Court orders production of Seth Rich laptop ~ Oct. 3, 2022

____________________________________________________________________________________________________

United States District Court

EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

BRIAN HUDDLESTON,

Plaintiff

, v. FEDERAL BUREAU OF INVESTIGATION and UNITED STATES DEPARTMENT OF JUSTICE,

Defendants

. § § § § § § § § § § Civil Action No. 4:20-CV-00447 Judge Mazzant

MEMORANDUM OPINION AND ORDER

Pending before the Court are Defendants’ Motion for Summary Judgment

(Dkt. #39), and Plaintiff’s Cross-Motion for Summary Judgment (Dkt. #46). After reviewing the motions and the applicable law, the Court finds that Defendants’ motion should be

GRANTED in part

and

DENIED in part

, and Plaintiff’s motion should be

GRANTED in part

and

DENIED in part. BACKGROUND

The history of this dispute goes back to July 10, 2016, on the streets of Washington, D.C. Around 4:20 a.m., Seth Conrad Rich (“Seth Rich”), a 27-year-old Democratic National Committee (“DNC”) employee, was gunned down and killed in what was purportedly a botched robbery. Almost immediately after his death, rumors began circulating that Seth Rich was responsible for publicly leaking thousands of DNC e-mails related to the involvement of Russian hackers in the presidential election of the 45th President of the United States, Donald J. Trump (“President Trump”). On May 17, 2017, former director of the Federal Bureau of Investigation (“FBI”) Robert

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2 Mueller (“Mueller”), was appointed as special counsel to investigate the matter. Approximately two years later, Mueller’s report of his investigate findings (the “Mueller Report”) was released to the public. The Mueller Report found that the Russian government interfered in the 2016 presidential election in a sweeping and systematic fashion, but it did not find sufficient evidence that President Trump’s campaign colluded with the Russians to influence the election. The Mueller Report also found that the Russian government was responsible for publicly releasing the DNC e-mails online, and Seth Rich played no role in this scheme.

Clevenger v. FBI

On September 1, 2017, Ty Clevenger (“Clevenger”)—Plaintiff Brian Huddleston’s (“Huddleston”) current counsel of record—submitted a Freedom of Information Act (“FOIA”) request to the FBI seeking to obtain information on Seth Rich’s involvement in the DNC e-mail leaks.

Clevenger v. D.O.J., et al.

, No. 1:18-CV-1568, 2020 WL 1846565 (E.D.N.Y. Apr. 3, 2020). In relevant part, Clevenger requested “all records and correspondence pertaining to Seth Conrad Rich, who was murdered in the District of Columbia on or about July 10, 2016.”

Id.

at *3. His request “included, but was not limited to, any records or correspondence resulting from any investigation of [Seth Rich’s] murder.”

Id.

By letter dated September 19, 2017, the FBI responded to Clevenger’s request, stating the FBI had conducted a search of its central database but was unable to locate any responsive main file records.

Id.

at *7. On September 30, 2017, Clevenger submitted an administrative appeal of the FBI’s determination, alleging the FBI improperly limited its search to only main file records in the FBI’s central database. Clevenger alleged the FBI should be compelled to conduct a thorough search, including e-mails and other records, physically or otherwise stored in the FBI’s Washington Field Office (“WFO”). On November 9, 2017, the Office of Information Policy (“OIP”) affirmed the

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3 FBI’s determination.

Consequently, Clevenger filed suit against the FBI and the Department of Justice (“DOJ”) (collectively, the “Government”) in the Eastern District of New York. On January 27, 2020, Clevenger discovered that a two-page e-mail chain responsive to his request had been produced by the FBI in an unrelated lawsuit brought by Judicial Watch, Inc. The e-mail was sent on August 10, 2016, from an FBI employee in the FBI’s WFO to other FBI personnel. The subject line of the e-mail read: “Seth Rich.” The e-mail chain began with the WFO employee advising that various news outlets were “[r]eporting today that Julian Assange suggested during a recent overseas interview that DNC Staffer, Seth Rich was a Wikileaks source and may have been killed because he leaked the DNC e-mails to his organization, and that WikiLeaks was offering $20,000 for information regarding Rich’s death last month” (Dkt. #54, Exhibit 1 ¶ 6). The WFO employee further advised that additional press coverage was anticipated and wanted to discuss what involvement the FBI had in the investigation. In response, an FBI employee stated that they were aware of the reporting but were not aware of any specific FBI involvement in any related case. Despite containing Seth Rich’s name in both the subject line and body of the e-mail, and despite the context of the e-mail being related to the DNC e-mail leak scandal, this e-mail was never identified or produced by the FBI in response to Clevenger’s FOIA request. As a result, Clevenger requested the Eastern District of New York grant summary judgment in his favor, claiming that the Government’s search was inadequate because it failed to locate the e-mail and thus failed to search all locations likely to contain records responsive to his request.

Clevenger

, 2020 WL 1846565,

at *8. However, the court disagreed. The court found that the Government’s search was “reasonably calculated to locate responsive documents.”

Id.

at *8, *13. Accordingly,

The OIP is a department within the DOJ that oversees agency compliance with FOIA.

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4 on April 3, 2020, the court granted summary judgment in favor of the Government and dismissed Clevenger’s lawsuit.

Id.

at *20.

II.

Huddleston v. FBI

On April 9, 2020, Huddleston submitted his first FOIA request to the FBI that, among other information, requested all records pertaining to Seth Rich (Dkt. #3, Exhibit 1) (the “First Request”). Specifically, the First Request sought: 1.

All data, documents, records, or communications (electronic or otherwise) created or obtained since January 1, 2016, that discuss or reference Seth Rich or Aaron Rich. This would include, but is not limited to, all data documents, records, or communications in the Washington Field Office, Computer Analysis Response Team (“CART”), and any other “cyber” unit within the FBI. 2.

All data, documents, records, or communications regarding any person or entity’s attempt to hack into Seth Rich’s electronic or internet accounts (e.g., e-mail) after his death. 3.

All data downloaded from all electronic devices that belonged to Seth Rich as well as all data, documents, records or communications indicating how the devices were obtained and who was responsible for downloading the information. 4.

All data, documents, communications, records or other evidence indicating whether Seth Rich, Aaron Rich, or any other person or persons were involved in transferring data from the Democratic National Committee to Wikileaks in 2016, either directly or through intermediaries. This request includes, but is not limited to, any reports from CrowdStrike, Inc. that were obtained by the FBI while assisting Special Counsel Robert Mueller’s investigation. 5.

All documents, communications, records or other evidence reflecting orders or directions (whether formal or informal) for the handling of any evidence pertaining to Seth Rich’s or Aaron Rich’s involvement in transferring data from the Democratic National Committee to Wikileaks. 6.

All documents, records, or communications exchanged with any other government agencies (or representatives of such agencies) since January 1, 2016, regarding (1) Seth Rich’s murder or (2) Seth Rich’s or Aaron Rich’s involvement in transferring data from the Democratic National Committee to Wikileaks. 7.

All recordings, transcripts, or notes (e.g., FD-302 forms) reflecting any interviews of Aaron Rich, Deborah Sines or any other witness regarding (1) the death of Seth Rich, (2) the transfer of data from the Democratic National Committee to Wikileaks,

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5 or (3) any attempt to hack into electronic or internet accounts (e.g., e-mail) belonging to Seth Rich. 8.

All data, documents, records or communication obtained or produced by the FBI’s Computer Analysis and Response Team (“CART”) or any other FBI cyber unit regarding Seth Rich and/or Aaron Rich. 9.

All data, documents, records or communications (including texts or e-mails) that reflect any meetings or communications from July 10, 2016 until July 10, 2017 between former FBI Deputy Director Andrew McCabe and any and all of the following: (1) Seymour Myron “Sy” Hersh (born on or about April 8, 1937); (2) Washington, D.C. Mayor Muriel Bowser; and/or (3) former Democratic National Committee Interim Chairwoman Donna Brazile. 10.

If any of the items or things requested in this subpoena were discarded or destroyed produce all data, documents, records or communication reflecting that fact. (Dkt. #3, Exhibit 1). On June 1, 2020, because the Government had not yet responded to Huddleston’s First Request, Huddleston filed suit in the Eastern District of Texas (Dkt. #1). On June 1, and June 5, 2020, Huddleston submitted two more FOIA requests (Dkt. #2 ¶¶ 7, 8). Huddleston’s June 1 request (the “Second Request”) again, in addition to other information, sought records related to Seth Rich: 1.

Documents, records or communications revealing the code names assigned to any and all individuals as part of the Crossfire Hurricane investigation. 2.

Documents, records, or communications revealing the code names assigned to any and all sub-sections of the Crossfire Hurricane investigation. 3.

Documents, records, or communications revealing the code names assigned to Seth Conrad Rich. 4.

Documents, records, or communications revealing the code names assigned to Aaron Nathan Rich. (Dkt. #3, Exhibit 2). Huddleston’s June 5 request (the “Third Request”) generally sought the same information as requested in the First and Second Requests (Dkt. #3, Exhibit 3). In sum, the information Huddleston requested through his three FOIA requests related to the following four

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6 topics: (1) records on Seth Rich; (2) records on Aaron Rich; (3) records on Deborah Sines; and (4) records on meetings and communications between former FBI Director Andrew McCabe and Seymour Myron Hersh, Washington D.C. Mayor Muriel Bowser, and DNC Interim Chairwoman Donna Brazile. By letter dated June 19, 2020, the Government acknowledged receipt of Huddleston’s First Request (Dkt. #39, Exhibit 1 ¶ 11). In stark contrast to the FBI’s response to Clevenger’s nearly identical FOIA request—where again, the FBI found

zero

responsive records—the FBI now acknowledged that it possessed over 20,000 pages of potentially relevant material (Dkt. #10 at p. 2). By April 8, 2021, the Government asserted that of the potentially 20,000 pages of responsive records, it had “identified approximately 1,563 pages of potentially responsive records for further processing by the FBI” (Dkt. #21 at p. 2). By April 23, 2021, the Government had processed 500 of those pages, releasing 68 pages of material to Huddleston while withholding 508 other pages pursuant to various FOIA exemptions (Dkt. #39, Exhibit 1 ¶ 16). On May 24, 2021, the Government processed another 500 pages, and from that batch, released 52 pages to Huddleston and withheld 448 pages under various FOIA exemptions (Dkt. #39, Exhibit 1 ¶ 17). On June 24, 2021, the Government processed another 489 pages, this time releasing only 5 pages to Huddleston and withholding the remainder under various FOIA exemptions (Dkt. #39, Exhibit 1 ¶ 18). Finally, on July 23, 2021, the Government processed another 31 pages, releasing 2 pages to Huddleston and withholding the rest under various FOIA exemptions (Dkt. #39, Exhibit 1 ¶ 19). As of May 5, 2022, the Government asserts that production is still ongoing (Dkt. #54).

III.

Relevant Procedural History

On June 15, 2021, Huddleston filed a Motion for

In Camera

Review of “all responsive

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7 documents” in unredacted form that he alleged the Government improperly withheld or redacted (Dkt. #28). At the time, the Government’s production of documents was still ongoing. Accordingly, the Court found Huddleston’s request premature and denied

in camera

review (Dkt. #32). However, the Court denied the motion without prejudice, indicating that it could be refiled upon completion of the Government’s production. Approximately six months later, on December 26, 2021, the Government filed the present motion for summary judgment (Dkt. #39). The Government attached multiple documents in support, including: (1)

The FBI’s

Vaughn

index (Dkt. #39, Exhibit 1 at pp. 156–243); (2)

The OIP’s

Vaughn

index (Dkt. #39, Exhibit 2 at pp. 49–64); (3)

The Declaration of Michael G. Seidel (“Seidel”), Section Chief of the Record/Information Dissemination Section, Information Management Division of the FBI, in support of the FBI’s

Vaughn

index (Dkt. #39, Exhibit 1 at pp. 1–89) (“Seidel Declaration”);

(4)

The Declaration of Vanessa R. Brinkman (“Brinkman”), Senior Counsel in the OIP of the DOJ, in support of the DOJ’s

Vaughn

index (Dkt. #39, Exhibit 2 at pp. 1–35) (“Brinkman Declaration”);

and, (5)

The Declaration of Theodore B. Smith (“Smith”), Attorney-Advisor with the Executive Office for United States Attorneys of the DOJ, in support of the DOJ’s

Vaughn

index (Dkt. #39, Exhibit 3) (“Smith Declaration”). The

Vaughn

indices collectively discuss approximately 1,596 pages of responsive documents. Of those documents, the Government withheld 1,469 pages under various FOIA exemptions “or as duplicates to material reviewed and processed elsewhere in the productions” that it had already

Throughout the pendency of this action, the Government has submitted multiple versions of Seidel’s Declaration. Where necessary, the Court will distinguish the versions as follows: (1) Seidel First Declaration (Dkt. #10, Exhibit 1); (2) Seidel Second Declaration (Dkt. #12, Exhibit 1); (3) Seidel Third Declaration (Dkt. #23, Exhibit 1); (4) Seidel Fourth Declaration (Dkt. #39, Exhibit 1 at pp. 1–89); and (5) Seidel Fifth Declaration (Dkt. #54, Exhibit 1).

The Government has filed two different versions of Brinkman’s Declaration, which the Court will refer to as Brinkman First Declaration (Dkt. #39, Exhibit 1) and Brinkman Second Declaration (Dkt. #54, Exhibit 2).

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8 provided to Huddleston (Dkt. #39 at p. 21). On February 7, 2022, Huddleston filed a response and cross-motion for summary judgment, in which he renewed his original request for

in camera

review (Dkt. #46). On May 2, 2022, the Government filed a motion for

in camera

review of a ten-page report (Dkt. #44). On May 6, 2022, Huddleston filed a response to the Government’s request for

in camera

review and therein again renewed his original request for review of “all relevant documents” (Dkt. #57). On July 28, 2022, the Court determined that

in camera

review was necessary but not of “all relevant documents” as Huddleston desired (

see

Dkt. #68). Instead, the Court granted

in camera

review only of the Government’s ten-page report. The Court has since completed

in camera

review of the report. The Government filed its reply in support of summary judgment on May 2, 2022 (Dkt. #54), to which Huddleston filed a sur-reply on May 21, 2022 (Dkt. #65). Consequently, the parties’ cross-motions for summary judgment are now ripe for review.

LEGAL STANDARD

The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses.

Celotex Corp. v. Catrett

, 477 U.S. 317, 323–24 (1986). In general, summary judgment is proper under Rule 56(a) of the Federal Rules of Civil Procedure “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” F

P. 56(a). However, this standard is modified in the FOIA context. In order to recover on a claim for violation of FOIA, the plaintiff must show “that an agency has (1) improperly (2) withheld (3) agency records.”

Kissinger v. Reps. Comm. for Freedom of the Press

, 445 U.S. 136, 150 (1980). Thus, “the threshold question in any FOIA suit is whether the requester can even

see

the documents the character of which determines whether they can be released.”

Batton v. Evers

, 598 F.3d 169, 175 (5th Cir. 2010) (quoting

Cooper Cameron v. U.S.

Case 4:20-cv-00447-ALM Document 70 Filed 09/29/22 Page 8 of 53 PageID #: 2503

Dep’t of Lab., OSHA

, 280 F.3d 539, 543 (5th Cir. 2002)). The agency is entitled to summary judgment if “the agency proves that it has fully discharged its obligations under FOIA, and there is no genuine issue of material fact, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.”

Gahagan v. U.S.C.I.S.

, 147 F. Supp. 3d 613, 620 (E.D. La. 2015) (citing

Weisberg v. D.O.J.

, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). When an agency asserts that documents or portions of documents are exempt from disclosure under a FOIA exemption, the court conducts a

de novo

review to ascertain whether the claimed exemption applies. 5 U.S.C. § 552(a)(4)(B);

Cooper Cameron Corp.

, 280 F.3d at 543. The agency has the burden of proving that withheld documents are properly exempt from disclosure and may satisfy this burden through the submission of affidavits or declarations.

Highland Cap. Mgmt., LP v. I.R.S.

, 408 F. Supp. 3d 789, 801 (N.D. Tex. 2019);

Gahagan

, 147 F. Supp. 3d at 620. The affidavits must be clear, specific, and reasonably detailed while describing the withheld information in a factual and nonconclusory manner.

Cooper Cameron Corp.

, 280 F.3d at 543. Thus, “because the burden to establish an exemption remains with the agency, the district court should not grant summary judgment based on a ‘conclusory and generalized assertion, even if the FOIA requester has not controverted that assertion.’”

Batton

, 598 F.3d at 175

(quoting

Cooper Cameron Corp.

, 280 F.3d at 543). Accordingly, “a court ‘generally will grant an agency’s motion for summary judgment

only if

the agency identifies the documents at issue and explains why they fall under exemptions.’”

Id.

In analyzing affidavits and declarations submitted by an agency, the agency’s affidavits are entitled to a “presumption of legitimacy.”

Negley v. F.B.I.

, 589 F. App’x 726, 730 (5th Cir. 2014);