U.S. 4th Circuit Court of Appeals: Rein v. United States Patent &

Daily Record, The (Baltimore), Feb 17, 2009

Civil Procedure

Exemptions from Freedom of Information Act disclosure

BOTTOM LINE: District court did not err in concluding that government agencies properly withheld or redacted materials, as protected under Freedom of Information Act exemptions.

CASE: Rein v. United States Patent & Trademark Office, US4th No. 07-1738 (decided Jan. 28, 2009) (Judges AGEE, Wilkinson & Copenhaver (sitting by designation)).

COUNSEL: John Jay Range, Hunton & Williams, Washington, DC, for Appellants. Gerard John Mene, Office of the United States Attorney, Alexandria, VA, for Appellees.

FACTS: Bert Rein and Hunton & Williams (collectively, R&HW) represent parties involved in on-going patent litigation between NTP, Inc.(NTP), and Research In Motion Ltd. (RIM), related to BlackBerry wireless telephone and e-mail devices. In pursuit of documentation related to that litigation, R&HW separately submitted requests under the Freedom of Information Act (FOIA), 5 U.S.C. [section] 552 (2000), for documents from the Agencies.

Rein asked the United States Patent & Trademark Office (USPTO) for documents pertaining to certain patents which were identified by number and referred to collectively as "the Campana Patents," as well as the re-examinations of those patents. Hunton & Williams filed a FOIA request with the Department of Commerce (DOC) seeking similar documents pertaining to the Campana Patents, the NTP patents and re-examinations of those patents.

R&HW filed suit in federal district court alleging that the USPTO failed to fulfill its obligation to conduct adequate searches for responsive documents and wrongfully withheld or redacted responsive documents. The USPTO and the DOC (the Agencies) then provided RH&HW with an additional 1,445 pages of responsive material, some of which contained redactions.

The parties proceeded with discovery and submitted affidavits supporting their positions. In addition, the Agencies submitted a Vaughn index identifying the documents withheld, in whole or in part, based on the claim that the documents were exempt from the FOIA's disclosure requirements.

The Agencies moved for summary judgment, and R&HW moved for partial summary judgment. The district court granted the Agencies' motion for summary judgment and denied R&HW's motion.

R&HW appealed to the 4th Circuit, which affirmed in part, reversed in part, and remanded.

LAW: R&HW alleged that the Agencies had not conducted an adequate search for the documents that R&HW had requested under the FOIA. The FOIA, however, does not require a perfect search, only a reasonable one; see Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986), which this search was.

R&HW further alleged that the Agencies had wrongfully withheld or redacted responsive documents as exempt. The Court determined that the Agencies had not improperly withheld any documents; however, because some of the Vaughn index entries were insufficient for purposes of properly assessing the Agencies' claimed exemptions from FOIA disclosure, the court remanded for clarification of the index entries.