Jordan v. U.S. Dep't of Labor
Jordan v. U.S. Dep't of Labor
Opinion of the Court
DENYING PLAINTIFF'S "MOTION TO DISQUALIFY JUDGE CONTRERAS"; DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF ORDER GRANTING DEFENDANT'S MOTION FOR EXTENSION OF TIME; DENYING PLAINTIFF'S "MOTION FOR DISCLOSURE AND INCLUSION OF PORTIONS OF THE EMAILS AND OTHER NON-PRIVILEGED EX PARTE COMMUNICATIONS"; DENYING DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT; DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION FOR A PROTECTIVE ORDER
I. INTRODUCTION
In this Freedom of Information Act ("FOIA") case, Plaintiff Jack Jordan submitted requests with the Office of Administrative Law Judges ("OALJ"), an agency within the United States Department of Labor ("DOL"), seeking unredacted versions of two emails related to Defense Base Act Case No. 2015-LDA-00030 ("DBA Proceedings"), a case in which Mr. Jordan is representing his wife, Maria Jordan, against DynCorp International, Inc. ("DynCorp"). In a prior Opinion, this Court granted summary judgment in favor of DOL with respect to one of the emails. However, finding that DOL had insufficiently justified its withholding of the other email, the Court denied both parties' motions for summary judgment with respect to that email and instructed DOL to either release it or to file a renewed motion for summary judgment with further justification. Now before the Court is DOL's renewed motion for summary judgment. Also before the Court are Mr. Jordan's "Motion for Disclosure and Inclusion of Portions of the Emails and Other Non-Privileged Ex Parte Communications," Mr. Jordan's request that this judge recuse himself, Mr. Jordan's motion for reconsideration *29of an order granting DOL an extension of time to file a reply, and DOL's motion for a protective order barring Mr. Jordan from filing future motions without leave of Court and permitting DOL to disregard Mr. Jordan's requests for production. For the reasons explained below, the Court denies all five motions.
II. FACTUAL BACKGROUND
The Court presumes familiarity with its prior Opinion. See Jordan v. U.S. Dep't of Labor ,
Over a period of seven months, Plaintiff Jack Jordan submitted a series of FOIA requests to DOL, including a request seeking disclosure of any emails, dated July 30 or July 31, 2013, with the subject line "WPS-next steps & actions" that DynCorp's counsel had forwarded to Administrative Law Judge Larry S. Merck. See Jordan ,
However, DOL disclosed to Mr. Jordan a 2015 letter from the law firm Littler Mendelson, P.C.-which represented DynCorp in the DBA Proceedings-and a redacted version of the DynCorp email thread. See Jordan ,
The letter from Littler Mendelson stated that it had submitted to ALJ Merck unredacted versions of the emails for in camera inspection. Def.'s Cross-Mot. Summ. J. and Opp'n to Pl.'s Corrected Mot. for Summ. J. ("Def.'s Cross-Mot."), Ex. 1, Attach. D at 25, ECF No. 20-1. In the letter, Littler Mendelson maintained that the redacted portions of the email thread "concerned the status of operations issues in connection with the Worldwide Protective Services ('WPS') Program contract, which were transmitted to Christopher Bellomy, Esq.-an in-house lawyer for [DynCorp]-in order to apprise him (and other DI employees with responsibility for the administration and management of the WPS Program contract) of developments potentially impacting the contract."
Mr. Jordan later submitted additional requests related to the Powers and Huber emails. See Jordan ,
Mr. Jordan commenced this litigation in September 2016. See Compl., ECF No. 1. In his complaint, Mr. Jordan sought "[i]njunctive relief ordering the DOL to disclose to [Mr. Jordan] all previously undisclosed versions of the [DynCorp] [e]mails covered by [his request]" and "[j]udgment for reasonable attorneys' fees, if any, expenses, and costs." Compl. at 10-11; Pl.'s Unopposed Mot. Leave Amend Compl., ECF No. 19. Mr. Jordan and DOL each moved for summary judgment, with the primary dispute being whether FOIA Exemption 4 applied to the Powers and Huber emails.
Following in camera inspection of the disputed emails, the Court denied in full Mr. Jordan's Corrected Motion for Summary Judgment and granted the DOL's Cross-Motion for Summary Judgment, except with respect to the Huber email.
The Court found that both emails were "commercial" or "financial," concluding that DOL had sufficiently justified its contention that the emails pertained to the "status of operations issues in connection with a business contract."
*31Since the Court issued its August 4, 2017 Opinion, the parties have filed a number of motions. Mr. Jordan has filed (1) a "Motion for Disclosure and Inclusion of Portions of the Emails and Other Non-Privileged Ex Parte Communications" (ECF No. 40), (2) "Plaintiff's Motion to Reconsider DOL Motion for Extension of Time to File Reply Purporting to Support Summary Judgment" (ECF No. 50) and (3) a "Motion to Disqualify Judge Contreras" (ECF No. 55). DOL has filed (1) a Renewed Motion for Summary Judgment (ECF No. 41) and (2) a Motion for a Protective Order (ECF No. 43). The Court first addresses Mr. Jordan's motions then considers the motions submitted by DOL.
III. ANALYSIS
A. Motions Filed by Mr. Jordan
The Court first considers the three pending motions filed by Mr. Jordan: (1) a "Motion to Disqualify Judge Contreras" (ECF No. 55), (2) "Plaintiff's Motion to Reconsider DOL Motion for Extension of Time to File Reply Purporting to Support Summary Judgment" (ECF No. 50), and (3) a "Motion for Disclosure and Inclusion of Portions of the Emails and Other Non-Privileged Ex Parte Communications" (ECF No. 40). For the reasons explained below, the Court denies all three motions.
1. Motion to Disqualify
Mr. Jordan requests that this judge recuse himself, asserting bias and partiality. Mr. Jordan also contends that, in the course of ruling on the parties' motions in this case, this judge has engaged in criminal conduct. Finding no basis for recusal, this Court denies Mr. Jordan's motion.
"Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges." United States v. Microsoft Corp. ,
But "most questions concerning a judge's qualifications to hear a case are not constitutional ones." Bracy v. Gramley ,
"[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion."
Here, Mr. Jordan lodges myriad allegations of judicial partiality and bias, including that this judge (1) "knowingly, willfully, and repeatedly violated his oath to support and comply with the U.S. Constitution"; (2) has focused on "improper extrajudicial factors," including the marital status of Plaintiff and the DBA claimant and the DBA claimant's gender; (3) made "so many obviously false and misleading and clearly contradictory statements in his August 4, [2017] Opinion that the entire Opinion is evidence of pervasive bias and evidence that fair judgment is impossible"; (4) "has interests that could be substantially affected by this case's outcome"; (5) designed his prior opinion "in a criminal scheme to knowingly falsely contend that the DOL established facts that were crucial to the DOL's defendant, but which he knew the DOL failed to prove"; (6) authorized prohibited ex parte communications; (7) impermissibly relied on in camera review to "testify[ ]" for DOL; (8) "use[d] his [prior] opinion as a platform for criminal harassment and intimidation" by characterizing Mr. Jordan's requests for discovery in this case as a "fishing expedition" and by threatening to sanction plaintiff; (9) engaged in misconduct in violation of
Mr. Jordan's allegations of bias, partiality, and criminal behavior on the part of the Court are rambling, entirely unfounded, and-it bears mention-meritless. These accusations certainly do not meet the standard requiring recusal under Section 455 let alone the more stringent constitutional standard. The probability of bias here does not rise to a constitutionally intolerable level, and no reasonable and informed observer would question this judge's impartiality under the present circumstances. Most of Mr. Jordan's contentions do not require extended discussion as they rest entirely on this Court's rulings, and Mr. Jordan has offered no factual basis to support any claim that this Court harbors favoritism toward Defendant or antagonism toward Mr. Jordan. See SEC v. Loving Spirit Found. Inc. ,
First, several of Mr. Jordan's accusations appear to take issue with this Court's reliance on in camera inspection to confirm the propriety of DOL's withholdings. See, e.g. , Mot. to Disqualify at 9-10, 17-28, 42-45. Of course, Congress's directive and the D.C. Circuit's precedents-not Mr. Jordan's preferences-regulate when a district court may rely on in camera review. The D.C. Circuit has recognized that "Congress provided district courts the option to conduct in camera review under FOIA," and the decision whether to do so is left to "the broad discretion of the trial judge."
*34American Civil Liberties Union v. U.S. Dep't of Defense ,
Second, Mr. Jordan contends that this judge was biased based on the marital status or gender of Mr. Jordan, his client in the DBA Proceedings, or both. See Mot. to Disqualify at 28-31. As evidence, he notes that this Court mentioned in its prior Opinion that Mr. Jordan "is representing his wife" in the DBA Proceeding. Mr. Jordan asserts that "that fact must have been profoundly important to Judge Contreras on a personal level" because it is mentioned in the first paragraph of the Court's opinion and because it had no bearing on any of the Court's legal conclusions. Mot. to Disqualify at 28. Mr. Jordan is mistaken. But more importantly for present purposes, he has not offered anything more than conclusory allegations to support his claim of bias and such contentions are plainly insufficient to mandate recusal. See Klayman v. Judicial Watch, Inc. ,
Third, Mr. Jordan asserts that "Judge Contreras has a material interest in allowing the DOL to conceal the Emails from Plaintiff." Mot. to Disqualify at 14-15. However, other than baldly asserting that this judge has "essentially made himself the DOL's key witness," Mot. to Disqualify at 14, Mr. Jordan neglects to explain what this judge's interest in this matter might be. Such a claim is plainly insufficient to justify recusal. See Klayman ,
Finally, Mr. Jordan contends that this judge exhibited "open hostility toward Plaintiff" and "sought to intimidate Plaintiff into abandoning his attempts to obtain the Emails." Mot. to Disqualify at 34. Specifically, Mr. Jordan cites, among other things, this Court's admonishment of Plaintiff in its prior Opinion in this matter that his "cavalier approach to sanctions motions could result in him being sanctioned himself." Jordan ,
In sum, Mr. Jordan has demonstrated nothing other than his disapproval of this Court's prior rulings. He has not shown any basis on which an objective observer might reasonably question this Court's partiality. As the Supreme Court and the D.C. Circuit have explained, "adverse judicial decisions give 'proper grounds for appeal, not recusal.' " SEC v. Loving Spirit Found. Inc. ,
2. Motion to Reconsider Grant of Extension
Mr. Jordan next moves this Court to reconsider an order granting DOL's request for an extension of time to file its reply in support of its renewed motion for summary judgment. See Pl.'s Mot. to Reconsider DOL Mot. for Extension of Time to File Reply Purporting to Support Summ. J. ("Mot. to Reconsider Extension"), ECF No. 50. In the relevant order, this Court extended Defendant's filing deadline from September 22, 2017 to September 28, 2017. See Def.'s Mot. for Extension of Time to File Reply to Pl.'s Opp'n to DOL's Renewed Mot. for Summ. J. ("Mot. for Extension") ¶¶ 2-4, ECF No. 47; Minute Order (Sept. 21, 2017) (granting defendant's extension request). Mr. Jordan argues that this Court should reconsider, asserting that the Court (1) has "established a pattern of denying Plaintiff due process," (2) failed to properly consider Plaintiff's opposition to the request for an extension, and (3) "deliberately denied plaintiff the opportunity to be heard on" two other motions submitted by DOL. See Mot. to Reconsider Extension at 3-6, 10. Finding that reconsideration is not warranted, the Court denies Mr. Jordan's motion.
Motions for reconsideration of interlocutory orders are "within the discretion of the trial court." Lemmons v. Georgetown Univ. Hosp. ,
Here, Mr. Jordan seeks reconsideration of the Court's order extending by six days Defendant's deadline to file a reply in support of its renewed motion for summary judgment. Mr. Jordan contends that reconsideration is warranted, asserting that this Court has "established a pattern of denying [him] due process" and alleging that this Court did not properly consider his opposition to Defendant's motion. See Pl.'s Corrected Opp'n to DOL's Mot. for Extension of Time to File Reply Purporting to Support Summ. J. ("Opp'n to Extension") at 1-3, ECF No. 49. To support Mr. Jordan's latter claim, he explains that the Court issued its minute order granting Defendant's request only about two hours after Mr. Jordan filed his opposition to the motion. Opp'n to Extension at 5. Mr. Jordan also notes that, though the minute order was issued on September 21, 2018, the docket entry indicates that the order was "signed" on September 20-the day before Mr. Jordan filed his opposition to Defendant's motion. Opp'n to Extension at 5.
Mr. Jordan has not demonstrated that justice requires reconsidering the Court's order granting Defendant's request for an extension. Mr. Jordan has identified no issue on which the Court misunderstood the parties, no decision made outside the scope of the issues presented to the Court, and no change in the law or facts that would warrant reconsideration. Furthermore, the Court fails to see how its decision to grant a short extension to Defendant could possibly have deprived Mr. Jordan of due process. As for Mr. Jordan's argument that the Court's order demonstrates that it did not properly consider Mr. Jordan's opposition to the request, the Court disagrees. Mr. Jordan's conclusory statements to the contrary do not provide any basis for reconsidering the Court's grant of an extension.
In any event, if the Court were to reevaluate Defendant's request for an extension and Plaintiff's opposition to that request, the Court's ruling would be the same. Federal Rule of Civil Procedure 6(b) commits to a district court's discretion the decision to extend a party's filing deadline. See Smith v. District of Columbia ,
In opposition, Mr. Jordan asserted that the Court should deny the request because "DOL already failed to state or adduce evidence establishing dispositive facts"-an argument apparently focusing on the merits of the parties' dispute. See Opp'n to Extension at 1-3. Mr. Jordan also argued that counsel for DOL had not established good cause for its requested extension; that DOL had not discharged its obligations under the Local Rules of this court to demonstrate that it had made a good faith effort to narrow the areas of disagreement; that DOL had only implied and had not clearly stated that counsel who had a prearranged vacation was "crucial to the preparation" the reply; that counsel for DOL had failed to identify the particular cases for which he had other impending deadlines and had not indicated whether he had sought extensions in those matters; that counsel for DOL had evaded Plaintiff's request for information about whether other attorneys were working on the reply; and that, based on the date on which Defendant filed its renewed motion for summary judgment, it could have and should have anticipated that its reply would be due on September 22. Opp'n to Extension at 3-8. Contrary to Mr. Jordan's assertions, DOL established cause for the short extension. Furthermore, Mr. Jordan offered no compelling reason to deny DOL's request. In this District, requests for extensions of short durations are routine. The civility of most counsel appearing before this Court results in most requests of this nature premised on prearranged vacations and the press of business being unopposed. Also routine in this District is the fact that most motions are pending for several months before being resolved due to the press of the Court's business and the volume of substantive motions filed. Thus, faced with a routine motion for an extension of a short duration based on a prearranged vacation and the press of business, and knowing that the Court was months away from turning its attention to the motion, the Court easily granted the motion and plaintiff suffered no prejudice as a result. In sum, even if this Court were to reconsider its earlier ruling, it would not revise it. Mr. Jordan's motion is denied.
3. "Motion for Disclosure and Inclusion of Portions of the Emails and Other Non-Privileged Ex Parte Communications"
Mr. Jordan's third and final pending motion contests various aspects of the Court's prior Opinion. It also asks this Court to disclose (1) a version of the Powers email that shows any attorney-client privilege notation and any non-commercial words stating an express request for advice; (2) any verbal or written communication in which this Court received any factual information about the redacted content of any of the disputed emails or Mr. Bellomy's status as an attorney and whether he was employed in advising DynCorp; and (3) any non-commercial words in DOL's communications with the Court in or with which DOL submitted any version of the Powers email or the Huber email.
*38See Mot. for Ex Parte Commc'n at 17-18. Having considered Mr. Jordan's contentions, the Court denies the motion.
a. Motion for Reconsideration
Much of Mr. Jordan's motion asks this Court to retread ground already covered in this Court's prior Opinion. Mr. Jordan contends that (1) the Court's findings about the content of the DynCorp emails were not established and were refuted by evidence in the public record; (2) no evidence on record established that Mr. Bellomy was an attorney to DynCorp or that he was giving DynCorp advice regarding the subject matter of the emails; (3) no evidence in the public record established that the Powers email contains the notation "subject to attorney-client privilege"; (4) no evidence in the record established that the emails contained an express request for legal advice; (5) the declaration submitted by Mr. Smyth was "very clearly knowingly false, designed to mislead, and not made on personal knowledge"; (6) there is no legitimate reason for DOL to have failed to disclose a version of the Powers email showing either the notation "subject to attorney-client privilege" or any generic non-commercial words stating an express request for advice; (7) DynCorp waived any privilege covering the emails; and (8) the Court should have assessed Mr. Jordan's request under provisions of the Administrative Procedure Act ("APA").See Mot. for Ex Parte Commc'n. Because all of the above-mentioned issues were decided in the Court's prior Opinion, the Court construes Mr. Jordan's contentions as a request for reconsideration. Finding that reconsideration is not warranted, to the extent that Mr. Jordan asks this Court to reconsider its prior determinations, Mr. Jordan's motion is denied.
As the Court explained above, motions for reconsideration of interlocutory orders are "within the discretion of the trial court." Lemmons ,
*39Mr. Jordan has not met his burden of showing that reconsideration of any issue discussed in the Court's prior Opinion is warranted here. He has identified no issue on which the Court patently misunderstood the parties, no decision outside the adversarial issues presented to the Court by the parties, no error of apprehension, and no significant or controlling change in the law that might justify reconsideration of this Court's reasoned prior determinations. He has likewise failed to identify any other good reason for revisiting these arguments. Mr. Jordan apparently hopes to reargue factual and legal contentions that this Court has already rejected. He ignores, however that "[i]n this Circuit, it is well-established that 'motions for reconsideration,' whatever their procedural basis, cannot be used as 'an opportunity to reargue facts and theories upon which a court has already ruled." Estate of Gaither ex rel. Gaither v. District of Columbia ,
Though the Court will not revisit the fine details of its decision again here, it bears briefly explaining that Mr. Jordan appears to misapprehend the applicable legal burden in FOIA cases. Yes, the agency has the burden of proving the applicability of any claimed FOIA exemption. See Larson v. Dep't of State ,
b. Motion for Disclosure
In addition to asking this Court to revisit aspects of its prior Opinion, Mr. Jordan asks the Court to disclose certain information. Specifically, Mr. Jordan requests (1) a version of the Powers email that shows any attorney-client privilege notation and any non-commercial words stating an express request for advice; (2) any non-public verbal or written communication in or with which the Court received any factual information about the redacted content of the emails or Mr. Bellomy's status as an attorney and whether he was employed in advising DynCorp; and (3) any non-commercial words in the DOL's communication with the Court in or with which the DOL submitted any version of the Powers email or the Huber email. Mr. Jordan contends that Federal Rule of Evidence 106, the District of Columbia Code of Judicial Conduct, and notions of fairness require this Court to disclose such information. The Court disagrees and denies Mr. Jordan's motion.
First, Mr. Jordan relies on Federal Rule of Evidence 106, which provides that "[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part-or any other writing or recorded statement-that in fairness ought to be considered at the same time." Fed. R. Evid. 106. Rule 106 partially codifies the common law "rule of completeness," which holds that "when one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through *40presentation of another portion, the material required for completeness is ipso facto relevant and therefore admissible." Beech Aircraft Corp. v. Rainey ,
It is abundantly clear that neither Federal Rule of Evidence 106 nor general notions of fairness require a government agency or a court to release to a FOIA requester portions of a partially released record that the agency contends are protected by a FOIA exemption. The language of the FOIA statute establishes that portions of an agency record may be properly withheld even if other portions must be released. See
Second, Mr. Jordan argues that under various provisions of the Code of Judicial Conduct of the District of Columbia, "the [disputed] Emails were received by the Court in an ex parte communication that was prohibited" and, thus, the emails-or, at least portions of the emails-must be released to him. Mot. for Disclosure at 33-43. As an initial matter, the Code of Judicial Conduct of the District of Columbia applies to the local courts of the District of Columbia, not to federal *41courts located in the District of Columbia. See J. Comm. on Judicial Admin. Res., D.C. Courts (Feb. 15, 2018) (adopting "the 2018 Edition of the Code of Judicial Conduct for the District of Columbia Courts"); J. Comm. on Judicial Admin. Res., D.C. Courts (Nov. 15, 2011) (adopting an amended version of the 2007 American Bar Association Model Code of Judicial Conduct as the "Code of Judicial Conduct for the District of Columbia Courts"); see also Application, Code of Judicial Conduct, D.C. Courts, https://www.dccourts.gov/sites/default/files/divisionspdfs/Code-of-Judicial-Conduct_2018.pdf. Thus, this Court will instead look to the Code of Conduct for United States Judges, which applies to federal court judges, to assess Mr. Jordan's arguments. In pertinent part, Canon 3 of the Code of Conduct for United States Judges states that "[e]xcept as set out below, a judge should not initiate, permit, or consider ex parte communications or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers." Canon 3(A)(4), Code of Judicial Conduct for United States Judges. The provision goes on to state that "[a] judge may initiate, permit, or consider ex parte communications as authorized by law."
B. Motions Filed by DOL
The Court next considers the two pending motions filed by DOL: (1) a renewed motion for summary judgment, which asserts that the Huber email is properly withheld pursuant to FOIA Exemption 4, and (2) a motion for a protective order. For the reasons explained below, the Court denies both motions.
1. Renewed Motion for Summary Judgment
DOL renews its request for summary judgment with respect to the Huber email, arguing once again that FOIA Exemption 4 exempts that document from disclosure.
As the Court explained in its prior Opinion, FOIA Exemption 4 exempts "trade secrets and commercial or financial information obtained from a person and privileged or confidential" matters from disclosure.
DOL's renewed motion for summary judgment argues that information in the Huber email is protected by attorney-client privilege because "the Huber email was specifically conveyed to DynCorp's in-house attorney, Mr. Bellomy, for his review so that he would be able to form a legal basis for advising on and advocating for DynCorp's position regarding the business contract." Def.'s MSJ Mem. at 8. DOL includes a declaration from Mr. Huber. See Decl. of Robert A. Huber ("Huber Decl."), ECF No. 41-1. That declaration explains that Mr. Huber worked as Senior Contracts Director for DynCorp at the time of the email exchange. Id. ¶ 2. According to Mr. Huber, the DynCorp emails pertained to a situation in which the State Department had "short paid invoices [DynCorp] submitted for processing." Id. ¶ 3. Mr. Huber asserts that he copied Mr. Bellomy on the Huber email, which was specifically addressed to Darin Powers, "purposefully" to "keep [Mr. Bellomy] apprised of the [company's] ongoing discussions as they related to the short paid invoices." Id. ¶ 4. Mr. Huber contends that he knew from his experience at the company that "[DynCorp's] in-house lawyers would be involved in any potential claims process with the State Department and, therefore, Mr. Bellomy needed to have a complete understanding of the facts underlying any future claim in order to form a legal basis for advocating [DynCorp's] position with the State Department." Id.
The Court disagrees with DOL and concludes that the Huber email is not protected by attorney-client privilege. As the Court explained in its prior Opinion, attorney-client privilege protects "confidential *43disclosures between an attorney and [its] client regarding factual and legal matters." Jordan ,
Here, DOL seems to argue that the Huber email qualifies for protection under the attorney-client privilege because it was sent as part of DynCorp's broader efforts to address a legal issue and because it was sent to an in-house attorney to provide him "with a complete understanding of the facts relevant to the matter that was being discussed in the email." Def.'s MSJ Mem. at 10. The Court disagrees and concludes that, contrary to DOL's contentions, the Huber email is not protected by attorney-client privilege and must be produced.
Several factors buttress this conclusion. First, it is difficult to say, under the circumstances of this case, that one of the primary purposes of the Huber email was to obtain legal advice. The email is specifically directed to another person-a non-attorney-and the email specifically (and only) seeks information from that person. It is not at all apparent from DOL's submissions how Mr. Huber's request that Mr. Powers provide *44certain information might in any way shape Mr. Bellomy's legal advice on the business contract or any other legal matter. DOL's contention that some broader legal problem existed in the background is insufficient to connect this specific communication to that legal problem or to any prospective legal problem.
2. Motion for Protective Order
Finally, the Court considers DOL's motion for a protective order. In its motion, DOL contends that Mr. Jordan's "Motion for Disclosure and Inclusion of Portions of the Emails and Other Non-Privileged Ex Parte Communications" "appears to be a harassing, unnecessary, and frivolous motion, which merely causes unnecessary delay and wastes the time of the Court and the parties." Def.'s Opp'n to Mot. for Disclosure & Mot. for Protective Order ("Mot. for Protective Order") at 4, ECF No. 43. DOL asks that this Court grant Defendant "a protective order from responding to Plaintiff's second set of requests for production and any pending motions, and requiring that any future motions be made only with leave of Court."
Federal Rule of Civil Procedure 26(c) provides that a "court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c). "However, ... the parties must have first attempted to resolve the issues in good faith before resorting to a court issued protective order." Convertino v. U.S. Dep't of Justice ,
Defendant has neglected to satisfy one of the requirements for seeking a protective order. Namely, Defendant has not "include[d] a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action," as Rule 26 requires. Fed. R. Civ. P. 26(c). Defendant attached along with its motion, a series of email communications between counsel. But none of these communications involve any attempt to narrow the focus of any discovery request or any request that Mr. Jordan cease filing further motions. See Def.'s Ex. 2, ECF No. 42-2. Because certification of either good faith or attempts to confer is mandatory, the Court denies Defendant's motion without prejudice. However, Defendant may submit a renewed motion for a protective order, if it wishes and if warranted, that satisfies the requirements of Rule 26(c). But regardless, given that this Court has now ruled on the appropriateness of DOL's withholding pursuant to FOIA of the only two emails at issue in this case, this case is near completion and the necessity for a protective order is-this Court hopes-greatly diminished.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Mr. Jordan's "Motion for Disclosure and Inclusion of Portions of the Emails and Other Non-Privileged Ex Parte Communications," Mr. Jordan's request that this judge disqualify himself, Mr. Jordan's motion for reconsideration of an order granting DOL an extension of time to file a reply, DOL's renewed motion for summary judgment, and DOL's motion for a protective order. DOL must release to Mr. Jordan an unredacted version of the Huber email. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
The Court also resolved a litany of other motions that Mr. Jordan had filed. See Jordan ,
The Supreme Court described this standard by reference to the Fourteenth Amendment Due Process Clause, which does not apply to the federal government. See Bolling v. Sharpe ,
The recusal of federal district court judges is also governed by
Mr. Jordan initially requested any ECF notices that the Court sent to DOL on October 19 and 25, 2016. See Mot. for Ex Parte Commc'n at 6. However, he later withdrew that request. See Pl.'s Opp'n to DOL's Mot. for Protective Order at 6 n.1, ECF No. 45.
The transmittal letter submitted to the Court by Defendant along with the disputed documents contains no factual information. However, in an abundance of caution, the Court has added that letter to the public record. See Transmittal Letter, ECF No. 58.
DOL also argues that this Court should not permit Mr. Jordan to use a FOIA lawsuit as an end-run around the Office of Administrative Law Judges' determination that the disputed documents were protected by privilege. See Def.'s MSJ Mem. at 3 n.1. Though this Court is sympathetic to DOL's position, DOL has failed to provide a legal basis to avoid such a situation. For example, DOL has not argued-and certainly has not demonstrated-that collateral estoppel applies to any determination made by the ALJ. Likewise, DOL has failed to provide any authority supporting the proposition that the Court can ignore the requirements of FOIA based on such equitable considerations.
Because the Court finds that the attorney-client privilege does not protect the Huber email, the Court does not address Mr. Jordan's other arguments for release of that record. Moreover, the Court does not address arguments for reconsideration of the Court's prior Opinion that appear in Mr. Jordan's opposition to DOL's motion for summary judgment. As the Court explained in detail above, Mr. Jordan has not shown that reconsideration is warranted.
Although Mr. Jordan did not move for summary judgment, the Court concludes that sua sponte entry of summary judgment in his favor with regard to the Huber email is warranted. "[D]istrict courts are widely acknowledged to possess the power to enter summary judgments sua sponte , so long as the losing party was on notice that [it] had to come forward with all of [its] evidence." Bayala v. U.S. Dep't of Homeland Security ,
DOL argues that Mr. Huber copied in-house attorney Mr. Bellomy on the email to keep him apprised of business communications because, if a legal dispute arose, Mr. Bellomy would need to "have a complete understanding of the facts underlying any future claim in order to form a legal basis for advocating [DynCorp's] position." Def.'s MSJ Mem. at 8-9 (quoting Huber Decl. ¶ 4). But this concept is virtually limitless-nearly all business communications have some vague connection to a possible, future legal dispute. Sending all business-related communications to an attorney does not render those communications protected under attorney-client privilege.
Reference
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- Jack JORDAN v. U.S. DEPARTMENT OF LABOR
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