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Widi v. McNeil

United States District Court, D. Maine

July 19, 2017

DAVID J. WIDI, JR., Plaintiff,
v.
PAUL MCNEIL, et al., Defendants.

          ORDER ON MOTION FOR RECONSIDERATION AND RENEWED MOTION FOR SUMMARY JUDGMENT

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         The Court issues a judgment on Count XVIII, the Freedom of Information Act and Privacy Act count, of the Plaintiff's Second Amended Complaint.

         I. BACKGROUND

         The Court extensively described the background of the pending motions in multiple earlier orders in this case. Am. Order Den. Defs.' Mot. to Dismiss Count XIV, Den. Defs.' Mot. for Summ. J. as to Count XIV, and Den. Pl.'s Cross-Mot. for Summ. J. as to Count XIV (ECF No. 173)[1]; Summ. J. Order on Count XVIII (ECF No. 360); Order on Mot. for Recons. at 1-2 (ECF No. 435) (Recons. Order); Order on Renewed Mot. for Summ. J. on Count XVIII (ECF No. 437) (Renewed Order).

         The Court's May 8, 2017 Orders left three loose ends: (1) whether the attorney work product privilege applied to Executive Office of the United States Attorneys (EOUSA) Documents 14 and 18; (2) whether the documents underlying EOUSA Document 25 met Exemption 7(C); and (3) the timing behind a January 19, 2011 memorandum of a telephone conversation between Assistant United States Attorney Darcie McElwee (AUSA McElwee) and Attorney Peter Rodway. Recons. Order at 12- 16; Renewed Order at 13-15, 17.

         Following the Court's May 8, 2017 Orders, the EOUSA filed two responses, the first on May 16, 2017, EOUSA's Resp. to Order on Renewed Mot. for Summ. J. (ECF No. 438) (Renewed Resp.), and the second on May 17, 2017. EOUSA's Resp. to Order on Mot. for Recons. (ECF No. 435) (ECF No. 441) (Recons. Resp.). On June 12, 2017, Mr. Widi filed a reply to the EOUSA's response to the motion for reconsideration. Reply to EOUSA's Resp. to Order on Mot. for Recons. (ECF No. 454) (Widi Recons. Reply).

         II. THE MAY 8, 2017 ORDERS

         As noted, the Court isolated three remaining issues in its May 8, 2017 Orders: (1) whether the attorney work product privilege applied to EOUSA Documents 14 and 18; (2) whether the documents underlying EOUSA Document 25 meet Exemption 7(C); and (3) the timing behind a January 19, 2011 memorandum of a telephone conversation between AUSA McElwee and Attorney Peter Rodway. Recons. Order at 12-16; Renewed Order at 13-15, 17.

         A. EOUSA Documents 14 and 18

         The EOUSA filed a Vaughn Index on June 30, 2015. Defs.' Mot. for Summ. J., Attach. 3, Third Decl. of John F. Boseker (ECF No. 305). The EOUSA described Document 14 as “E-Mails from AUSA to AUSA . . . regarding Widi evidence on firearms and forfeiture with list of those seized and date, containing handwritten notations.” Id. at 20. The EOUSA described Document 18 as “Letters (2) from AUSA to ATF Counsel . . . regarding identified trial witness evidence in connection with both hearing date and trial date.” Id. at 21. In its August 16, 2016 Order, the Court concluded that the attorney work product privilege applied to both documents. Summ. J. Order on Count XVIII at 57-58 (ECF No. 360). The Court wrote that it was satisfied that “Documents 14 and 18 were prepared under the direction of an attorney in contemplation of litigation, and therefore entitled to Exemption 5.” Id. a 58.

         On October 11, 2016, Mr. Widi moved for reconsideration based on the argument that the EOUSA did not establish whether the documents were segregable. Mot. for Recons. of Summ. J. Order and Obj. to EOUSA's Renewed Mot. for Summ. J. on Count XVIII at 26 (ECF Nos. 370, 371) (Pl.'s Mot. for Recons.; Pl.'s Opp'n). In its May 8, 2017 Order on the motion for reconsideration, the Court expressed skepticism about whether ordering the EOUSA to perform a segregability analysis was going to be productive, but the Court agreed that First Circuit authority required such an analysis. Recons. Order at 12-14.

         B. EOUSA Document 25: Character Reference Letters

         In its May 8, 2017 Order on the motion for reconsideration, the Court expressed some confusion about the exact nature of the documents underlying the claimed exemption. Id. at 14-16. Assuming the documents were character letters that had been introduced into the court record at Mr. Widi's sentencing hearing, the Court was perplexed about why the ...


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