United States District Court, District of Columbia
MITCHELL J. STEIN, Plaintiff,
U.S. SECURITIES AND EXCHANGE COMMISSION, Defendant.
D. BATES UNITED STATES DISTRICT JUDGE
Court already has entered summary judgment for the Securities
and Exchange Commission (“SEC”) on the bulk of
the claims at issue in this Freedom of Information Act
(“FOIA”) case. Currently before the Court are
 the SEC's renewed motion for summary judgment and
 Stein's renewed cross-motion for summary judgment on
a handful of remaining issues. The parties mainly dispute
whether the SEC may continue to withhold requested records
under FOIA Exemption 7(A), which exempts from disclosure
documents that could reasonably be expected to interfere with
civil or criminal law enforcement investigations. 5 U.S.C.
§ 552(b)(7)(A). Stein also challenges the SEC's search
of a discrete set of materials as inadequate under FOIA. For
the reasons that follow, the SEC's renewed motion will be
granted, and Stein's renewed motion will be denied.
Facts and Procedural History
facts and procedural history relevant to this case are more
fully set forth in the Court's decision denying
Stein's earlier motion for summary judgment and granting
in part and denying in part the SEC's earlier motion for
summary judgment. See Stein, 266 F.Supp.3d at 354.
Briefly, in 2011 the United States indicted Stein for
securities fraud, wire fraud, and other crimes related to his
work at Heart Tronics, Inc., a medical device company.
See Indictment, United States v. Stein,
Crim. No. 9:11-80205 (S.D. Fla. Dec. 13, 2011), ECF No. 3. A
week later, the SEC filed a civil enforcement action alleging
securities violations stemming from much of the same conduct.
See Complaint, SEC v. Heart Tronics, Inc.,
Civ. No. 8:11-1962 (C.D. Cal. Dec. 20, 2011), ECF No. 1.
Following Stein's conviction in the criminal case, the
district court in the civil case entered summary judgment
against Stein on most claims, finding that Stein's
criminal conviction collaterally estopped him from
challenging his civil liability. See Jury Verdict,
Stein, Crim. No. 9:11-80205, ECF No. 212; Minutes in
Chambers at 2, 7, Heart Tronics, Civ. No. 8:11-1962,
ECF No. 255; Judgment, Heart Tronics, Civ. No.
8:11-1962, ECF No. 277; Decl. of Kenneth Donnelly
¶¶ 15-16, Ex. 1 to SEC's Mot. for Summ. J.
(“Donnelly Decl.”) [ECF No. 10-2]. Stein appealed
his criminal conviction to the Eleventh Circuit, see
United States v. Stein, 846 F.3d 1135 (11th Cir. 2017),
and appealed the civil judgment to the Ninth Circuit, see
SEC v. Stein, 906 F.3d 823 (9th Cir. 2018).
2017, the Eleventh Circuit affirmed Stein's conviction
but remanded to the district court for resentencing. See
Stein, 846 F.3d at 1156. After being resentenced, Stein
once again appealed his conviction and sentence to the
Eleventh Circuit, where his case remains pending. See
United States v. Stein, No. 18-13762 (11th Cir. docketed
Sept. 5, 2018). Meanwhile, the Ninth Circuit affirmed the
district court's entry of judgment against Stein in the
civil case. See Stein, 906 F.3d at 834.
Nevertheless, that case also remains ongoing: Stein has
petitioned the Ninth Circuit for panel rehearing and
rehearing en banc and moved to stay consideration of his
petition pending the conclusion of his Eleventh Circuit
appeal of his conviction and sentence. See Pet. for
Panel Reh'g and Reh'g En Banc, SEC v. Stein,
No. 15-55506 (9th Cir. filed Nov. 26, 2018), ECF No. 72; Mot.
for Misc. Relief, Stein, No. 15-55506 (9th Cir.
filed Nov. 26, 2018), ECF No. 77. Both Stein's petition
for rehearing and the motion to stay remain undecided.
2015, while the criminal and civil proceedings remained
ongoing, Stein submitted a FOIA request to the SEC seeking
two categories of documents: all documents and information
described in a privilege log prepared by the SEC in the
Heart Tronics action, and all documents and
information relating to the investigation of individuals
whose identities Stein was accused of fabricating to further
his alleged crimes. See Compl., Ex. B. [ECF No. 1].
The SEC withheld most of the first requested category under
FOIA Exemption 7(A), which permits agencies to withhold
documents that may interfere with ongoing or prospective
proceedings stemming from civil or criminal law enforcement
actions. See Compl., Ex. D at 1 (citing 5 U.S.C.
§ 552(b)(7)(A)). With respect to Stein's second
category of requests-documents related to the names of
individuals he allegedly invented-the SEC stated that any
responsive documents were either already made available to
Stein or were listed on the Heart Tronics privilege
log. Stein, 266 F.Supp.3d at 334.
the SEC denied his administrative appeal, Stein filed suit
here and the parties each moved for summary judgment.
Id. This Court concluded that the SEC had properly
withheld most of the privilege log records under Exemption
7(A) because their release may interfere with the Heart
Tronics litigation. See id. at 343-47.
“Because the work product, internal communications, and
deliberative documents that Stein seeks essentially provide a
road map for the SEC's case in the [ongoing] Heart
Tronics litigation, ” the Court explained,
“they are likely to give Stein insight into the way the
investigation and the SEC's legal strategies developed
that he . . . would not otherwise have, which could make
re-litigating the Stein . . . case-or possibly even
pursuing [it] on appeal-difficult.” Id. at
the second category of documents, the Court determined that
the SEC met its FOIA obligations in all respects but one: the
search of two one-terabyte hard drives and numerous boxes of
hard-copy documents-dubbed the “RenewData
materials”-for any responsive records. See id.
on the foregoing, the Court denied Stein's motion for
summary judgment and granted in part and denied in part the
SEC's motion for summary judgment. The Court then ordered
the SEC to search the RenewData materials for documents
responsive to Stein's second category of requests and,
after producing relevant documents or justifying any
withholding decisions, offered the parties the chance to file
renewed motions for summary judgment. See Aug. 8,
2017, Order [ECF No. 26]. After the parties filed their renewed
motions and before the Court rendered its decision, however,
the Ninth Circuit affirmed the district court's entry of
judgment in the Heart Tronics case, raising whether
Exemption 7(A) continued to apply to the privilege log
documents. The Court accordingly ordered the SEC and Stein to
submit supplemental briefing to address, among other things,
whether Exemption 7(A) continued to apply to the privilege
log documents. Briefing is now complete and the parties'
renewed motions for summary judgment are ripe for resolution.
courts determine de novo whether an agency properly withheld
requested documents under a statutory exemption to FOIA, and
the agency “bears the burden of proving the
applicability of claimed exemptions.” Am. Civ.
Liberties Union v. U.S. Dep't of Def., 628 F.3d 612,
619 (D.C. Cir. 2011); 5 U.S.C. § 552(a)(4)(B).
“Ultimately, an agency's justification for invoking
a FOIA exemption is sufficient if it appears
‘logical' or ‘plausible.'”
Id. (quoting Larson v. Dep't of State,
565 F.3d 857, 862 (D.C. Cir. 2009)).
cases typically and appropriately are decided on motions for
summary judgment.” Georgacarakos v. FBI, 908
F.Supp.2d 176, 180 (D.D.C. 2012) (citation omitted). Summary
judgment is appropriate where “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). The court may grant summary judgment in
favor of the agency only after the agency has established
“that it has ...