Case 2:17-cv NBF Document 55 Filed 12/22/17 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

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1 Case 2:17-cv NBF Document 55 Filed 12/22/17 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA PROJECT ON PREDATORY STUDENT LENDING OF THE LEGAL SERVICES CENTER OF HARVARD LAW SCHOOL, v. Plaintiff, UNITED STATES DEPARTMENT OF JUSTICE, Defendant. Civil Action No. 2:17-cv NBF Hon. Nora Barry Fischer Electronically Filed Document MEMORANDUM IN SUPPORT OF PLAINTIFF S MOTION TO STRIKE STATEMENTS FROM THE DECLARATIONS OF JOHN KORNMEIER AND MICHAEL A. COMBER Plaintiff Project on Predatory Student Lending of the Legal Services Center of Harvard Law School respectfully moves to strike certain statements in Defendant s declarations that fail to comply with Rule 56(c(4 of the Federal Rules of Civil Procedure. These statements are inadmissible because they are not based on the declarants personal knowledge, rely on inadmissible hearsay, or are improper conclusions of law. RULE 56(c(4 STANDARD Any declaration used to support a motion for summary judgment must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. Fed. R. Civ. P. 56(c(4. Such a declaration must ordinarily set forth facts, rather than opinions or conclusions. Maldonado v. Ramirez, 757 F.2d 48, 51 (3d Cir [E]ssentially conclusory affidavits are inadequate to

2 Case 2:17-cv NBF Document 55 Filed 12/22/17 Page 2 of 10 satisfy the movant s burden. Id. 1 In reviewing motions for summary judgment, courts may not consider portions of declarations that contain inadmissible evidence. See Davis v. Portline Transportes Mar. Internacional, 16 F.3d 532, 537 n.6 (3d Cir Statements in a declaration are inadmissible if the declaration lacks facts sufficient to establish that the declarant has personal knowledge of the matters attested to in the declaration. See id. Rule 56(c(4 makes no exception for attorney declarants, whose declarations may only include facts of which the attorney has personal knowledge and to which the attorney is competent to testify. See Fed. R. Civ. P. 56(c(4; Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir (concluding that attorney s affidavit was insufficient to support motion for summary judgment because of lack of personal knowledge. ARGUMENT I. Statements in paragraphs 5, 6, 7, 8, 11, 12, and 13 of Attorney Kornmeier s declaration and paragraphs 11(a, 25, 26, and 27 of Attorney Comber s declaration should be stricken because they are not based on declarants personal knowledge and instead rely on inadmissible hearsay. This case presents something of a quandary for the Government s declarants: While disclaiming any knowledge of the Hard Drives to support their argument that records at issue are not agency records, they must nevertheless assert sufficient information about the attributes of the Hard Drives and the documents stored thereon to support their argument that they have determined that searching the Hard Drives to identify documents responsive to the Project s request would be unduly burdensome. Unable to do both, the Government s declarants rely on inadmissible hearsay representations of counsel for EDMC to support their 1 Internal quotation marks and citations omitted throughout. 2

3 Case 2:17-cv NBF Document 55 Filed 12/22/17 Page 3 of 10 statements about the volume and format of the Hard Drives and the documents they contain. Statements in paragraphs 5, 6, 7, 8, 11, 12, 13 of Attorney Kornmeier s declaration Attorney Kornmeier, per his declaration, is an Attorney-Advisor with the Executive Office for United States Attorneys ( EOUSA, United States Department of Justice. Kornmeier Decl. 1, Dkt. No Paragraph 5 of Attorney Kornmeier s declaration states: EDMC provided information in discovery in the EDMC litigation to United States Attorney s Office for the Western District of Pennsylvania ( USAO-WDPA on external electronic media, consisting predominately of hard drives (collectively, the Hard Drives, which based on representations from EDMC s counsel, contain more than 20 million documents, constituting 9 terabytes of electronically stored information (in compressed form, which, if printed, would total more than 145 million pages. See Declaration of Matthew R. Divelbiss, 2, ECF No , United States ex rel. Washington v. Education Management Corp., No. 2:07-cv- 461 (W.D. Pa. Feb. 2, 2017[.] Subsequent paragraphs in Attorney Kornmeier s declaration (paragraphs 7, 11, and 13 in their entirety, and paragraphs 6, 8, and 12 in part rely on the truth of these representations from EDMC s counsel, id., to describe what the Executive Office for United States Attorneys s review of EDMC s claimed volume of documents would entail and to draw the legal conclusion that the described review would be unduly burdensome. See Kornmeier Decl. 6-8, Statements in paragraphs 11(a, 25, 26, and 27 of Attorney Comber s declaration Attorney Comber, per his declaration, is Chief of the Civil Division... in the United States Attorney s Office for the Western District of Pennsylvania ( USAO-WDPA. Declaration of Michael A. Comber ( Comber Decl. 1, Dkt. No Paragraph 11(a of Attorney Comber s declaration states: As represented by counsel for EDMC, the Hard Drives together contained over 20 million documents, comprising over nine terabytes of electronically stored information (in compressed form, which, if printed, would exceed 145 million pages. See Declaration of Matthew R. Divelbiss, 2, ECF No , United States 3

4 Case 2:17-cv NBF Document 55 Filed 12/22/17 Page 4 of 10 ex rel. Washington v. Education Management Corp., No. 2:07-cv-461 (W.D. Pa. Feb. 2, Due to the volume of electronically stored information that EDMC produced in discovery, the USAO-WDPA did not have the capability to upload, process, or host all of the electronically stored information that EDMC produced on the Hard Drives. Subsequent paragraphs in Attorney Comber s declaration (paragraphs 26 and 27 in their entirety, and paragraph 25 in part rely on the truth of representations by counsel for EDMC, id., to describe what the USAO-WDPA s review of EDMC s claimed volume of documents would entail and to draw the legal conclusion that the described review would be unduly burdensome. See Comber Decl ***** These statements in Attorney Kornmeier s declaration and Attorney Comber s declaration should be stricken for several reasons. First, neither declaration provides factual support for a finding that the declarant has personal knowledge of the volume or format of either the Hard Drives or the documents stored thereon. To the contrary, Attorney Comber avers that EDMC produced materials... to the Deputy Chief of the Civil Division, Christy C. Wiegand, Comber Decl. 11; that upon receipt of the Hard Drives, the USAO-WDPA immediately sent the Hard Drives to the McKool Smith law firm, id. 11(a (emphasis added; that the USAO- WDPA did not upload, process, or host any of the Hard Drives on a review platform maintained by the USAO-WDPA, id.; and that the Civil Division [a]t no point... read or review[ed] the electronically stored information directly from the Hard Drives, id. 23. Because neither declarant can demonstrate competence to testify on the volume or format of the materials produced, both rely entirely on counsel for EDMC s representations regarding the volume and format of those materials. See Kornmeier Decl. 5; Comber Decl. 11(a. But those representations are inadmissible hearsay: They were not made by EDMC s counsel while 4

5 Case 2:17-cv NBF Document 55 Filed 12/22/17 Page 5 of 10 testifying at the current trial or hearing, Fed. R. Evid. 801(c; they are being offered by Attorneys Kornmeier and Comber for their truth, see id.; and they do not fall within the rule against hearsay s exclusionary provisions, see Fed. R. Evid. 801(d, or exceptions, see Fed. R. Evid Because they are not based on the declarants personal knowledge and because they rely on inadmissible hearsay: Paragraphs 7, 11, and 13 of Attorney Kornmeier s declaration, and paragraphs 11(a, 26, and 27 of Attorney Comber s declaration, should be stricken in their entirety; and Statements in paragraphs 5, 6, 8, and 12 of Attorney Kornmeier s declaration, 2 2 The following statements should be stricken from the following paragraphs of the Kornmeier Declaration: Paragraph 5: which based on representations from EDMC s counsel, contain more than 20 million documents, constituting 9 terabytes of electronically stored information (in compressed form, which, if printed, would total more than 145 million pages. See Declaration of Matthew R. Divelbiss, 2, ECF No , United States ex rel. Washington v. Education Management Corp., No. 2:07-cv-461 (W.D. Pa. Feb. 2, Paragraph 6: The first set are the 145 million pages that EDMC produced in discovery on the Hard Drives. Part I of this declaration describes why the FOIA processing and review of the electronically stored information on the Hard Drives is unduly burdensome. Paragraph 8: Even supposing that electronically stored information on the Hard Drives could be readily available on an electronic review platform, the responsiveness of each document to Plaintiff s FOIA request could not be evaluated through search terms or predictive coding; rather each of the 20 million documents would have to be reviewed individually for responsiveness. Paragraph 12: not only would reviewing and processing documents sought by Plaintiff s FOIA request require 460 years, but also doing so would require EOUSA to place on hold an estimated 1,841,300 FOIA requests received by EOUSA from other FOIA requestors in the meantime: the sum of the current backlog (1300 requests and the estimated future backlog (4000 requests per year multiplied by 460 years. 5

6 Case 2:17-cv NBF Document 55 Filed 12/22/17 Page 6 of 10 and in paragraph 25 of Attorney Comber s declaration, 3 should be stricken. II. Statements in paragraphs 6, 7, 13, and 17 of Attorney Kornmeier s declaration and paragraphs 18, 19, 25, and 27 of Attorney Comber s declaration are improper conclusions of law and should be stricken. The Government s declarations are replete with conclusions of law framed as factual assertions. Statements in paragraphs 6, 7, 13, and 17 of Attorney Kornmeier s declaration Paragraphs 6, 7, and 13 of Attorney Kornmeier s declaration all state that EOUSA s review of the documents initially produced on the Hard Drives would be unduly burdensome. Paragraph 17 of Attorney Kornmeier s declaration states that [n]o public interest would counterbalance the individuals privacy right in the information withheld under [Exemption (b(6]. Statements in paragraphs 18, 19, 25, and 27 of Attorney Comber s declaration Paragraph 18 of Attorney Comber s declaration characterizes USAO-WDPA s 3 The following statements should be stricken from paragraph 25 of the Comber declaration: It would be unduly burdensome for the USAO-WDPA to process, store, and host the electronically stored information on the Hard Drives in order for that information to become reviewable. The Hard Drives contain over nine terabytes of electronically stored information (in compressed form, and the USAO-WDPA does not have the technological capability to process the data if necessary to conform it to current specifications for review platforms, or to load, store, host, or review that volume of data on its servers. The monthly cost for electronic storage of approximately nine terabytes would be approximately $1290 (1024 gigabytes per terabyte, multiplied by nine terabytes, multiplied by 14 cents. Even if it could contract to host that volume of data, the USAO-WDPA does not have advanced software (such as Relativity that would enable review and redaction of the over 20 million documents contained on the Hard Drives. And even if the USAO-WDPA could gain access to software and expand its infrastructure to run such software that would enable processing (if necessary, loading, hosting, review, and redaction of the materials on the Hard Drives, the costs to the USAO of doing so would be prohibitive. 6

7 Case 2:17-cv NBF Document 55 Filed 12/22/17 Page 7 of 10 searches as in excess of the adequate search requirement. Paragraph 19 of Attorney Comber s declaration states: The Hard Drives do not constitute agency records. Paragraphs 25 and 27 of Attorney Comber s declaration both state that the USAO- WDPA s review of the documents initially produced on the Hard Drives would be unduly burdensome. ***** The foregoing statements are improper conclusions of law. Whether an agency s search for records responsive to a FOIA request was adequate including whether the agency improperly excluded documents from its search on the grounds of undue burden is a question of law, with respect to which Defendant bears the burden of proof. See Pl. Mem ; Abdelfattah v. U.S. Dep t of Homeland Sec., 488 F.3d 178, 182 (3d Cir ( To demonstrate the adequacy of its search, the agency should provide a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials... were searched. (emphasis added. The Government also bears the burden of proving, as a matter of law, that requested documents are not agency records. See U.S. Dep t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989 ( The burden is on the agency to demonstrate, not the requester to disprove, that the materials sought are not agency records. ; Teich v. Food & Drug Admin., 751 F. Supp. 243, 249 (D.D.C ( In light of Tax Analysts, it is not the agency s right to determine which records in its possession are not agency records subject to the FOIA.. Finally, it is for the Court to decide whether the Government properly withheld entire records on the basis of FOIA Exemption 6, by determin[ing] whether the information sought is subject to privacy protection and, if so, whether the invasion of privacy 7

8 Case 2:17-cv NBF Document 55 Filed 12/22/17 Page 8 of 10 is clearly unwarranted. This inquiry involves a balancing of the public interest served by disclosure against the harm resulting from the invasion of privacy. Int l Bhd. of Elec. Workers Local Union No. 5 v. U.S. Dep t of Hous. & Urban Dev., 852 F.2d 87, 89 (3d Cir Because the foregoing statements in the Government s declarations are bare assertions of ultimate legal conclusions and amount to no more than additional legal argument as to the correct interpretation of the applicable law, they should be stricken. PNC Bank v. Liberty Mut. Ins. Co., 912 F. Supp. 169, 177 (W.D. Pa. 1996; see also 10B Charles Alan Wright et al., Federal Practice & Procedure 2738 (4th ed. ( [U]ltimate or conclusory facts and conclusions of law... cannot be utilized on a summary-judgment motion. Similarly, the mere reargument of a party s case... will be disregarded.. III. Paragraph 11(c of Attorney Comber s declaration is unsupported by personal knowledge and should be stricken. Paragraph 11(c of Attorney Comber s declaration states: Neither the Hard Drives nor the AI Dallas CD was encoded with metadata that would enable any party to identify the precise discovery request to which the specific file corresponded. This paragraph should be stricken because Attorney Comber s declaration provides no factual support for a finding that he has personal knowledge of the format of either the Hard Drives or the documents stored thereon, including whether those materials contained metadata and if so, what that metadata consisted of. Again, Attorney Comber avers that EDMC produced materials... to the Deputy Chief of the Civil Division, Christy C. Wiegand, Comber Decl. 11; that upon receipt of the Hard Drives, the USAO-WDPA immediately sent the Hard Drives to the McKool Smith law firm, id. 11(a (emphasis added; that the USAO-WDPA did not upload, process, or host any of the Hard Drives on a review platform maintained by the USAO- WDPA, id.; and that the Civil Division [a]t no point... read or review[ed] the electronically 8

9 Case 2:17-cv NBF Document 55 Filed 12/22/17 Page 9 of 10 stored information directly from the Hard Drives, id. 23. Because this paragraph is plainly not based on Attorney Comber s personal knowledge, it should be stricken. CONCLUSION For the foregoing reasons, the above-described statements in Attorney Kornmeier s declaration and Attorney Comber s declaration fail to satisfy the requirements of Rule 56(c(4 of the Federal Rules of Civil Procedure, and should therefore be stricken. The attached proposed order delineates the statements to be stricken. Dated: December 22, 2017 Respectfully submitted, /s/ Amanda Savage Amanda Savage (admitted pro hac vice MA Eileen Connor (admitted pro hac vice MA Toby Merrill (admitted pro hac vice MA Project on Predatory Student Lending Legal Services Center of Harvard Law School 122 Boylston Street Jamaica Plain, MA Tel.: ( Fax: ( asavage@law.harvard.edu Jennifer Bennett (admitted pro hac vice CA Public Justice th Street, Suite 1230 Oakland, CA Tel.: ( Fax: ( jbennett@publicjustice.net Counsel for Plaintiff 9

10 Case 2:17-cv NBF Document 55 Filed 12/22/17 Page 10 of 10 CERTIFICATE OF SERVICE I hereby certify that on December 22, 2017, I electronically filed the foregoing Memorandum in Support of Plaintiff s Motion to Strike Statements in the Declarations of John Kornmeier and Michael A. Comber using the CM/ECF system, which will send notification of such to all counsel of record. /s/ Amanda Savage Amanda Savage Counsel for Plaintiff