Borda v. Executive Office for the United States Attorney

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHRISTIAN BORDA,

Plaintiff,

v.
Civil Action No. 14-229 (RDM)
U.S. DEPARTMENT OF JUSTICE,
CRIMINAL DIVISION,

Defendant.

MEMORANDUM OPINION

This matter is currently before the Court on Defendant Department of Justice’s third

motion for summary judgment, Dkt. 40, and Plaintiff Christian Borda’s motion for leave to file a

second amended complaint, Dkt. 44. Borda seeks disclosure under the Freedom of Information

Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, of records pertaining to

grand jury proceedings within this district, as well as records relating to his 2010 conviction for

conspiracy to commit a narcotics offense. For the reasons explained below, the Court will

GRANT Defendant’s motion for summary judgment and will DENY Borda leave to file a

second amended complaint.

I. BACKGROUND

The underlying facts of this case have been relayed in the Court’s previous opinions. See

Borda v. Exec. Office for the U.S. Attorney (“Borda I”), 125 F. Supp. 3d 196 (D.D.C. 2015);

Borda v. U.S. Dep’t of Justice, Criminal Division (“Borda II”), 245 F. Supp. 3d 52 (D.D.C.

2017). In brief: Borda made three FOIA requests in 2013. Borda II, 245 F. Supp. 3d at 55. The

Executive Office for United States Attorneys (“EOUSA”) did not respond, and Borda filed suit.
Id. EOUSA then conducted an initial search, revealing no responsive records, Dkt. 28-3 at 3–4

(Cunningham Decl. ¶ 8), and moved for summary judgment, Dkt. 10. Borda did not oppose

EOUSA’s motion, instead moving to amend his complaint. Dkt. 20. The Court denied the

motion for summary judgment because no other components of the Department of Justice had

conducted searches, and the Court granted Borda’s motion for leave to amend his complaint. See

Borda I, 125 F. Supp. 3d at 199–200. After Borda filed his amended complaint (adding a

challenge to an EOUSA response to a 2015 records request), Dkt. 22, EOUSA forwarded his

inquiries to the Criminal Division of the Department of Justice. The Criminal Division

performed a search, released some responsive records to Borda while withholding others, Dkt.

28-3 at 5–7 (Cunningham Decl. ¶¶ 13–17), and EOUSA then filed another motion for summary

judgment, Dkt. 28.

In Borda II, the Court substituted the Department of Justice as the proper defendant, 245

F. Supp. 3d at 52 n.1, and granted in part and denied in part the Department’s motion for

summary judgment, id. at 63. The Court held that summary judgment was inappropriate as to

one aspect of the adequacy of the search and as to whether the Department had properly applied

Exemption 7(D) to four sealed plea agreements. With respect to the former, “[t]he Department

ha[d] not adequately explained how its decision to consolidate Borda’s four FOIA requests into a

single ‘search request’—to the exclusion of at least some of Borda’s specific search terms, see

Dkt. 31 at 5—was ‘reasonably calculated to uncover all relevant documents.’” Borda II, 245 F.

Supp. 3d at 59 (quoting DeBrew v. Atwood, 792 F.3d 118, 122 (D.C. Cir. 2015)). The Court

noted in particular that “Borda’s request for ‘all grand jury records in the public domain’ related

to his case appears to sweep more broadly than the five fact-specific search terms the Criminal

Division included in its synthesized search request.” Id. The Court, accordingly, denied

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summary judgment on “this limited issue, and . . . permit[ted] the Department to file a renewed

motion that either explains how the prior search encompassed all of the relevant search terms or

indicates that the Department has engaged in a further search for possibly responsive records.”

Id. With respect to the four plea agreements, the Court held that “the Department ha[d] not

explained how Exemption 7(D)—or any other exemption—permits it to withhold the agreements

in their entirety. . . . Nor ha[d] the Department shown that it [was] impractical to segregate the

non-exempt material from the material that [was] exempt.” Id. at 62. Although the Department

had also argued that the plea agreements were exempt from disclosure because they were sealed,

the Court observed that “sealed documents are not categorically exempted from disclosure under

FOIA,” and thus, “if the Department intends to rely on the sealed-status of the records in its

renewed motion, it will need to demonstrate that the seal was issued ‘with the intent to prohibit

the [Department] from disclosing the [plea agreements] as long as the seal remains in effect.’”

Id. at 63 n.8 (quoting Morgan v. U.S. Dep’t of Justice, 923 F.2d 195, 198 (D.C. Cir. 1991)). The

Court also ordered the Department to produce the disputed plea agreements for in camera

review. Id. at 63.

On June 9, 2017, the Department moved for summary judgment (the third such motion

filed by the government in this case) and produced (1) a supplemental declaration describing the

additional search efforts undertaken in response to Borda II and the rationale for withholding in

full the eleven responsive documents those efforts produced; (2) correspondence with the district

court judges who sealed the plea agreements that previously had been withheld in full; and (3)

the plea agreements themselves for in camera review. See Dkt. 40. The Court then advised

Borda of the consequences of failing to respond to the motion for summary judgment and

ordered him to file a response on or before July 24, 2017. See Dkt. 41. Borda moved for an

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extension of time to respond on July 28, 2017, Dkt. 43, which the Court granted, Minute Order

(Aug. 3, 2017). On August 17, 2017, Borda filed a second motion for leave to amend his

complaint. See Dkt. 44. The Court again instructed Borda of the consequences of not

responding to Defendant’s motion for summary judgment and specifically “cautioned” him “that

he should not assume that his [motion to amend] will be granted.” Minute Order (Sept. 5, 2017).

Borda still has not filed a response.

II. LEGAL STANDARD

A. Motion to Amend

A party may amend its complaint “once as a matter of course within . . . 21 days after

serving it, . . . 21 days after service of a responsive pleading[,] or 21 days after service of a

motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1). Thereafter, a

party may only amend “with the opposing party’s written consent or the court’s leave.” Fed R.

Civ. P. 15(a)(2). Although courts “should freely give leave [to amend] when justice so requires,”

id., that latitude does not extend to cases involving “undue delay, bad faith or dilatory motive on

the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,

undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of

amendment,” Foman v. Davis, 371 U.S. 178, 182 (1962).

B. Motion for Summary Judgment

The Freedom of Information Act is premised on the notion that an informed citizenry is

“vital to the functioning of a democratic society, needed to check against corruption and to hold

the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,

242 (1978). It thus mandates that an agency disclose records on request, unless they fall within

one of nine exemptions. “These exemptions are explicitly made exclusive and must be narrowly

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construed.” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and

citation omitted). As relevant here, Exemption 3 protects information “specifically exempted

from disclosure by statute . . . if that statute . . . requires that the matters be withheld from the

public in such a manner as to leave no discretion on the issue; or . . . establishes particular

criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C.

§ 552(b)(3). Exemption 5 covers “inter-agency or intra-agency memorand[a] or letters that

would not be available by law to a party other than an agency in litigation with the agency.” 5

U.S.C. § 552(b)(3).

FOIA cases are typically resolved on motions for summary judgment under Federal Rule

of Civil Procedure 56. See, e.g., Shapiro v. U.S. Dep’t of Justice, 153 F. Supp. 3d 253, 268

(D.D.C. 2016). To prevail on a summary judgment motion, the moving party must demonstrate

that there are no genuine issues of material fact and that he or she is entitled to judgment as a

matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In

a FOIA action, the agency may meet its burden by submitting “relatively detailed and non-

conclusory” affidavits or declarations, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.

Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)), and an

index of the information withheld, Vaughn v. Rosen, 484 F.2d 820, 827–28 (D.C. Cir. 1973);

Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). The Court reviews the

agency’s decision de novo, and the agency bears the burden of sustaining its action. 5 U.S.C.

§ 552(a)(4)(B).

III. ANALYSIS

The Court first addresses Borda’s motion to amend his complaint. It then considers the

adequacy of Defendant’s supplemental search, before turning to the decision to withhold in full

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both the four plea agreements previously at issue and the eleven responsive documents located in

the course of the Department’s supplemental search. Although Borda has failed to respond to

Defendant’s motion for summary judgment, the Court “must always engage in the analysis

required by Rule 56 before acting on a motion for summary judgment.” Winston & Strawn, LLP

v. McLean, 843 F.3d 503, 506 (2016).

A. Motion to Amend

Borda filed his original complaint on February 18, 2014. Dkt. 1 at 1. That complaint

challenged EOUSA’s response to three records requests submitted on November 4, November 5,

and November 20, 2013. Borda I, 125 F. Supp. 3d at 197. After EOUSA moved for summary

judgment, Dkt. 10, Borda sought leave to amend his complaint on June 5, 2015, Dkt. 20 at 1.

The Court granted Borda’s motion on August 28, 2015. Borda I, 125 F. Supp. 3d at 196. The

amended complaint added a claim contesting EOUSA’s response to a records request Borda had

filed on March 24, 2015. Borda II, 245 F. Supp. 3d at 55 n.2. On August 17, 2017, Borda filed

the motion to amend currently pending before the Court. Dkt. 44 at 1. That motion seeks leave

to amend Borda’s complaint a second time to add challenges to EOUSA’s response to two

additional records requests. Id. at 2. These requests were submitted on September 27, 2014, and

October 3, 2014. Dkt. 44-1 at 15, 19; see also Dkt. 44 at 2.

The Department opposes Borda’s motion on several grounds. First, it argues that he “has

unduly delayed seeking to add his claims concerning the [a]dditional FOIA [r]equests,” because

the requests were sent in late 2014—that is, more than six months before Borda successfully

sought leave to amend his complaint in June 2015 to add a request filed after the two requests he

now seeks to incorporate. Dkt. 46 at 4. Second, the Department argues that it would be

substantially prejudiced by the proposed amendment because of the considerable work involved

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in preparing a summary judgment motion in a FOIA case, an effort that would then need to be

undertaken a fourth time. Id. at 4–5. Finally, the Department asserts that further amendment of

the complaint would significantly delay the resolution of this matter by necessitating a renewed

round of briefing despite the limited scope of the issues currently before the Court. Id. at 5.

Borda has not filed a reply brief, but his motion for leave to amend arguably anticipated

at least portions of the Department’s opposition by noting that he had referred to the September

and October 2014 FOIA requests in an earlier pleading in this litigation. Dkt. 44 at 2 (noting

references to the September and October 2014 requests at Dkt. 31 at 21–22, 24). That earlier

pleading—Borda’s opposition to the Department’s second motion for summary judgment—

argued that the Department was not entitled to summary judgment because the Department had

not shown that it had “searched for and reviewed any of the documents/information described in”

Borda’s September and October 2014 FOIA requests. Dkt. 31 at 4. At the same time, however,

Borda conceded that the first amended complaint had “failed to include any allegations of agency

non-compliance with respect to” the two FOIA requests submitted in late 2014. Id. at 13 n.2. In

light of that significant problem, Borda noted that he “intend[ed] to seek leave of the Court to file

a [s]econd [a]mended [c]omplaint in order to” address these deficiencies. Id. On March 28,

2017, the Court held that “[b]ecause Borda’s operative complaint does not challenge the

Department’s response to [the September and October 2014] FOIA requests, he cannot, for the

first time, attack the sufficiency of the Department’s response by way of his opposition brief.”

Borda II, 245 F. Supp. 3d at 57 (citing Singh v. District of Columbia, 55 F. Supp. 3d 55, 70

(D.D.C. 2014)). Borda then filed his motion for leave to file a second amended complaint on

August 17, 2017. Dkt. 44.

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 “[U]ndue delay is a sufficient reason for denying leave to amend.” Atchinson v. District

of Columbia, 73 F.3d 418, 426 (D.C. Cir. 1996). Courts should, however, “generally take into

account the actions of other parties and the possibility of any resulting prejudice.” Id. A delay

of several years between the filing of the initial action and the request to amend is generally

undue and suggests prejudice to the defendant. See id. at 427 (delay of two years from filing of

action undue); Brown v. FBI, 744 F. Supp. 2d 120, 123 (D.D.C. 2010) (delay of two years

undue); Hoffmann v. United States, 266 F. Supp. 2d 27, 33 (D.D.C. 2003) (delay of five years

from time “plaintiffs concede[d] that they had at their disposal all the facts necessary to raise the

claims raised for the first time here” undue). The reason for the delay is also relevant to the

determination of whether leave to amend should be granted, Williamsburg Wax Museum, Inc. v.

Historic Figures, Inc., 810 F.2d 243, 247–48 (D.C. Cir. 1987) (affirming denial of leave to

amend when plaintiff had “offered no explanation for its tardiness” and “had abundant

opportunity” to previously “raise the issue”); James Madison Proj. v. Dep’t of Justice, 208 F.

Supp. 3d 265, 280 (D.D.C. 2016) (delay of approximately six months after being put on notice

that complaint did not reflect all requests was undue because “Plaintiff provide[d] no reason for

th[e] delay”), as is whether the proposed amendment would add additional factual allegations or

merely “clarify legal theories or make technical corrections,” Harrison v. Rubin, 174 F.3d 249,

253 (D.C. Cir. 1999) (“Although this Circuit has recognized undue delay as a basis for denying a

motion to amend, we have done so only where plaintiffs sought to add new factual allegations.”).

With respect to prejudice more specifically, whether considered independently or in concert with

the question of undue delay, courts have acknowledged that the “considerable time and effort

briefing summary judgment on the issues presented in” a FOIA case weighs against granting

leave to amend after that briefing has begun. James Madison Proj., 208 F. Supp. 3d at 280; see

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also Sai v. Transp. Sec. Admin., 155 F. Supp. 3d 1, 7–8 (D.D.C. 2016) (denying leave to file a

supplemental pleading adding new FOIA requests because their addition “would merely result in

undue delay in the disposition of this case and would not enhance judicial efficiency”); Brown,

744 F. Supp. 2d at 123.

These considerations counsel against granting Borda leave to amend his complaint a

second time. Borda fails to offer any explanation for why the September and October 2014

FOIA requests were not included in his first amended complaint, which was filed many months

later in June 2015. Dkt. 20; see also Dkt. 31 at 13 n.2 (noting that the requests were omitted for

“unknown” reasons). Borda also does not dispute that he then possessed the records he now

submits as evidence of having submitted the September and October 2014 requests. The delay

here, moreover, is substantial. Forty-two months elapsed from when Borda filed this suit to

when he sought leave to amend the complaint for a second time to add substantial, new

allegations, and he could easily have sought leave to amend long before he did so. Indeed, even

giving him the benefit of the doubt and assuming that he was unaware that the September and

October 2014 FOIA requests were not included in his first amended complaint at the time it was

filed, he recognized that omission in his opposition to the Department’s second motion for

summary judgment, which was filed in early April 2016, and he indicated at that time that he

would seek leave to file a second amended complaint. Dkt. 31 at 13 n.2. He did not do so,

however, until August 2017—over sixteen months later. Compare Dkt. 31 at 1, with Dkt. 44

at 1.

In short, there is no reason why Borda could not have included his allegations regarding

the September and October 2014 FOIA requests in his first amended complaint; he failed to

demonstrate due diligence in seeking to correct this omission when it came to his attention; and

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adding these additional allegations now would delay the resolution of this case, which has been

pending for over four years and which has already generated three rounds of briefing on

summary judgment. Although leave to amend must be freely granted, there are limits to that

principle. Borda’s motion for leave to amend not only tests those limits, but exceeds them. See

Fed. R. Civ. P. 1 (admonishing courts and parties to apply the rules “to secure the just, speedy,

and inexpensive determination of every action”).

The Court will, accordingly, deny Borda’s motion for leave to file a second amended

complaint.

B. Motion for Summary Judgment

1. Adequacy of the Department’s Supplemental Search for Responsive Records

FOIA requires agencies to demonstrate that they have “conduct[ed] a search for the

requested records, using methods which can be reasonably expected to produce the information

requested.” Reporters Comm. for Freedom of Press v. FBI, 877 F.3d 399, 400 (D.C. Cir. 2017)

(quoting Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). To prevail on

summary judgment, an “agency must show that it made a good faith effort to conduct a search

for the requested records, using methods which can be reasonably expected to produce the

information requested.” Id. at 402 (quoting Oglesby, 920 F.2d at 68). It can meet this burden,

moreover, “by submitting ‘[a] reasonably detailed affidavit, setting forth the search terms and the

type of search performed, and averring that all files likely to contain responsive materials (if such

records exist) were searched.’” Id. (quoting Oglesby, 920 F.2d at 68). Borda has not objected to

the adequacy of the Department’s search for records, but the Court nevertheless considers

whether the Department has remedied the deficiencies in its previous searches identified in

Borda II. There, the Court held:

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 The Department has not adequately explained how its decision to consolidate
Borda’s four FOIA requests into a single “search request”—to the exclusion of at
least some of Borda’s specific search terms—was reasonably calculated to uncover
all relevant documents. In particular, Borda’s request for “all grand jury records in
the public domain” related to his case appears to sweep more broadly than the five
fact-specific search terms the Criminal Division included in its synthesized search
request.

Borda II, 245 F. Supp. 3d at 59 (internal quotation marks and citation omitted).

In response, the Department expanded its search and has now submitted a revised

declaration from John E. Cunningham III, a trial attorney at the Department’s Criminal Division

assigned to the Freedom of Information Act and Privacy Act Unit. Dkt. 40-1 at 1 (Third

Cunningham Decl. ¶ 1). The Third Cunningham Declaration explains that the Department has

since returned to the set of files associated with Borda’s case and searched for any “grand jury

material specifically related to the Borda criminal investigation and prosecution.” Id. at 8 (Third

Cunningham Decl. ¶ 18). By expanding its search beyond the five fact-specific terms that it

previously employed to a search looking for any grand jury material related to Borda’s case, the

Department has remedied the sole deficiency the Court identified with respect to the search.

The Court, accordingly, concludes that the Department has conducted a search

“reasonably calculated to uncover all relevant documents,” DeBrew, 792 F.3d at 122, and will

grant Defendant’s motion for summary judgment as to the adequacy of the search.

2. Withholding in Full of Responsive Records

a. Sealed Plea Agreements

The Department’s initial search identified four plea agreements responsive to Borda’s

requests, which it refers to as Documents One, Two, Three, and Four. Dkt. 40-1 at 8–9 (Third

Cunningham Decl. ¶ 19). These plea agreements have been withheld in full on the ground that

they remain sealed by the judges who accepted the pleas. Id. at 9 (Third Cunningham Decl.

¶ 20). In Borda II, however, the Court observed that, by “repeatedly not[ing] that the four plea
11

agreements were filed under seal and are not publicly accessible court records, but provid[ing]

no information about the circumstances under which those agreements were sealed or whether,

and to what extent, the seal remains in place,” the Department failed to justify withholding the

records. 245 F. Supp. 3d at 63 n.8 (internal quotation marks and citations omitted).

As the D.C. Circuit has explained, sealed documents are not categorically exempt from

disclosure under FOIA. See Morgan v. U.S. Dep’t of Justice, 923 F.2d 195, 197 (D.C. Cir.

1991). Instead, “the proper test for determining whether an agency improperly withholds records

under seal is whether the seal . . . prohibits the agency from disclosing the records.” Id. To

determine whether “the court issued the seal with the intent to prohibit the [Department] from

disclosing the [records] as long as the seal remains in effect,” the Department may “refer[] to,

inter alia: (1) the sealing order itself; (2) extrinsic evidence, such as transcripts and papers filed

with the sealing court, casting light on the factors that motivated the court to impose the seal; (3)

sealing orders of the same court in similar cases that explain the purpose for the imposition of the

seals; or (4) the court’s general rules or procedures governing the imposition of seals.” Id. at

198. In the event that such evidence still does not reveal “the scope and effect of the seal,” an

agency “may need to seek a clarification from the court that issued the seal.” Id.

The Department has now submitted documentation from each of the judges who

originally sealed the four plea agreements regarding the status and intent of those sealing orders.

Three letters were submitted as exhibits to the Department’s renewed motion for summary

judgment. Each verifies that the relevant plea agreement remains under seal and may not be

disclosed. See Dkt. 40-1 at 70 (letter from Judge Rosemary M. Collyer stating that “Document

Three on the Criminal Division’s Vaughn Index . . . reflects a plea that necessarily remains under

seal”); id. at 72 (letter from Judge John D. Bates stating that another of the four plea agreements

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“is under court seal and that the seal prohibits the Department of Justice from disclosing the Plea

Agreement in response to a FOIA request”); id. at 74 (letter from Judge Gladys Kessler stating

that another of the four plea agreements remains “the subject of a court seal”). The final

response was issued as a sealed order by the judge who accepted the plea. Id. at 9 (Third

Cunningham Decl. ¶ 20). The Department has provided the Court with a copy of this sealed

order for in camera review, and the order verifies that the original sealing order in that case

prohibits any disclosure of the agreement. See id. (Third Cunningham Decl. ¶ 20) (stating that

the sealed order “confirmed that the . . . plea agreement[] . . . remain[s] under seal”).

Because the Department has “obtain[ed] a clarifying order [or letter] stating that the seal

prohibits disclosure” of each of the plea agreements withheld in full, the Department “is

obviously entitled to summary judgment.” Morgan, 923 F.2d at 198.

b. Documents Located in Supplemental Search

The supplemental search undertaken by the Department identified eleven additional

responsive records, labeled as Documents Five through Fifteen. Dkt. 40-1 at 8–9 (Third

Cunningham Decl. ¶ 19). Each of these documents was withheld in full. Id. (Third Cunningham

Decl. ¶ 19). Documents Five, Six, Seven, and Eight are grand jury transcripts. Id. (Third

Cunningham Decl. ¶ 19). Document Nine is a single page of handwritten notes. Dkt. 40-1 at

53–54. Document Ten is a PowerPoint presentation that was used as an exhibit before the grand

jury. Id. at 54. Documents Eleven and Twelve are memoranda produced in conjunction with

Borda’s criminal prosecution. Id. Document Thirteen is a proposed indictment sent from a trial

attorney to his or her supervising attorneys. Id. at 55. Document Fourteen “is a draft affidavit

which was prepared either by the DEA case agent or [a trial attorney]” that “contains references

to confidential sources who contributed to the investigation and prosecution of Borda and his co-

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defendants.” Id. (emphasis omitted). Finally, Document Fifteen consists of “[t]yped and

handwritten notes prepared by an unidentified [trial attorney] which relate to the investigation

and prosecution of Borda and his co-defendants.” Id. at 56 (emphasis omitted).

The Department has submitted, in addition to the Third Cunningham Declaration, a

Vaughn Index identifying the author, recipient, and date of each of these eleven documents (if

available), along with a description of both the record and the exemptions invoked to withhold it.

See Dkt. 40-1 at 48–56. At times, the Third Cunningham Declaration asserts that more than one

exemption would independently suffice to justify the complete withholding of a document.

When the Court concludes that a single exemption is sufficient to justify withholding a document

in full, it limits its discussion to that exemption and does not the reach the availability of the

additional exemptions invoked.

The Court first addresses Documents Five through Eight. Each of these records is a

grand jury transcript, id. at 8–9 (Third Cunningham Decl. ¶ 19), and has been withheld in full

under Exemption 3, id. at 10–11 (Third Cunningham Decl. ¶¶ 22–24). In relevant part,

Exemption 3 protects information that is “specifically exempted from disclosure by statute . . . if

that statute . . . requires that the matters be withheld from the public in such a manner as to leave

no discretion on the issue.” 5 U.S.C. § 552(b)(3). The Department argues that “Rule 6(e) of the

Federal Rules of Criminal Procedure . . . does not permit discretion to disclose grand jury

material,” and thus “qualifies as a non-disclosure statute under the first prong of Exemption 3.”

Dkt. 40-1 at 10–11 (Third Cunningham Decl. ¶ 23). The Court agrees with both the general

proposition and its application to the transcripts at issue here. The D.C. Circuit has held that

Rule 6(e)’s “ban on disclosure is for FOIA purposes absolute and falls within [the first subpart]

of Exemption 3.” Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 F.2d

14

856, 868 (D.C. Cir. 1981). Grand jury transcripts, moreover, are the prototypical grand jury

material exempt from disclosure under Rule 6(e), and are thus protected from disclosure by

Exemption 3. Id. at 869; Boyd v. Exec. Office for U.S. Attorneys, 87 F. Supp. 3d 58, 83 (D.D.C.

2015) (“Although Exemption 3 and Rule 6(e) do not protect any and all information which has

reached the grand jury chambers from disclosure, grand jury testimony is precisely the type of

information that the provision is designed to protect.” (internal quotation marks and citation

omitted)). The Court, accordingly, concludes that the Department has properly withheld in full

Documents Five through Eight.

The remaining documents fall less obviously within the scope of Rule 6(e) and

Exemption 3. Although the Third Cunningham Declaration contains greater detail, the Vaughn

Index entries for Documents Nine, Eleven, Twelve, Fourteen, and Fifteen contain no mention of

any connection to grand jury proceedings, despite the Department’s assertion that Exemption 3

justifies the complete withholding of each of those records. Dkt. 40-1 at 53–56. The Vaughn

Index, in contrast, describes Document Ten as a PowerPoint Presentation “marked Grand Jury

Exhibit 1, [which] relates to the investigation, indictment and prosecution of Borda and his co-

defendants.” Id. at 54 (emphasis omitted). The index also notes the specific grand jury to which

this document was presented. Id. The D.C. Circuit has held that even “potential documentary

exhibits” presented to the grand jury are covered by Exemption 3, except in situations “where

documentary information coincidentally before the grand jury would be revealed in such a

manner that its revelation would not elucidate the inner workings of the grand jury.” Fund for

Constitutional Gov’t, 656 F.2d at 869–70. The PowerPoint at issue here is sought “from an

entity whose possession of that information is directly linked to its role relating to the grand jury

15

investigations.” Id. at 870. The Court, accordingly, concludes that the Department has properly

withheld Document Ten in full.

The Department has also properly withheld in full Document Thirteen, “a proposed” or

“draft” indictment in Borda’s criminal case, Dkt. 40-1 at 55; id. at 10 (Third Cunningham Decl.

¶ 22). The draft indictment contains and refers to information and testimony that “would have

been presented or occurred before the grand jury investigating the criminal activities of the

Plaintiff and his co-defendants.” Id. at 8–10 (Third Cunningham Decl. ¶ 19, 22). That is

“precisely the information that Rule 6(e) is intended to protect—information that ‘would tend to

reveal some secret aspect of the grand jury’s investigation.’” Judicial Watch, Inc. v. Nat’l

Archives & Records Admin., 214 F. Supp. 3d 43, 54 (D.D.C. 2016) (quoting Senate of Puerto

Rico v. U.S. Dep’t of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987)). This determination,

moreover, is in accord with the conclusions of those courts previously considering whether draft

indictments may be withheld in full under Exemption 3. See Judicial Watch, 214 F. Supp. 3d at

54; Boehm v. FBI, 948 F. Supp. 2d 9, 27 (D.D.C. 2013); Aleman v. Shapiro, No. 85-3313, 1987

WL 10872, at *1 (D.D.C. May 5, 1987).

The Department asserts in the Third Cunningham Declaration that the remaining

withheld materials “consist of documents and records concerning testimony and other related

information which would have been presented or occurred before the grand jury investigating the

criminal activities of the Plaintiff and his co-defendants.” Dkt. 40–1 at 10 (Third Cunningham

Decl. ¶ 22). That may be right, but the declaration offers few details regarding the connection of

most of those records to the grand jury. In light of this lack of detail, the Court declines to reach

the question of whether Exemption 3 would justify the withholding of Documents Nine, Eleven,

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Twelve, Fourteen, and Fifteen, and turns instead to Exemption 5, which the Department has also

invoked with respect to the remaining documents.

Exemption 5 permits agencies to withhold “inter-agency or intra-agency memorand[a] or

letters which would not be available by law to a party other than an agency in litigation with the

agency.” 5 U.S.C. § 552(b)(5). Even when the documents at issue were produced during a

criminal prosecution, the exemption “covers records that would be ‘normally privileged in the

civil discovery context.’” Nat’l Ass’n of Criminal Def. v. Dep’t of Justice, 844 F.3d 246, 249

(D.C. Cir. 2016) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)); Williams

& Connolly v. SEC, 662 F.3d 1240, 1245 (D.C. Cir. 2011) (“[D]isclosure in criminal trials is

based on different legal standards than disclosure under FOIA, which turns on whether a

document would usually be discoverable in a civil case. Similar documents, in other words, are

not—indeed must not be—treated similarly in the two different types of proceedings.”).

Exemption 5 thus “allows the government to withhold records from FOIA disclosure under . . .

the attorney work-product privilege.” Nat’l Ass’n of Criminal Def., 844 F.3d at 249. That

privilege offers “a working attorney . . . a zone of privacy within which to think, plan, weigh

facts and evidence, candidly evaluate a client’s case, and prepare legal theories.” Id. at 251

(internal quotation marks omitted). “Not every document created by a government lawyer,

however, qualifies for the privilege (and thus, the exemption).” Id. Instead, the Court must

make “a case-specific determination that a particular document in fact was prepared in

anticipation of litigation before applying the privilege to government records.” Id. (citing Senate

of Puerto Rico, 823 F.2d at 586–87). To determine “whether a document was prepared in

anticipation of litigation,” the Court applies the “‘because of’ test, asking whether, in light of the

nature of the document and the factual situation in the particular case, the document can fairly be

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said to have been prepared or obtained because of the prospect of litigation.” Id. (quoting United

States v. Deloitte LLP, 610 F.3d 129, 137 (D.C. Cir. 2010)). This test means that “the attorney

who created the document must have had a subjective belief that litigation was a real possibility

and that subjective belief must have been objectively reasonable.” Id. (internal quotation marks

omitted). The D.C. Circuit has held that the work-product doctrine “should be interpreted

broadly and held largely inviolate.” Judicial Watch, Inc. v. U.S. Dep’t of Justice, 432 F.3d 366,

369 (D.C. Cir. 2005).

Exemption 5 straightforwardly covers the remaining documents because each was created

during or in preparation for the criminal prosecution of Borda and his co-defendants. Document

Nine consists of “handwritten notes containing references to witnesses and what the witness

could be expected to testify about[] [and] an outline and/or overview of the criminal case,

investigation and prosecution prepared for use in the grand jury.” Dkt. 40-1 at 12 (Third

Cunningham Decl. ¶ 28); accord id. at 53–54. Similarly, Document Fifteen contains “[t]yped

and handwritten notes” that were prepared by a trial attorney assigned to Borda’s criminal

prosecution and “relate to the investigation and prosecution of Borda and his co-defendants.” Id.

at 56 (emphasis omitted). Documents Eleven and Twelve are “prosecution memos written by” a

trial attorney on the prosecution team “seeking Section approval to proceed with an Indictment

of the Plaintiff and his co-defendants.” Id. at 10 (Third Cunningham Decl. ¶ 22). Both of these

memoranda, moreover, are “incomplete” or “draft” versions. Id. at 54. Document Fourteen “is a

draft affidavit which was prepared either by the DEA case agent or [a trial attorney]” that

“contains references to confidential sources who contributed to the investigation and prosecution

of Borda and his co-defendants.” Id. (emphasis omitted). All of these materials “were prepared

by or at the direction of an attorney . . . in anticipation of the prosecution of the Plaintiff and his

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co-defendants” and “contain information constituting the legal analysis” of an attorney working

on the prosecution, that attorney’s “theory of the case being investigated and evaluation of the

evidence,” and the attorney’s “assessments of facts and issues pertaining to the proposed

Indictment of the Plaintiff and his co-defendants.” Id. at 12–13 (Third Cunningham Decl. ¶¶ 29–

30).

The Court, accordingly, concludes that Documents Nine, Eleven, Twelve, Fourteen, and

Fifteen consist entirely of either “text concerning the mental impressions, conclusions, opinions,

or legal theories of an attorney,” or “factual materials prepared in anticipation of litigation,” and

thus were properly withheld in full under Exemption Five. Tax Analysts v. IRS, 117 F.3d 607,

620 (D.C. Cir. 1997) (internal quotation marks omitted). Through the Third Cunningham

Declaration and the Vaughn Index, the Department has demonstrated that the case notes and

prosecution memoranda in Documents Nine, Eleven, Twelve, and Fifteen contain the thought

processes, opinions, and legal theories of the attorneys considering whether to prosecute Borda.

Such materials are “precisely the type of information universally held to be attorney-work

product,” and thus are protected from disclosure under Exemption 5. Heggestad v. U.S. Dep’t of

Justice, 182 F. Supp. 2d 1, 11 (D.D.C. 2000) (holding that “prosecution memoranda . . . created

as an integral part of the Tax Division’s investigation and its decision-making process with

regard to whether or not to prosecute” that “contain recommendations of the IRS, the United

States Attorney and the Tax Division; review notes; and letters and memoranda concerning the

handling of the case” were work product exempt from disclosure); Boyd, 87 F. Supp. 3d at 85

(holding that a “case initiation form” describing “various particulars regarding the Plaintiff’s

case” created “in the course of an investigation that was undertaken with litigation in mind” was

entirely protected under Exemption 5 (citation omitted)). Although it is conceivable that the

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prosecution memoranda, in particular, contain some factual or other background material beyond

the legal analysis of the authoring attorneys, “[t]he circuit’s case law is clear that the work-

product doctrine simply does not distinguish between factual and deliberative material.” Judicial

Watch, 432 F.3d at 371 (internal quotation marks omitted). That means that “factual material is

itself privileged when it appears within documents that are attorney work product,” and “[i]f a

document is fully protected as work product, then segregability is not required.” Id.

Document Fourteen presents a slightly different question because the Department is

unsure whether it was created by an attorney working on the case or a Drug Enforcement Agency

(“DEA”) Special Agent. In the event this document was in fact prepared by an attorney, it falls

comfortably within Exemption 5 for the reasons stated above—that is, because it is a document

created by an attorney “in the course of an investigation that was undertaken with” Borda’s

criminal prosecution in mind. Boyd, 87 F. Supp. 3d at 85 (quoting SafeCard Servs., 926 F.2d at

1202). Even if the draft was in fact authored by a DEA agent, however, the work-product

“doctrine protect[s] material prepared by agents for the attorney as well as those prepared by the

attorney himself,” United States v. Nobles, 422 U.S. 225, 238–39 (1975), and “[r]ecent cases

have generally held that draft affidavits . . . are covered by the work-product rule,” 8 Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 2024 n.23, at 510 (3d ed. 2010);

see Clemmons v. Acad. for Educ. Dev., 300 F.R.D. 6, 7–8 (D.D.C. 2013) (collecting cases).

Here, the draft affidavit was prepared “at the direction of an attorney . . . in anticipation of the

prosecution of the Plaintiff and his co-defendants.” Dkt. 40-1 at 12–13 (Third Cunningham

Decl. ¶ 29). That makes it work product, and thus exempt from disclosure under Exemption 5.

See Miller v. U.S. Dep’t of Justice, 562 F. Supp. 2d 82, 114–15 (D.D.C. 2008) (holding that “a

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draft affidavit supporting the request for plaintiff’s extradition” was properly withheld under

Exemption 5 as attorney work product despite unknown authorship of the affidavit).

CONCLUSION

For these reasons, the Court will GRANT the Department’s renewed motion for

summary judgment, Dkt. 40, and will DENY Borda’s motion to amend, Dkt. 44.

A separate order will issue.

/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge

Date: March 31, 2018

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