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Case 1:17-cv-03566-DLC Document 40 Filed 02/20/18 Page 1 of 4

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK
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GIZMODO MEDIA GROUP, LLC,
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Plaintiff,
: 17 Civ. 3566 (DLC)
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-against-
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DEPARTMENT OF JUSTICE,
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Defendant.
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RESPONSE OF DEFENDANT DEPARTMENT OF JUSTICE TO


PLAINTIFF’S MOTION TO SUPPLEMENT THE RECORD

GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York
86 Chambers Street, Third Floor
New York, New York 10007
Telephone: (212) 637-2769
Facsimile: (212) 637-2786

Attorney for Defendant


Department of Justice

ANDREW E. KRAUSE
Assistant United States Attorney
– Of Counsel –
Case 1:17-cv-03566-DLC Document 40 Filed 02/20/18 Page 2 of 4

Defendant United States Department of Justice (“DOJ” or “Defendant”), by its attorney,

Geoffrey S. Berman, United States Attorney for the Southern District of New York, respectfully

submits this response to Plaintiff’s Motion to Supplement the Record to include “materials [that]

were not available to the parties during the briefing of the summary judgment motions.” See

Dkt. Nos. 38-39.

On February 2, 2018, Congress released the document attached as Exhibit B to the

Declaration of David A. Schultz (“Schultz Declaration”), and referred to by Plaintiff as the

Nunes Memorandum. See Dkt. Nos. 39, 39-2. As set forth in the letter attached as Exhibit A to

the Schultz Declaration (“McGahn Letter”), the President declassified the memorandum, which

included references to the existence of FISA material related to Carter Page. See Dkt. Nos. 39-1,

39-2. While DOJ disputes that the Nunes Memorandum and the McGahn Letter have any

bearing on the meaning of the four-part post on President Trump’s Twitter account on March 4,

2017, see Dkt. No. 39 ¶ 6, DOJ does not dispute that these disclosures affect the scope of DOJ’s

current Glomar response to Plaintiff’s FOIA request.

Although Carter Page was not associated with the Trump campaign when the initial FISA

order was obtained, the FISA applications are potentially responsive to that portion of Plaintiff’s

FOIA request that seeks “all information provided to or received from the FISA Court pertaining

to requests made in 2016 for one or more warrants to conduct electronic surveillance on . . . any

of [Mr. Trump’s] associates . . . .” Accordingly, Defendant withdraws the Glomar response as to

the existence of the Page FISA applications and orders identified in the Nunes Memorandum.

Declassification by the President of the existence of the Page FISA applications and

orders identified in the Nunes Memorandum requires the government to carefully review those

materials to determine what information contained in them has been declassified and whether
Case 1:17-cv-03566-DLC Document 40 Filed 02/20/18 Page 3 of 4

they are responsive to Plaintiff’s request. Given recent events, and the possibility of additional

declassifications by the President, the government is unable at this time to propose a timetable to

conduct this review.

In cases pending in the United States District Court for the District of Columbia (James

Madison Project v. United States Department of Justice, No. 17-597-APM) and the United States

District Court for the Northern District of California (Poulsen v. United States Department of

Defense, et al., No. 17-cv-3531-WHO), where the respective plaintiffs are seeking similar

records via FOIA, the government requested that pending summary judgment motions be

terminated as moot, and further requested that the parties be given 30 days to confer with counsel

for the respective plaintiffs to propose a reasonable schedule for the government to make

additional disclosures of records, if any, and to re-brief summary judgment, including asserting

any remaining partial Glomar response. See James Madison Project Dkt. No. 32; Poulsen Dkt.

No. 42. Plaintiff in the James Madison Project matter did not object to the government’s request

to terminate the pending motions, see James Madison Project Dkt. No. 33; accordingly, the court

denied the pending motions as moot, and scheduled a status conference for March 19, 2018, see

James Madison Project Minute Order dated Feb. 16, 2018. In the Poulsen matter, plaintiff

objected to the government’s motion to withdraw its pending summary judgment motion, see

Poulsen Dkt. No. 43; on February 16, 2018, the court granted the government’s motion, directed

the parties to file a joint case management statement by March 20, 2018, and scheduled a case

management conference for March 27, 2018, at which point the court “will set a deadline for the

filing of a renewed motion for summary judgment if the parties have not agreed to a briefing

schedule by that date.” Poulsen Dkt. No. 44.

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Case 1:17-cv-03566-DLC Document 40 Filed 02/20/18 Page 4 of 4

Here, counsel for the government and counsel for Plaintiff have conferred about the

appropriate next steps for this litigation, and Plaintiff objects to the government’s proposal to

terminate the pending motions. Accordingly, and without prejudice the either party’s ability to

make any applications or proposals in the future, the parties jointly propose that the current

motions for summary judgment (Dkt. Nos. 20-22, 30-32, 33-34, 37) be held in abeyance for 30

days, with the parties to provide a written status report and scheduling proposal to the Court on

or before March 22, 2018, and/or to appear in person for a status conference with the Court to

discuss the schedule going forward.

In sum, while the government does not oppose Plaintiff’s motion to supplement the

record to include the Nunes Memorandum and the McGahn Letter, the government respectfully

submits that in light of recent developments and the government’s need to modify its current

response to Plaintiff’s FOIA request, the Court should grant the parties’ joint proposal to hold the

current motions in abeyance for 30 days and allow the parties to provide a further scheduling

proposal at that time, and/or direct the parties to appear in person for a status conference.

Dated: New York, New York


February 20, 2018
GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York
Attorney for Defendant Department of Justice

By: /s/ Andrew E. Krause


ANDREW E. KRAUSE
Assistant United States Attorney
86 Chambers Street, Third Floor
New York, New York 10007
Telephone: (212) 637-2769