Huddleston v. Fed. Bureau of Investigation

1

BRIAN HUDDLESTON, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION and UNITED STATES DEPARTMENT OF JUSTICE, Defendants.

Civil Action No. 4:20-cv-00447

United States District Court, E.D. Texas, Sherman Division

November 28, 2023

MEMORANDUM OPINION AND ORDER

AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE

Pending before the Court are Defendant FBI's Motion for Clarification, or in the Alternative, Reconsideration of the Memorandum Opinion and Order Entered September 29, 2022 (Dkt #73) and Plaintiff's Motion for Clarification of the Memorandum Opinion and Order Entered September 29, 2022 (Dkt #77). Having considered the motions and the relevant pleadings, the Court finds that Defendant FBI's Motion for Clarification, or in the Alternative, Reconsideration of the Memorandum Opinion and Order Entered September 29, 2022 (Dkt. #73) should be DENIED. Further, having considered the motion and the relevant pleadings, the Court finds that Plaintiff's Motion for Clarification of the Memorandum Opinion and Order Entered September 29, 2022 (Dkt #77) should be GRANTED in part and DENIED in part.

BACKGROUND

This Memorandum Opinion and Order arises in the context of Freedom of Information Act litigation between Plaintiff Brian Huddleston and Defendants Federal Bureau of Investigation (the “FBI”) and the United States Department of Justice (the “DOJ”). The Court will not belabor on the case's background here because it has already been discussed in detail in the Court's Memorandum Opinion and Order from September 29, 2022 (the “Prior Order”) (Dkt. #70).

On September 29, 2022, the Court entered the Prior Order requiring the FBI and the DOJ to “produce the information it possesses related to Seth Rich's laptop and responsive to Plaintiff's FOIA requests” (Dkt. #70). The Prior Order did not specify whether the FBI and DOJ must produce the information it possesses related to Seth Rich's work laptop or personal laptop (Dkt. #70). However, all analysis in the Prior Order discussed Seth Rich's personal laptop, as opposed to Seth Rich's work laptop (Dkt. #70). Additionally, the Prior Order did not address whether the FOIA exemptions 7(D) and 7(E) apply to Seth Rich's personal laptop (Dkt. #70).

On October 27, 2022, the FBI filed a motion for clarification, or in the alternative, reconsideration regarding the Prior Order (Dkt. #73). This motion requests for the Court to reconsider whether FOIA exemptions 7(D) and 7(E) apply to information related to Seth Rich's personal laptop (Dkt. #73).^[1] The FBI does not actually have Seth Rich's personal laptop, but rather it has a compact disk containing images of Seth Rich's personal laptop (Dkt. #84, Ex. 1 ¶ 5). Further the FBI has not extracted the information contained on the compact disk (Dkt. #84, Ex. 1 ¶ 6).^[2] On November 10, 2022, Huddleston filed his response (Dkt. #76). On December 12, 2022, the FBI filed its reply (Dkt. #84). On January 13, 2023, Huddleston filed his sur-reply (Dkt. #93).

On November 14, 2022, Huddleston filed a motion for clarification regarding the Prior Order (Dkt. #77). Huddleston requested clarification regarding Rich's work laptop because the Prior Order did not expressly address the work laptop (Dkt. #77). On December 12, 2022, the FBI filed its response (Dkt. #84). On January 13, Huddleston filed his reply (Dkt. #92).

In its response to Huddleston's motion, the FBI noted that it had located additional items (Dkt. #84 at p. 4) The first two items were a DVD and a tape drive (Dkt. #84 at p. 4-5). The FBI found these items stored in the same evidence control room as the work laptop (Dkt. #84 at p. 4). The FBI also found a letter from a third party that accompanied the work laptop, two chain of custody forms, and a three-page report detailing actions by a third party outside entity to image the work laptop (Dkt. #84 at p. 5). These three items were attached to the work laptop, DVD, and tape drive and not uploaded to the relevant electronic case file (Dkt. #84 at p. 6).

LEGAL STANDARD

A motion seeking reconsideration may be construed under Federal Rule of Civil Procedure 54(b), 59(e), or 60(b) depending on the circumstances. “The Fifth Circuit recently explained that ‘Rule 59(e) governs motions to alter or amend a final judgment,' while ‘Rule 54(b) allows parties to seek reconsideration of interlocutory orders and authorizes the district court to revise at any time any order or other decision that does not end the action.'” Dolores Lozano v. Baylor Univ., No. 6:16-CV-403-RP, 2018 WL 3552351, at *1 (W.D. Tex. July 24, 2018) (quoting Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017)). Further, “‘[i]nterlocutory orders,' such as grants of partial summary judgment, ‘are not within the provisions of 60(b), but are left within the plenary power of the court that rendered them to afford such relief from them as justice requires [pursuant to Rule 54(b)].” McKay v. Novartis Pharm. Corp., 751 F.3d 694, 701 (5th Cir. 2014) (quoting Zimzores v. Veterans Admin., 778 F.2d 264, 266 (5th Cir. 1985)) (citing Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 585, 862 (5th Cir. 1970)).

Because this is a motion seeking reconsideration of an interlocutory order, the Court uses Federal Rule of Civil Procedure 54(b). “Federal Rule of Civil Procedure 54(b) provides that, in a case involving multiple claims or parties, ‘any order or other decision, however found, that adjudicates fewer than all the claims or the rights and liabilities or fewer than all the parties . . . may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.'” Blundell v. Home Quality Care Home Health Care, Inc., No. 3:17-cv-1990-L-BN, 2018 WL 276154, at *4 (N.D. Tex. Jan. 3, 2018) (quoting FED. R. CIV. P. 54(b)). “Under Rule 54(b), ‘the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.'” Austin, 864 F.3d at 336 (quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990), abrogated on other grounds, Little v. Liquid Air Corp., 37 F.3d 1069, 1075 n.14 (5th Cir. 1994)). Courts generally will not consider an issue raised for the first time in a motion for reconsideration. See Wise v. Wilkie, 955 F.3d 430, 437 n.25 (5th Cir. 2020); LeClerc v. Webb, 419 F.3d 405, 412 n.13 (5th Cir.2005).

ANALYSIS

The FBI and Huddleston's motions raise three distinct issues, (1) the production of information relating to Seth Rich's personal laptop, (2) the production of information on Seth Rich's work laptop and associated documents, and (3) the production of the letter from a third party that accompanied the work laptop, two chain of custody forms, and the three-page report detailing actions by a third party outside entity to image the work laptop.

I. Clarification regarding Seth Rich's personal laptop

The issue of whether the FBI and DOJ must produce information from the images of Seth Rich's personal laptop revolves around three issues, (1) whether the FBI waived its arguments regarding the personal laptop, (2) whether FOIA Exemption 7(D) applies, and (3) whether FOIA Exemption 7(E) applies.^[3]The Court will require the FBI and DOJ to produce a Vaughn index addressing the information they possess related to Seth Rich's personal laptop.

A. Waiver of arguments regarding Seth Rich's personal laptop

Huddleston argues the FBI waived its arguments that FOIA Exemptions 7(D) and 7(E) apply to Seth Rich's personal laptop because the FBI failed to raise these issues in its motion for summary judgment (Dkt. #76 at pp. 6-8). In response, the FBI claims that it “clearly asserted and explained” the exemptions in its summary judgment briefing, the Vaughn index, and the declarations of Michael Seidel (supporting its summary judgment briefing) (Dkt. #84 at p. 3).^[4]

A motion for reconsideration may not be used to introduce new arguments. LeClerc v. Webb, 419 F.3d 405, 412 n.13 (5th Cir. 2005). In LeClerc v. Webb, the plaintiffs filed a motion for reconsideration that included new arguments. Id. The Fifth Circuit found that the district court had properly rejected the plaintiffs' new arguments, describing the new arguments as “improperly raised below.” Id.

The FBI raised arguments regarding both exemptions in its summary judgment briefing, its Vaughn Index, and the 4th Seidel Declaration. In its Vaughn Index, the FBI indicated that Exemptions 7(D) and 7(E) apply to the personal laptop (Dkt. #39, Ex. 1 at p. 188). In its summary judgment briefing, the FBI stated regarding Exemption 7(D):

The FBI asserted Exemption 7(D) to withhold confidential source symbol numbers, identifying information and information provided by sources under both express and implied assurances of confidentiality, and information provided by a foreign government agency under an implied assurance of confidentiality.

(Dkt. #39 at p. 46). In its summary judgment briefing, the FBI stated regarding Exemption 7(E):

Specifically, the FBI asserted Exemption 7(E) to protect FBI internal email addresses and non-public web addresses; sensitive investigative file numbers and sub-file names; database information; code names for investigations; types and dates of investigations; collection and analysis of information; specific law enforcement techniques utilized to conduct national security investigations; investigative focus of specific investigations; and identities of an FBI Unit, Squad and Division.

(Dkt. #39 at p. 47). The FBI further provided relatively more specific information for the general reasons why the FBI sought the exemptions (Dkt. #39, Ex. 1 ¶¶ 150-151, 171).

Although greater explanation would have been helpful,...