Welby v. HHS, No. 15-195, 2016 WL 1718263 (S.D.N.Y. Apr. 27, 2016) (Román, J.)

Welby v. HHS, No. 15-195, 2016 WL 1718263 (S.D.N.Y. Apr. 27, 2016) (Román, J.)

Re: Request for records concerning money judgment entered against entity that receives federal funds

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Exemption 5, Attorney-Client Privilege:  The court finds that defendant's use of Exemption 5 was proper.  First, "the Court rejects Plaintiff's challenge that certain withheld documents were not prepared in anticipation of litigation."  The court finds that "it does not follow that the Government's concern as to the source of the funds used to satisfy the Judgment was completely assuaged following the district court's vacatur of the restraining orders [on the subject entity's bank accounts]."  "There plausibly continues to exist a concern as to the source of the funds to be used to satisfy the Judgment until that time at which the Judgment is satisfied."  "Furthermore, the Government's Vaughn index provides reasonably specific detail to allow the Court, and Plaintiff, to discern that the subject communications/documents pertained to the Class Action Litigation."  Second, responding to plaintiff's argument, the court rejects "the proposition that the attorney-client privilege is always inapplicable when a communication discusses facts conveyed by a third party."  The court does relay that "'material . . . is not rendered privileged simply because it was contained in a memorandum prepared by an attorney.'"  Third, regarding plaintiff's argument that "the Government destroyed any claim of privilege by disclosing the communications to third parties," the court first finds that "it does not appear that [the subject entity] operated as a consultant or advisor to the Government" because "it cannot be said that [the subject entity] functioned as an arm of HHS."  However, "the Court finds that the extension of the attorney-client privilege to communications between HHS, [the New York Department of State], and [the subject entity] is appropriate under the common interest doctrine."  The court relates that "the Government contends that 'HHS, [the New York Department of State], and [the subject entity] share[] a common legal interest with respect to the class action litigation, namely preventing satisfaction of the Judgment with federal funds.'"  The court also notes that "the Government's Vaugh index evidences that communications between HHS, [the New York Department of State], and [the subject entity] concerned a joint litigation strategy with respect to ensuring the Judgment is not satisfied with federal grant funds."  Finally, the court finds that "though [the subject entity] may have an additional, financial interest not shared with the Government, '[a] financial interest of a party, no matter how large, does not preclude a court from finding a legal interest shared with another party where the legal aspects materially affect the financial interests.'"
   
• Procedural Requirements, Searching for Responsive Records:  "[T]he Court grants summary judgment in favor of the Government on [the] issue" of "whether the Government properly withheld portions of a document as non-responsive."  The court finds that "[t]he Government also has been consistent in its position that the withheld portions of the document were deemed non-responsive because their subject matter is unrelated to the FOIA Request or falls outside the time period delineated in the FOIA Request."  "As Plaintiff's bad faith argument fails, there is no reason for this Court to find that the Government improperly redacted non-responsive portions of [the document at issue]."