "As such, there is no segregable material and they may remain withheld in their entirety."