UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JUDICIAL wATCH, INC., )
)
Plaintiff, )
)
v. ) civil case No. 13-1344 (RJL)

)
U.s. DEPARTMENT oF JUSTICE, )

) F I L E D

Defendant. l SEP 25 2017

_ clerk. u.s. m m
MEMoRANl) uM oPINIoN courts mr me i>lsiri§i E?'é'§ii‘§i§ia

 

(september gunn [Dkts. ##31, 331

In this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
Judicial Watch seeks disclosure by the Department of Justice (“Department”) of records
pertaining to settlement discussions between the Department and the House Committee on
Oversight and Govemment Reform (“Committee”) in separate litigation between those
entities. The case is here on remand from our Circuit. Before the Court are the
Department’s Second Motion for Summary Judgment [Dkt. #31] and Judicial Watch’s
Cross-Motion for Summary Judgment [Dkt. #33]. Upon consideration of the pleadings,
relevant law, and the entire record herein, the Court Will GRANT the Department’s motion
and DENY Judicial Watch’s cross-motion.

BACKGROUND

When this case Was last before me, I ruled that Judicial Watch Was not entitled to
the disclosure of eight settlement-related documents prepared in connection With another

case, Committee on Oversight and Government Reform v. Holder, 1:12-cv-01332 (D.D.C.)

(“Holder”).‘ In that case, filed August 2012, the House Committee on Oversight and
Government Reform sought to enforce a subpoena of certain documents related to the
controversial “Fast and Furious” operation conducted by the Bureau ofAlcohol, Tobacco,
Firearms and Explosives, a component of the Department. The parties attempted to settle.
As part of those efforts, they exchanged six letters and two draft settlement agreements
Ultimately, they were unable to reach a settlement, and in a final judgment entered on
February 8, 2016, my colleague, Judge Amy Berman Jackson, ordered the Attorney
General to release some, but not all, of the “Fast and Furious” documents sought by the
Committee. The Committee appealed. See Comm_ on Oversight and Gov’t Reform v.
Sessl'ons, No. 16-5078 (D.C. Cir.).

This case is not about the “Fast and Furious” documents that were the subject of
Holder and the Committee’s appeal. Rather, it involves an attempt by Judicial Watch, a
third party, to obtain the six letters and two draft settlement agreements created and
exchanged by the Department and the Committee during their settlement negotiations. To
evaluate Judicial Watch’s claims, it is necessary to begin by reviewing the context in which
these eight documents were created. Not long after Holder was filed, Judge Jackson
entered a minute order setting an initial status conference and informing the parties to be

prepared to discuss at that conference the matters listed in Local Civil Rule 16.3(0).2 At

 

' Attorney General Loretta Lynch was substituted for former Attorney General Eric Holder in 2015.
See Fed. R. Civ. P. 25(d). As the relevant events occurred prior to that substitution, and for consistency
with prior opinions issued in this matter, the Court will continue to refer to the case as “Holder.”

2 The rule instructs parties to assess, inlel” alia, `°|`W'lhether there is a realistic possibility ol"settling
the case,” LCvR 16.3(0)(4), “[w]hether the case could benefit from the Court’s alternative dispute resolution
(ADR) procedures . . . [, and] what related steps should be taken to facilitate such ADR,” LCvR l6.3(c)(5).

2

the initial conference, Judge Jackson inquired whether “the parties [were] engaged in any
effort at this time to work this matter out.” See Def.’s First l\/[ot. Summ. J. (“Def.’s First
l\/lot.”), Ex. C, Tr. of l l/27/l2 Status Conf. 8:15-17 [Dkt. #15-7]. She informed the parties
that Senior District Judge Barbara Rothstein3 was prepared to serve as a mediator. Id. at
9:6-1(). She then said:

The next question l was going to ask you was is there any reason that l

shouldn’t order you to go do [mediation], but if you’re [planning on] meeting

with each other already, then l don’t think l need to order you to go do that,

but l will invite you that if after you meet, you feel that that will be beneficial

or if you’d rather work with a magistrate judge or the court’s mediation

program, if you notify chambers, we will order that proinptly. . . . If you

want it, you just need to notify chambers and the order will issue.

Ia’. at 9:ll~l7, 10:5-6.

The parties met on December 7, 2012, approximately one week after the initial
status conference. Def.’s First l\/lot., Ex. A, Joint Status Report 4 [Dkt. #15-5]. Over the
next four weeks, they exchanged letters outlining their settlement positions. Id. at 5. No
agreement was rcached, and, on January lO, 2013, they again appeared before Judge
Jackson for a status conference, At this conference, Judge Jackson again asked whether it
was time to order the parties into mediation. See Def.’s First l\/[ot., Ex. D, Tr. of l/lO/l3
Status Conf. 812-9:2 [Dkt. #15-8]. Although the Department believed court-ordered
mediation was “premature” and the Committee expected “it would be largely a waste of

time,” id. at 9212, lO:l, Judge Jackson warned the parties she was “still going to consider

whether . . . to order it anyway,” id. at 11:14-15. She also stated that she would “like the

 

3 Judge Rotlistein, at that tinie, was a visiting Seiiior District Judge from the Western District of
Washington who had a chambers in our courthouse.

3

process [of settlement negotiationsj to speed up”: “[ljf it takes three weeks to respond to
their letter again, then we’re not going to get anywhere.” Id. at lO:l2, ll:l-3. Finally,
Judge Jackson stated that she did not know and did not want to know what the parties had
said in their negotiations to date. See id. at 8:16.

Following the second status conference, the parties exchanged four more letters
concerning their settlement positions. Def.’s Statement l\/lat. Facts jj l2 (“Def.’s Sl\/IF”)
[Dkt. #15-2j; Def.’s First Mot., Ex. B, Second Joint Status Report 1~2 [Dkt. #15-6j. They
also exchanged draft settlement agreeinents. Def.’s SMF jj l2; Second Joint Status Report
l-2. Following those exchanges, the Department informed Judge Jackson that it would
like to “accept the Court’s offer of mediation before Judge Rothstein.” Second Joint Status
Report 3. The Committee stated mediation “would be a waste of everyone’s time.” Ia’. at
2. On March 18, 2013, Judge Jackson ordered the parties into mediation with Senior Judge
Rothstein. Def.’s First l\/[ot., Ex. E, Order [Dkt. #15-9j; Pl.’s Statement l\/lat. Facts jj 4
(“Pl.’s SMF”) [Dkt. #33].

Two days later, Judicial Watch filed a FOIA request with the Department seeking
“[ajny and all records of communications, correspondence, and contacts between the
Department of .lustice and the House Committee on Oversight and Government Re'form
concerning or relating to a settlement in [Hola'erj.” Decl. J ames l\/I. Kovakas jj 2 (“Kovakas
Decl.”) [Dkt. #15-3j; Pl.’s SMF jj 2. The Department located eight documents responsive
to this request_the two letters exchanged after the first status conference, the four letters
exchanged after the second status conference, and the proposed settlement agreements

drafted by each party_but refused to release them on the ground that they were “subject

4

to court-imposed[j non-disclosure requirements.” Kovakas Decl. jj 8; Pl.’s SMF jj 7.
Judicial Watch filed this lawsuit, the parties cross-moved for summary judgment, and l
ruled in favor of the Department. See Judicial Watch, Inc. v. U.S. Dep ’t of Justice, 65 F.
Supp. 3d 50, 55 (D.D.C. 2014) (“Judz`cz`al Watch I”).

l\/[y decision was based on two grounds. First, l held that the eight responsive
documents were protected by Local Civil Rule 84.9, which “prohibits the mediator, all
counsel and parties and any other persons attending the mediation from disclosing any
written or oral communications made in connection with or during any mediation session.”
Judicial Watch I, 65 F. Supp. 3d at 55 (quoting LCvR 84.9(a)(l)). Second, I held that even
if the documents did not come within the protection of Local Civil Rule 84.9, they were
protected by court order because Judge Jackson had “instruct[edj the parties to keep the
substance of their settlement discussions private.” Id. at 56 (citing Tr. of 1/10/2013 Status
Conf. 8116) (“l don’t know what you said [in settlement communicationsj. l don’t want to
know.”). Judicial Watch appealed.

Our Circuit found that my interpretation of Local Civil Rule 84.9 “presents difficult
questions.” Judicial Watch, Inc. v. U.S. Dep’t Of.]ustice, 813 F.3d 38(), 384 (D.C. Cir.
2016) (“Jua’icl`al Watch II”). “On the one hand, a district court’s interpretation of its own
rules is, as the Department argues, entitled to deference.” Id. (citing Texas v. Um'tea’ States,
798 F.3d 1108, lll5 n.2 (D.C. Cir. 2015) (“Every circuit . . . defers to their district courts’
interpretation . . . of local rules. The federal court system could not fairly function
otherwise.” (citations omitted)). “On the other hand, Local Rule 84(b) explicitly provides

that ‘[tjhese Rules apply only to mediation proceedings that are formally conducted

5

through the United States District Court’s Mediation Program.”’ Id. (quoting LCvR 84(b)).
“Further, it is not established whether Local Rule 84.9, if it applies, would resolve the
FOIA question because local rules do not clearly fit within a recognized FOIA
exemption.” Id.

Rather than confront these “difficult questions,” our Circuit determined that it
should begin by reviewing Judge Jackson’s order. lt recited the four-factor test for
determining whether an agency has improperly withheld records placed under seal by a
court, See Morgan v. U.S. Dep’t of.]usl'z`ce, 923 F.2d 195, 197 (D.C. Cir. 1991), then
concluded that under this test “the intended effect of Judge Jackson’s order is ambiguous,”
Judicial Watch II, 813 F.3d at 383. Because “j_ajn ambiguous court order does not protect
a record from disclosure pursuant to the FOIA,” id. at 383-84, the court determined that it
should “vacate the judgment of the district court and remand this matter to Judge Leon in
order to give the Department an opportunity to seek clarification from Judge Jackson
regarding the intended effect and scope of her order,” id. at 384. The court observed that,
depending on the results of the clarification, resolution of the questions presented by my
interpretation of Local Civil Rule 84.9 “may be unnecessary.” Id. at 385.

On motion from the Department following remand, Judge Jackson clarified that her
“statement - which bears none of the earmarks of an order - does not address the
confidentiality of any ongoing or future settlement negotiations or mediation proceedings.”
Order on l\/lot. Clarification 3 [Dkt. #27-1]. “However,” she explained, “the Court
ultimately referred the matter for mediation to United States District Judge Barbara J.

Rothstein, who did issue [threej orders that appear on the docket in this case.” Id. Those

6

orders directed the parties to submit directly to Judge Rothstein’s chambers memoranda
summarizing, inter alia, “the settlement history to date, including a summary of any issues
that prevented settlement[,j and the parties’ current settlement positions.” Id. at 4. The
first order specified that the memoranda were due by noon on March 22, 2013, and “should
not be filed through ECF.” Id. The second and third orders requesting similar memoranda
specified that they were “for the Court’s eyes only.” [d.

Soon after receiving clarification from Judge Jackson, the parties filed the cross-
motions now pending before this Court. The parties agree that, following clarification,
Judge Jackson’s order can no longer serve as a basis for the Department’s withholding of
the documents in question. Their cross-motions thus present, once again, the same
“difficult questions” our Circuit left unresolved Specifically, the Department “moves for
summary judgment a second time on the central basis for the Court’s prior order, which
was not addressed by the D.C. Circuit court: that Local Rule 84.9 prohibits the Department
from releasing the requested settlement cominunications.” Def.’s Mem. Supp. Second
Mot. Summ. J. 8 (“Def.’s Mem.”) [Dkt. #31-1]. Judicial Watch counters that “Local Rule
84.9 does not apply to the eight records being withheld because they were all created prior
to the Department entering into the Mediation Program.” Pl.’s Mem. Opp’n to Def.’s
Second Mot. Summ. J. & Supp. Cross-l\/Iot. Summ. J. 3 (“Pl.’s Mem.”) [Dkts. ##32, 33].

STANDARD OF REVIEW

FOIA requires federal agencies to make certain records publicly available. “The
statute gives federal courts jurisdiction to compel production of records if an agency has
‘(l) improperly (2) withheld (3) agency records.”’ Judicial Watch 11, 813 F.3d at 383

7

(quoting GTE Sylvam'a, Inc. v. Consamers Union of the U.S., Inc., 445 U.S. 375, 384
(1980)); see 5 U.S.C. § 552(a)(4)(B). An agency may withhold a record ifit “fall[sj within
one of nine exemptions.” Ml'lner v. Dep’t ofthe Navy, 562 U.S. 562, 565 (2()11); see 5
U.S.C. § 552(b)(1)-(9). “In addition, withholding a record the disclosure of which a court
has enjoined is not ‘improper.”’ Judicial Watch 11, 813 F.3d at 383; accord Fed. Deposit
Ins. Corp. v. Ernsl & Emst, 677 F.2d 230, 232 (2d Cir. 1982) (“It is beyond question that
a court may issue orders prohibiting disclosure ofdocuinents or information.” (citing Nz'xon
v. Warner Commc’ns, lnc., 435 U.S. 589, 598 (1978)). “‘There simply [isj no discretion
for the agency to exercise’ in such cases.” Judicial Watch II, 813 F.3d at 383 (quoting
GTE Sylvam`a, 445 U.S. at 386).

“[Tjhe vast majority of FOIA cases can be resolved on summary judgment.”
Brayton v. U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is
appropriate “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.” Fed. R. Civ. P. 56(a). “A fact
is material if it ‘might affect the outcome of the suit under the governing law,’ and a dispute
about a material fact is genuine ‘if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.”’ Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008)
(quoting Anderson v. Liberly Lobby, Inc., 477 U.S. 242, 248 (1986)).

ANALYSlS

1 must resolve two issues on reinand. First, 1 must determine whether the documents
sought by Judicial Watch are “written . . . communications made in connection with or

during any mediation session” and therefore protected by our confidentiality rules. LCvR

8

84.9(a)(1); see Judicial Watch II, 813 F.3d at 384. 1f they are, 1 must determine whether

Local Civil Rule 84.9 “resolve[sj the FOIA question,” bearing in mind that “local rules do

not clearly fit within a recognized FOIA exemption.” Judicial Watch II, 813 F.3d at 384.
A.

When this case was last before me, 1 answered the first question in the affirinative.
Although 1 recognized that “the responsive documents were created before the parties were
formally ordered into mediation by Judge Jackson,” 1 nevertheless determined that they
were “made in connection with” the mediation sessions before Senior Judge Rothstein.
Judicial Watch I, 65 F. Supp. 3d at 55 (quoting LCvR 84.9(a)(1)). 1n reaching that
conclusion, 1 relied primarily on the specific factual context of the negotiations in Holder.
1 found it telling both that the eight settlement-related documents sought by Judicial Watch
were created “amidst numerous inquiries from Judge Jackson regarding the necessity of
referring the case to formal mediation” and that these documents ultimately “became the
starting point from which the mediation sessions before Judge Rothstein proceeded.” Id.
1 also looked to the judicial policy underlying our confidentiality rules. As 1 explained
then, “the core purpose ofLocal Rule 84.9 [isj to promote resolution of civil disputes short
of litigation.” Id. at 56. 1 reasoned that this purpose would be hindered if the Rule were
interpreted to allow the “disclosure of sensitive . . . settlement communications between
parties” who were preparing for potential mediation. Id. Finally, upon reviewing the
relevant case law, 1 concluded that a “narrow interpretation of Local Rule 84.9 [would bej
inconsistent with the broad protections this District Court provides for confidential

settlement discussions between parties.” Id. at 55 (collecting cases); see also Jones v.

9

Ashcroft, 321 F. Supp. 2d 1, 12 (D.D.C. 2004) (“[Ajs a matter ofpublic policy, as well as
a matter of practice . . . the district judges and magistrate judges of this Court . . . insist that
all settlement discussions remain confidential[.j” (emphasis added) (quoting Chz'lders v.
Slater, 1:97-cv-853-Rl\/1U/Jl\/1F, 1998 WL 429849, at *6 (D.D.C. May 15, 1998))).

1 reach the same conclusion again today. Judicial Watch concedes that Holder
entered the District Court Mediation Program when Judge Jackson referred the case to
Senior Judge Rothstein for settlement discussions on March 18, 2013. Pl.’s Sl\/IF jj 4; Pl.’s
Mem. 2. This stipulation is “binding and conclusive” of that fact. Chrisl'ian Legal Soc’y
Chapter of the Univ. of Cal., Hastz`ngs Coll. of the Law v. Marz‘inez, 561 U.S. 661, 677
(201()). The only remaining question, then, is whether the six letters and two draft
settlement agreements prepared by the parties in advance of entering mediation were
“made in connection with” any mediation session. LCvR 84.9(a)(1). The record shows
that the parties in Holder drafted and exchanged these eight documents upon the
encouragement of the court to engage in settlement discussions and after having been
informed by the court that mediation loomed on the horizon. As if to underscore that point,
the court proactively arranged for Senior Judge Rothstein to serve as mediator and
informed the parties that she was waiting in the wings if their settlement efforts should fail.
Not surprisingly, the parties believed that communications made under these circumstances
were and would remain “confidential.” Second Joint Status Report 3 (refusing to disclose
“the parties’ confidential settlement offers”). The reasonable nature of this belief was
confirmed when mediation was in fact ordered and Senior Judge Rothstein instructed the

parties, consistent with Local Civil Rule 84.6, to submit directly to chambers and “for the

10

Court’s eyes only” mediation statements containing “the settlement history to date.” Order
on Mot. Clarification 4. On these facts, 1 conclude that the eight documents sought by
Judicial Watch were “made in connection with” the mediation sessions before Senior Judge
Rothstein and are therefore protected by Local Civil Rule 84.9.

1n reaching this conclusion, 1 take careful note of the apparent tension our Circuit
observed (but did not resolve) between this outcome and Local Civil Rule 84(b). Local
Civil Rule 84(b) provides in part that our District’s mediation rules “apply only to
mediation proceedings that are formally conducted through the United States District
Court’s Mediation Program.” LCvR 84(b). “The United States District Court Mediation
Program is administered by the Office of the Circuit Executive for the United States Courts
for the District of Coluinbia Circuit.” LCvR 84.1(a). A case enters the Mediation Program
when a district “judge issues an order referring the case to the Office of the Circuit
Executive.” LCvR, App. A, Dispute Resolution Prograins at 126; See also LCvR 84.4.
Judicial Watch argued on appeal, as it does again here, that the “plain language” of Local
Civil Rule 84(b) precludes application of Local Civil Rule 84.9 to any written
communications made prior to the issuance of an order referring a matter to the Mediation
Program. Pl.’s Mem. 3-4. Thus, according to Judicial Watch, the eight settlement-related
documents at issue here are unprotected because they “were created before the Department
entered into the United States District Court Mediation Program.” Id. at 6.

There are several problems, however, with Judicial Watch’s analysis. To begin
with, J udicial Watch reads the first sentence of Local Civil Rule 84(b) in isolation from the

rest of that provision. The first sentence, as noted above, states that “[tjhese Rules apply

11

only to mediation proceedings that are formally conducted through the United States
District Court’s Mediation Program.” LCvR 84(b). The next sentence, ignored by the
parties, provides that “[njothing in these Rules shall preclude litigants from independently
retaining a private mediator or other ADR professional to facilitate negotiations in their
case.” [d. This second sentence is important because it highlights that the distinction
drawn by Local Civil Rule 84(b) is not, as Judicial Watch wishes, a temporal distinction
between the time before a case is referred to mediation and the time after a case is referred
to mediation, but rather a distinction between cases in our formal Mediation Program and
cases in private mediation prograins. 1n other words, Local Civil Rule 84(b) clarifies that
our mediation rules do not apply where parties elect to retain a private mediator and to
abide by private mediation rules (as in, for example, certain forms of commercial
arbitration); but it says nothing to suggest that the timing of a referral order may leave some
communications unprotected Although Local Civil Rule 84(b) has not been construed in
any opinion of which the Court is aware, interpreting the rule as a distinction between
private and court-supervised mediation is consistent with the general practice in this
District of applying our confidentiality rules to any mediation conducted under the auspices
of the court_even those not referred to the Circuit Executive as set forth in Local Civil

Rule 84.4.4

 

4 ln such cases, a referral order assigns the case directly to a magistrate judge to facilitate settlement
discussions, without reference to the District Court l\/lediation Program or to the Circuit Executive. See,
e.g., Order of Rcf`erral, Ascom Hasler Mai'i‘ing Sys., ilnc. v. U.S. I’os£al Serv., l:OO-cv»l-¢lOl-PLF (D.D.C.
11in l l, 2006), ECI-` Nos. 102_. 103; Scheduling and Procedures Oi'der_. W."li":`am,i‘ v. Johanm', l:GS-cv-2245~
CK]<`. (D.D.C. Jul_v 20, 2005], ECF No, 35; Order Re ferriiig Aetion, Coo;)ei" v. Fi`i'.i'.' Gov’! Mortg, & fnv‘rs
Corp., 1:00-cv-536-RMU (D.D.C. Oct. 26, 2000), ECF No. 25. Then, if questions ofconf`ldentiality arise
(as they often do), the court applies Local Civil Rule 84.9. See Ascom Hasler Maill'ng Sys., Inc. v. U.S.

12

Even more problematic for Judicial Watch is Local Civil Rule 84.9’s express
contemplation of communications made outside of mediation As noted above, the Rule
prohibits disclosure of“written . . . communications made in connection with or during any
mediation session.” LCvR 84.9(a)(1). The words “or during” indicate that the phrase “in
connection with” encompasses communications made outside of (not “during”) a
mediation session. lt is plain that in many instances some such communications will be
prepared before any particular mediation session, and indeed, our published guidance
recognizes this possibility and assures litigants that “[djocuments generated for the
mediation are . . ._confidential.” LCvR, App. A, Dispute Resolution Programs at 129. 1t
is also true, due to the nature and speed of district court litigation, that in some cases
settlement-related documents may need to be prepared before the referral order is issued
1ndeed, Holder is a perfect example.

1n that case, Judge Jackson urged the parties to “speed up” their exchange of
negotiation letters. Tr. of 1/1()/2013 Status Conf. 101 12. Then, when the referral order was
entered, Judge Rothstein directed the parties to submit, in less than four days, memoranda

summarizing “the parties’ current settlement positions” and “any issues that prevented

 

l’ostal Sei'v_, 267 F.R.D. 9, 12 (D.D.C. 20 | 0) (ana|yzing whether expert report used information obtained
during settlement discussions in violation of LCvl{ 84.9(21){|), (3)); Wi'llianvs v. ./ola'mii.s'. 529 F. Supp. 2d
22, 23 & 23 ii.| (D.D.C. 2008} (sanctioiiing1 counsel for violating confidentiality order entered pursuant to
LCvR 84.9(a)(1), (b)); Cooper v. First Gov ’tMortg. & Inv 'rs Corp., 216 F.R.D. 126, 127 n.l (D.D.C. 2002)
(exp|aining court “struck the opposition from the record of this case because it contains details of
confidential settlement discussions”). But see Fr¢mklin-Mason v. Dalton, 1:96-cv-2505-RWRtJFl\/l, 2006
WL 825418, at *3 n.5 (D.D.C. l\/lar. 21, 2006) (“Local Civil Rule 84.9 . . . speaks only to those proceedings
which take place under the auspices of the Couit’s Mediation Program and not to settlement discussions
that take place before ajudge.”), report and recommendation rejected sub norn. Franklin-Mason v. Penn,
616 F. Supp. 2d 97 (D.D.C. 2009). Whatever other problems this practice may create, they are not
implicated here in light of the parties’ stipulation that this case entered our formal Mediation Program.
Def.’s Sl\/IF jj 12; Pl.’s Sl\/IF jj 4; Pl.’s Mem. 2.

13

settlement.” Order on Mot. Clarification 4. Obviously, meeting that deadline would not
have been possible if the parties were not already engaged in an exchange of letters as
encouraged by the court. Given such realities, it is not surprising that Judicial Watch is
unable to identify a single case holding Local Civil Rule 84.9 inapplicable to a settlement-
related document due to the timing of its creation.5 Moreover, in this case, it is clear that
the eight documents at issue were created following Judge Jackson’s encouragement to
engage in settlement discussions and after her admonition that she was prepared to order
formal mediation. 1t is thus not necessary to define a precise temporal window for the
phrase “made in connection with.” On this record the documents plainly fall within it.
Finally, 1 am unpersuaded by Judicial Watch’s redactio ad absurdum insisting that
if these eight documents are protected by Local Civil Rule 84.9, so too would any
“newspaper article” submitted to a mediator. Pl.’s l\/Iem. 5. The argument misunderstands
the significance of the Holder parties’ submission of the draft settlement agreements and
position letters to Senior Judge Rothstein. That submission did not somehow insulate
otherwise public documents from disclosure; it simply helped to show, on the facts
presented in this case, that the documents were confidential and generated in connection
with the mediation A newspaper article would not be protected by Local Civil Rule 84.9
because it would be “made” in connection with a publishing enterprise and not in

connection with any mediation session. Thus, the straw man erected by Judicial Watch is

easily toppled.

 

5 Although Judicial Watch purpoits to cite relevant case law in support of its position, Pl.’s l\/Iem. 4,
in each of the cited cases, the court held the relevant communications protected by Local Civil Rule 84.9.

14

B.

Because 1 hold that the eight settlement-related documents sought by Judicial Watch
are protected by Local Civil Rule 84.9, 1 must also determine whether the Rule “resolve[sj
the FOIA question.” Judicial Watch II, 813 F.3d at 384. FOIA, as previously explained,
“gives federal courts jurisdiction to compel production of records if an agency has ‘(1)
improperly (2) withheld (3) agency records.”’ Judicial Watch II, 813 F.3d at 383 (quoting
GTE Sylvanz'a, 445 U.S. at 384); See 5 U.S.C. § 552(a)(4)(B). An agency may withhold a
record ifit “fall[sj within one of nine exemptions.” Milner, 562 U.S. at 565; see 5 U.S.C.
§ 552(b)(1)-(9). “ln addition, withholding a record the disclosure of which a court has
enjoined is not ‘improper’: ‘There simply [isj no discretion for the agency to exercise’ in
such cases.” Judicial Watch ]1, 813 F.3d at 383 (quoting GTE Sylvania, 445 U.S. at 386).

The Department concedes that the eight records at issue in this case do not fit within
any of FOIA’s nine statutory exemptions.(’ That leaves as the relevant inquiry the
appropriateness of withholding the records pursuant to Local Civil Rule 84.9. The parties

agree that “the proper test for determining whether an agency improperly withholds records

 

6 This concession is surprising FOIA’s disclosure requirement “does not apply to matters . . .
specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3). Although rules promulgated by
courts are not “statutes,” see Foi.iim"ing Clnirc:h ofScl'entologW of l»Va.i’)"t,, D.C., Inc. v. Bell, 603 F.2d 945,
951-52 (D.C. Cir. 1979) (|1o|ding I""ederal Rule of Civil Procedurc 2()(c) not a statute), Local Civil Rule
84.9 implements a statutory command that "each district court shall, by local rule . . . provide for the
confidentiality of the alternative dispute resolution processes and to prohibit disclosure ot` confidential
dispute resolution communications,” 28 U.S.C. § 652(d}. Tliat command appears to place I`iocal Civil Rule
84.9 on a plane distinct from other rules promulgated pursuant to the Rules Enabling Act. lndeed, this
Court has previously held that a confidential letter sent to a mediator was within the ambit ot`§ 652(d) and
therefore exempt from FOlA. See Ye:'der v. U.S. Dep ’t ofDef.`, 577 F. Supp. 2d 342, 346-47 (D.D.C. 2008).
And it is likewise not unusual for administrative agencies to promulgate rules designating certain types of
materials as presumptiveiy within the protection ofa statutory exemption from FOIA. See, e.g., 47 C.F.R.
§ 0.457(0). Given that our Circuit expressed interest in the merits ofthis approach on appeal, see Ora| Arg.
Recording Sept. 25, 2015, | :04~2:30, 4115~6:]0, it is curious that the parties failed to analyze it on remand

15

[subject to a local rulej is whether the [rulej, like an injunction, prohibits the agency from
disclosing the records.” Morgan, 923 F.2d at 197 (citing GTE Sylvani'a, 445 U.S. at 386-
87); see also Agility Pab. Warehoasing Co. K.S.C. v. Nat’l Sec. Agency, 113 F. Supp. 3d
313, 335 (D.D.C. 2015) (collecting cases applying the “core holding” of GTE Sylvania to
find agency records properly withheld pursuant to injunctions, sealing orders, consent
orders, protective orders, and local rules). ln the context of applying this test to a sealing
order, our Circuit has said that an agency may carry its burden of proof to show that
withholding is proper “by referring 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.” Morgan, 923 F.2d at 198
(footnote omitted).

Applying the Morgan factors in this case shows that the Department properly
withheld the eight settlement-related documents requested by Judicial Watch. Local Civil
Rule 84.9 unambiguously “prohibits . . . all counsel and parties . . . from disclosing any
written or oral communications made in connection with . . . any mediation session.” LCvR
84.9(a)(1). The Rule further provides, subject to six exceptions not relevant here, that
“[ijnformation acquired through mediation shall not be used for any purpose, including
impeachment, in any pending or future proceeding in this or any other court or forum.”
LCvR 84.9(a)(3). 1 have already determined, sapra, that the eight documents at issue here

are within the ambit of the Rule. These broad prohibitions are therefore binding on the

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Department. “Because a district court’s local rules ‘have the force of law,”’ Texas, 798
F.3d at 1114 (quoting Holll`ngsworth v. Perry, 558 U.S. 183, 191 (2010)), “the
[Departmentj_like all lawyers and litigants_is ‘duty bound to comply with them,”’ id.
(quoting In re Jarvt`s, 53 F.3d 416, 422 (1st Cir. 1995)).

Extrinsic evidence confirms the ironclad nature of the Department’s obligation.
This District assures litigants that participation in our Mediation Program will allow them
“to avoid a public airing of their dispute” because “[ajll mediation proceedings are
confidential” and all “[djocuments generated for the mediation are also confidential.”
LCvR, App. A, Dispute Resolution Programs at 127, 129. This incentive is not merely an
offer to prevent awkward glances and sheepish siniles ! Rather, it reflects Congress’s
understanding that “providing for the confidentiality of alternative dispute resolution” and
“prohibit[ingj disclosure of confidential dispute resolution communications,” 28 U.S.C.
§ 652(d), is essential to “present[ingj quality alternatives to expensive federal litigation”
and “address[ingj the problem of the high caseloads burdening the federal courts,” H.R.
Rep. No. 105-487, at 5 (1998). Confidentiality contributes to these goals because it gives
parties freedom to engage in a frank exchange of information without fear that their
disclosures will be used against them in present or future litigation. “[Tjhe traditional
practices of lawyers during settlement discussions” provide other extrinsic indication that
“it [is] reasonable for ja partyj to believe that information it made available to its opponent
. . . solely for the purpose of mediation [willj be kept confidential and be used only for the
purposes of that mediation.” Asco)n Hasler Mat`ll`ng Sys., Inc. v. U.S. Postal Serv., 267

F.R.D. 9, 12 (D.D.C. 2010). Since settlement is generally the preferred manner by which

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to dispose of politically charged struggles between the legislative and executive branches,
ensuring confidentiality in that context is even more important to facilitating a mutually
agreeable outcome. No wonder the Holder parties believed their communications were
confidential when they were encouraged by the court to settle !

Similar cases also support the conclusion that withholding documents pursuant to
Local Civil Rule 84.9 is proper. Courts in this District have held counsel in contempt for
disclosing in a public forum information obtained through inediation. See, e.g., Williams
v. .]obannes, 529 F. Supp. 2d 22, 23 & 23 n.l (D.D.C. 2008) (holding counsel in civil
contempt for filing “on the public docket” submission containing “statements made during
the course ofa mediation session”). Yet, as our Circuit and the Supreme Court have made
clear, “the FOIA does not ‘require an agency to commit contempt of court in order to
release documents.”’ Morgan, 923 F.2d at 197 (quoting GTE Sylvanz'a, 445 U.S. at 387).
1t cannot be, then, that FOIA requires the Department to disclose documents made in
connection with mediation at risk of being found in civil contempt.

Finally, this District’s general mediation rules and procedures also reinforce the
conclusion that withholding is proper. For example, Local Civil Rule 84.9 authorizes
mediators to obtain signed confidentiality agreements from mediation participants but
expressly provides that our “confidentiality requirements . . . apply regardless of whether
a confidentiality agreement is signed.” LCvR 84.9(b). This procedure recognizes the
practical value in some cases of using confidentiality agreements to impress our
requirements on parties, while at the same time taking care to avoid creating a negative

inference in favor of disclosure in cases where the mediator does not believe such

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agreements provide added value. Similarly, Local Civil Rule 84.6 requires mediation
participants to submit “confidential mediation statement[sj” outlining their settlement
positions “[njo later than seven days prior to the first mediation session.” LCvR 84.6(a).
This Rule, in other words, requires litigants to create documents in advance of mediation
which, by definition, are “confidential” and within the protection of Local Civil Rule 84.9,
but, in cases involving federal agencies, are outside the protection of any FOIA exemption
because the documents have left the executive branch. See 5 U.S.C. § 552(b)(5)
(exempting from disclosure only “inter-agency or intra-agency memorandums or letters”).
1t is inconceivable that FOIA requires disclosure of such documents created under court
order; yet the only basis for protecting them is Local Civil Rule 84.9. 1n sum, then, after
consideration of all four Morgan factors, 1 am persuaded that “FOIA [simplyj does not
apply to a court’s [rulej directing an agency not to reveal the terms of an agreement crucial
to the settlement of an action.” Ernst & Ernst, 677 F.2d at 232.

Judicial Watch attempts to fight the outcome of the Morgan analysis by asserting
that Local Civil Rule 84.9 is concerned only with disclosure occurring amidst “a particular
suit between particular litigants” in order “to prevent potential prejudice that may occur if
the overseeing judge has access to the information” shared in mediation. Pl.’s Mem. 7-8.
To be sure, protecting the impartiality of the presiding judge is one reason for keeping
mediation confidential See Davz's v. Nat’l Coanct`l ofNegro Women, Inc., 821 F. Supp. 2d
262, 268 (D.D.C. 2011) (recognizing as attorney “misconduct” the “disclosing [ofj
confidential settlement discussions in public filings available to the merits judge”). But it

is not the only reason. Keeping mediation confidential is an incentive for parties to

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mediate. See LCvR, App. A, Dispute Resolution Programs at 127 (explaining the “[n]eed
for privacy” is a reason to mediate). lt also broadens the scope of potential solutions. If
the prohibition on disclosure were immediately lifted when mediation or litigation
concluded, parties that frequently find themselves in court (such as the Govemment) would
be limited in their ability to explore creative solutions in individual cases, and one of the
key benefits of mediation would be lost. See id. at 125 (explaining mediation is “[m]ore
creative” than litigation and “[b]etter able to address the underlying interests of all
parties”). In any event, the text of the Rule forecloses Judicial Watch’s argument. Local
Civil Rule 84.9 expressly prohibits “use[j for any purpose . . . in any pending or future
proceeding in this or any other court or forum.” LCvR 84.9(a)(3).

CONCLUSION

For the foregoing reasons, the Court will GRANT the Department’s Second Motion
for Summary Judgment and DENY Judicial Watch’s Cross-Motion for Summary

Judgment. An Order consistent with this decision accompanies this Memorandum

Opinion.

dated

RiciiARéJJLt-;oi~t
United States District Judge

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