Joint status report on search-adequacy dispute — PHMPT v. FDA

Record facts

U.S. District Court for the Northern District of Texas · No. 4:21-cv-01058-P · Doc. 88 · 2024-10-15 · Docket on CourtListener

Full text

1 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF TEXAS 
 
) 
PUBLIC HEALTH AND MEDICAL 
) 
PROFESSIONALS FOR 
) 
TRANSPARENCY, 
) 
) 
Plaintiff, 
) 
) 
v. 
) 
Civil Action No. 4:21-cv-01058-P 
) 
UNITED STATES FOOD AND DRUG ) 
ADMINISTRATION, 
) 
) 
Defendant. 
) 
  
  ) 
 
JOINT STATUS REPORT 
 
Pursuant to the Court’s Order dated January 6, 2022 (Dkt. No. 35) and the parties’ Joint 
Status Report (“JSR”) dated August 16, 2024 (Dkt. No. 80), the parties hereby submit the instant 
JSR.  
As the parties reported in their last JSR, see Dkt. No. 80, the U.S. Food and Drug 
Administration (“FDA”) represented that it completed its processing and/or production (of a total of 
approximately 1.2 million responsive pages) on November 1, 2023. As the parties reported in their 
subsequent joint status letter dated September 2, 2024, see Dkt. No. 83, “there is a contested issue 
concerning the adequacy of the search which they have been unable to resolve despite conferring 
multiple times regarding same.” On September 6, 2024, the Court entered a briefing schedule for 
the parties’ cross-motions for summary judgment regarding adequacy of the search. See Dkt. No. 
85.    
Following the September 26, 2024 telephonic status conference with the Court, on October 
1, 2024, Plaintiff Public Health and Medical Professionals for Transparency’s (“PHMPT”) 
Case 4:21-cv-01058-P   Document 88   Filed 10/15/24    Page 1 of 4   PageID 2355

 
2 
 
submitted a letter to the Court “waiv[ing] the right to challenge the redactions and withholdings in 
the production to date” and stating, among other things, that the Court “may … close the case” 
following briefing on “adequacy of search.”1   
Pursuant to the briefing schedule, FDA will submit its motion for summary judgment 
regarding adequacy of the search on October 17; PHMPT will submit its cross-motion for summary 
judgment regarding adequacy of the search and opposition to FDA’s motion on November 7; FDA 
will submit its reply in support of its motion and opposition to PHMPT’s cross-motion on November 
21; and PHMPT will submit its reply in support of its cross-motion on December 5.  
Given that the parties are now at the summary judgment briefing stage, the parties 
respectfully request that the Court relieve them of the obligation to continue to file joint status reports 
at regular intervals. Absent such an order, the parties intend to submit another joint status report 
within 90 days, i.e., by January 13, 2025 by 6:00 p.m. Eastern Standard Time. 
 
 
 
1 In that letter, PHMPT stated its view that any of its individual members may later submit a new 
FOIA request to FDA to “challenge a redacted or withheld document from this production,” which 
FOIA request would “go through the normal administrative course.”  The letter also stated that, 
“[s]hould the administrative process not provide the desired outcome, that member may then litigate 
to challenge the redactions or withholdings in a separate litigation from the instant litigation.”  FDA 
reserves the right to process any future FOIA requests according to its normal processes and to assert 
any legal or equitable defenses that it determines at the time are applicable, including, for example, 
on the basis that the requester is estopped from pursuing information/claims that were waived in the 
instant litigation and arguments with respect to standing. 
Case 4:21-cv-01058-P   Document 88   Filed 10/15/24    Page 2 of 4   PageID 2356

 
3 
 
Dated: October 15, 2024 
 
 
 
Respectfully submitted, 
 
SIRI & GLIMSTAD LLP 
 
/s/ Elizabeth A. Brehm _______ 
Elizabeth A. Brehm, NY Bar No. 4660353 
200 Park Avenue 
    17th Floor 
New York, New York 10166 
Tel: (212) 532-1091 
ebrehm@sirillp.com    
 
Attorney for Plaintiff 
 
BRIAN M. BOYNTON 
Principal Deputy Assistant 
Attorney General 
Civil Division 
 
ELIZABETH J. SHAPIRO 
   Deputy Director 
   Federal Programs Branch 
 
/s/ Andrew F. Freidah 
 
ANDREW F. FREIDAH 
   Trial Attorney 
United States Department of Justice 
Civil Division, Federal Programs 
Branch 
1100 L Street NW 
   Washington, D.C. 20005 
   Tel: (202) 305-0879 
   Email: andrew.f.freidah@usdoj.gov 
 
Attorneys for Defendant 
 
Case 4:21-cv-01058-P   Document 88   Filed 10/15/24    Page 3 of 4   PageID 2357

 
 
CERTIFICATE OF SERVICE 
 
I hereby certify that on October 15, 2024, I electronically transmitted the foregoing to 
the  parties and the clerk of court for the United States District Court for the Northern District of 
Texas using the CM/ECF filing system. 
 
/s/ Andrew F. Freidah  
ANDREW F. FREIDAH 
   Trial Attorney 
United States Department of Justice  
Civil Division, Federal Programs Branch 
1100 L Street NW 
   Washington, D.C. 20005 
   Tel: (202) 305-0879 
   Email: andrew.f.freidah@usdoj.gov 
 
 
Case 4:21-cv-01058-P   Document 88   Filed 10/15/24    Page 4 of 4   PageID 2358

File and source

File

gov.uscourts.txnd.353278.88.0.pdf

Size

137,485 bytes

SHA-256

541933a9d71f159d050e401321cd1aa0e60d7bb47945a2de05d602f0a059ac97

Our copy

gov.uscourts.txnd.353278.88.0.pdf

Original

archive.org