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Court of Appeals Decisions

Appleton Papers, Inc. v. EPA, No. 12-2773, 2012 WL 6684770 (7th Cir. Dec. 26, 2012) (Flaum, J.). Holding: Affirming the district court's grant of summary judgment to defendants on the grounds that the responsive material was protected by the attorney work-product privilege under Exemption 5. The Seventh Circuit notes that plaintiff's "real complaint seems to be the district court's denial of its discovery request." "FOIA is no substitute for discovery."

CareToLive v. FDA, No. 09-4084, 2011 WL 31416 (6th Cir. Jan. 6, 2011) (Martin, J.). The Sixth Circuit holds that the district court acted within its discretion to deny appellant's request for discovery. For one, the Sixth Circuit finds that appellant's affidavit in support of its motion for discovery failed to meet the requirements of Federal Rule of Civil Procedure 56(d) because "[t]he statement was not sworn to before a notary public nor signed under penalty of perjury pursuant to 28 U.S.C. § 1746" and also fails to "set forth any factual basis for the relief [appellant] is seeking." In addition, the Sixth Circuit determines that "[t]he district court did not abuse its discretion when it concluded that [appellant] failed to establish bad faith on the part of the FDA." The Sixth Circuit finds that appellant's allegations regarding the FDA's decision to place appellant's request in a "complex" track, and its claims about the adequacy of search and the pre-request destruction of records do not evidence any agency bad faith.

Wilson v. U.S. Dep't of Transp., No. 10-5295, 2010 WL 5479580 (D.C. Cir. Dec. 30, 2010) (per curiam). The Circuit also notes that discovery is not appropriate where "appellant offered no evidence of bad faith to rebut the agency's affidavits."

Lasko v. DOJ, No. 10-5068, 2010 WL 3521595 (D.C. Cir. Sept. 3, 2010) (per curiam). The court finds that defendants' failure to produce records before a certain date "does not demonstrate that the searches were inadequate, because the failure of a search to produce particular documents, or 'mere speculation that as yet uncovered documents might exist,' does not undermine the adequacy of a search.'"

District Court Decisions

Nat'l Whistleblower Ctr. v. HHS, No. 10-2120, 2012 WL 5463662 (D.D.C. Nov. 9, 2012) (Boasberg, J.).Holding: Granting defendant's motion for summary judgment. The court denies plaintiffs' motion for discovery. The court notes that "[p]laintiffs have essentially obtained the discovery they sought because the [c]ourt agreed to conduct in camera review. . . . Having obtained that review, there is nothing else discovery could offer them."

Carr v. NLRB, No. 2:12-0871, 2012 WL 5462751 (S.D. W.Va. Nov. 8, 2012) (Copenhaver, J.). Holding: Denying plaintiff's "motions to lift stay on discovery and to permit [plaintiff] to conduct discovery.” The court denies plaintiff's request to conduct discovery. Citing prior case law, the court notes that "discovery is customarily circumscribed, or entirely disallowed, in the FOIA context," and that "[i]n the unusual case when discovery has been allowed it is often limited to the agency's search, indexing and classification procedures." Accordingly, the court holds that plaintiff "has not demonstrated at this time that discovery is necessary to properly challenge the NLRB's summary judgment motion."

Cooper v. DOJ, No. 99-2513, 2012 WL 3939231 (D.D.C. Sept. 11, 2012) (Walton, J.). Holding: Granting defendant's renewed motion for summary judgment in part and denying part; granting plaintiff's "motion for leave and to compel" in part. The court denies plaintiff's Motion to File Supplemental Pleading and to Compel Production of Documents to the extent that it seeks discovery "because ''discovery in a FOIA is rare and should be denied where,' as here, '''an agency's declarations are reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute remains,' 'and there is no evidence of 'bad faith' on the agency's part." The court grants plaintiff's motion in part because it did consider the additional arguments presented in the motion to file in addition to the plaintiff's arguments presented in his motion for summary judgment.

Hall v. CIA, No. 04-814, 2012 WL 3143839 (D.D.C. Aug. 3, 2012) (Lamberth, J.). Holding: Granting, in part, CIA's renewed motion for summary judgment on the basis that its searches for certain responsive records were adequate, that certain withholdings under Exemptions 1, 3, 5 and 6 were proper, and that it released all reasonably segregable material; ordering CIA to conduct searches for other records; concluding that CIA must take affirmative steps with respect to certain referred records; ordering release of certain information withheld under Exemption 6; determining DOD must further justify certain Exemption 3 withholdings; and denying plaintiffs' requests for discovery and for in camera review. The court denies plaintiffs' request for discovery, concluding that there is no evidence of bad faith on the part of the CIA. Although plaintiffs argue that "'the CIA's bad faith is manifest by its abuse of the FOIA's fee waiver provisions,'" the court finds that "[e]stimating the search fees – especially of such a broad search as that of the plaintiffs – is no doubt a difficult proposition, and a recalculation of those fees does not show that the previous estimate was intentionally inaccurate." Additionally, the court finds that discovery is premature to probe defendant's search for missing documents where a new search will be conducted.

Raher v. BOP, No. 09-526, 2012 WL 2721613 (D. Or. July6, 2012) (Stewart, Mag.). Holding: Granting plaintiff limited discovery regarding BOP's record retention/destruction policies. The court grants plaintiff limited discovery as to BOP's "applicable record retention policies" and its compliance with such policies. "Given that the BOP admits that it has a policy of routinely destroying employee emails immediately upon the employee's departure, [the court concludes that] it is appropriate to ascertain if that policy complies with the [Federal Records Act] and, if it does, whether and when the BOP imposed a litigation hold on potentially responsive documents." The court observes that such discovery "is relevant to the award of attorney fees" and may also be applicable to other actions "such as a finding of contempt or a referral to the Special Counsel under 5U.S.C. §552(a)(4)(F)." However, the court cautions that plaintiff's "discovery requests may not stray from inquiries that are reasonably calculated to lead to evidence of the lawfulness of BOP's record retention/destruction policies and their application in this case, including the imposition of any litigation hold."

Huene v. U.S. Dep't of Treasury, No. 11-2109, 2012 WL 1681940 (E.D. Cal. May14, 2012) (Newman,Mag.).Holding: Granting defendant's motion to stay discovery pending resolution of the IRS's upcoming motion for summary judgment; and denying plaintiff's request for in camera review of the withheld records. The court grants defendant's motion to stay discovery "pending resolution of the IRS's forthcoming motion for summary judgment" and denies plaintiff's request for an in camera review of the documents in dispute. The court finds that "[i]n this case, which presents a single FOIA claim and centers on whether the IRS properly claimed exemptions from disclosure as to a limited set of documents, it is appropriate to stay discovery until after resolution of a motion for summary judgment adjudicating the propriety of those claimed exemptions." Moreover, the court comments that "[p]laintiff has represented to the court that his sole concern in this case is obtaining the subject documents, and a motion for summary judgment would present the most expeditious means of resolving whether plaintiff is entitled to the remainder of the documents withheld by the IRS."

Families for Freedom v. U.S. Customs & Border Protect., No. 10-2705, 2011 WL 6780905 (S.D.N.Y. Dec. 27, 2011) (Scheindlin, J.). Holding: Granting plaintiffs' motion for summary judgment as to the adequacy of defendants' search and for relief through limited discovery. As a preliminary matter, the court notes that "[d]efendants do not oppose plaintiffs' motion for summary judgment on the adequacy of their search," but, rather, "[r]ecognizing that their search has been inadequate, they ask the Court to hold in abeyance a decision on plaintiffs' motion while CBP completes its searches." The court dismisses defendants' argument that "because the Court previously found [two agency] declarations sufficient, plaintiffs must show bad faith on the part of the agency in order to obtain discovery." Instead, the court finds that "because the agency has not satisfied its burden, a showing of bad faith is not necessary." The court notes that CBP "now acknowledges that its previous searches were insufficient . . . and that its earlier declarations misrepresented the scope of those searches." Additionally, the court notes that "the accuracy of those declarations has been undercut by evidence in the record, including the agency's latest declaration." Secondly, the court finds that "there is tangible evidence in the record that establishes that the agency has not performed an adequate search." The court adds that one declaration "does not explain exactly which files and storage systems are being searched and exactly how the search is being performed." The court grants plaintiffs' request for discovery and orders plaintiffs "to submit a brief letter to the Court describing precisely what limited discovery they believe is appropriate."

Citizens for Resp. & Ethics in Wash. v. VA, No. 08-1481, 2011 WL 6257201 (D.D.C. Dec.15, 2011) (Friedman, J.). Holding: Granting, in part, plaintiff's request for additional discovery as it pertains to explanations provided by the VA regarding the retrievability of certain email backup tapes; denying plaintiff's request to depose another VA employee; and denying plaintiff's request for declaratory relief. The court allows plaintiff "to take [limited] additional discovery for the purpose of determining whether the [VA's] explanation" regarding its inability to recover certain emails contained on backup tapes, which was detailed by the agency in supplement declarations that were not provided to plaintiff until after plaintiff's deposition of an agency declarant in connection with an earlier court order. As such, the court "grants in part [plaintiff's] second [discovery] request: that is, it will approve the deposition of [one agency declarant] and an additional deposition [of the primary agency declarant] both at the VA's expense, for the purpose of obtaining discovery regarding the circumstances of the suspension of normal operations in saving backup tapes as it relates to this case and whether the explanation for the suspension is document destruction or something else." However, the court rules that it will not, at this time, order the deposition of the VA employee whose email accounts were searched.

Mullen v. U.S. Army Crim. Investigation Command, No. 10-262, 2011 WL 5870550 (E.D. Va. Nov.22, 2011) (Cacheris, J.). Holding: Granting defendant's motion to vacate the court's previous scheduling order which required the parties to file proposed discovery plans; granting, in part, defendant's motion to set a summary judgment briefing schedule; and granting, in part, defendant's motion for leave to file a representative sampling. The court grants defendant's motion to vacate its previous scheduling order which required the parties to file proposed discovery plans in advance of a pretrial conference and before defendant moved for summary judgment. The court finds that it "can properly evaluate Plaintiff's concerns about production procedures and FOIA exemptions after the Government has filed its summary judgment motion explaining its decisions." In response to the cases cited by plaintiff which "address whether courts should have granted particular summary judgment motions," the court notes that the fact "[t]hat the Government may fail to meet its burden at the summary judgment stage, is not a reason to order discovery in FOIA cases before the Government has had the opportunity to meet that burden." Additionally, the court finds that plaintiff's claim that "an email produced pursuant to a different FOIA request indicates an attempt to manipulate documents that are responsive to the requests in this case," is not the type of evidence "that would alone necessitate discovery prior to summary judgment."

Raher v. BOP, No. 09-CV-00526, 2011 WL 4832574 (D. Or. Oct. 12, 2011) (Stewart, Mag.). Holding: Denying plaintiff's motions for sanctions; and denying plaintiff's request for discovery. The court denies plaintiff's request for "discovery to show that sanctions are appropriate," and, specifically, to depose defendants' declarants. The court notes that it "is not persuaded discovery is necessary to ferret out any alleged wrongdoing."

Ferguson v. U.S. Dep't of Educ., No. 09-10057, 2011 U.S. Dist. LEXIS 103954 (S.D.N.Y. Sept.13, 2011) (Maas, Mag.). Holding: Granting, in part, and denying, in part, the Department's motion for summary judgment; and ordering the Department to conduct a limited search for records created during a specific timeframe, but concluding that, in all other respects, the search was adequate. At the outset, the court notes that "[d]iscovery in a FOIA case is 'rare and should be denied where an agency's declarations are reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute remains.'" The court concludes that, in this case, "the Department has proffered detailed declarations describing its search efforts, and [plaintiff] has failed to establish that the search was conducted in bad faith." Similarly, the court finds that "in camera review of the Department's withheld records is unnecessary inasmuch as the Department has submitted detailed declarations explaining its basis for redacting its records."

Driggers v. United States, No. 11-229, 2011 WL 2883283 (N.D. Tex. July 18, 2011) (Ramirez, Mag.). Holding: Granting defendants' motion for a protective order staying discovery. The court grants defendants' motion for a protective order staying discovery until such time that it can review defendants' motion for summary judgment and accompanying affidavits. The court notes "[a]llowing Plaintiff to conduct [ ] discovery before Defendants file a motion for summary judgment would essentially provide the relief he seeks through this lawsuit." Furthermore, the court finds that "[o]nly after [defendants] file a motion for summary judgment and supporting affidavits will the Court have the information necessary to appropriately limit the scope of discovery or forego it entirely." To the extent that plaintiff's discovery seeks information regarding the content of the documents and the reasons for their creation, the court notes that such an inquiry "far exceeds the limited scope of discovery usually allowed in a FOIA case."

Justice v. IRS, No. 10-568, 2011 WL 2899189 (D.D.C. July 13, 2011) (Kennedy, J.). Holding: Granting the IRS's motion for summary judgment and concluding that the agency conducted an adequate search for responsive records; and denying plaintiff's request for discovery. The court denies plaintiff's request for discovery "[b]ecause discovery in FOIA cases is the exception and not the rule, and because [plaintiff] has failed to adduce any evidence that the IRS has acted in bad faith."

World Pub. Co. v. DOJ, No. 09-574, 2011 U.S. Dist. LEXIS 32594 (N.D. Okla. Mar. 28, 2011) (Kern, J.). Holding: Concluding that Tulsa World established that it has standing to bring the instant lawsuit; and granting USMS's motion for summary judgment on the basis that it properly withheld booking photographs of third parties pursuant to Exemption 7(C). The court denies plaintiff's request for discovery as to whether USMS has released booking photographs outside of the jurisdiction of the Sixth Circuit, the posting of mug shots of captured fugitives on the USMS website, the relationship between USMS and the Tulsa County Sherriff's Office, evidence concerning the privacy interest of the six individuals at issue, and defendant's prior legal positions. The court finds that these issues are either adequately addressed in USMS's declaration, which is entitled to a presumption of good faith, or has been considered by the court in the instant ruling. Additionally, plaintiff "has failed to raise substantial questions concerning the content or good faith of [USMS's] [d]eclaration."

Reich v. DOE, No. 09-10883, 2011 U.S. Dist. LEXIS 27317 (D. Mass. Mar. 17, 2011) (Gorton, J.). The court denies plaintiff's request for discovery, because DOE's declarations "are 'reasonably detailed' and 'submitted in good faith.'" The court also notes that the plaintiff "has proffered no evidence that any of the declarants has misled the Court or had any motivation to do so" and further comments that "the purported issues of fact [raised by plaintiff] . . . are actually questions of law."

Beltranena v. Clinton, No. 09-1457, 2011 WL 923938 (D.D.C. Mar. 17, 2011) (Friedman, J.). Holding: Denying without prejudice defendant's motion for summary judgment and granting protective order. The court grants the Department of State's motion for a protective order staying discovery. The court denies plaintiff's request for discovery at this time, noting that "even where – as here – 'an agency's affidavits regarding its search are deficient, courts generally do not grant discovery but instead direct the agency to supplement its affidavits.'" Likewise, the court denies plaintiff's request for an in camera review.

Steiniger v. IRS, No. 10-282, 2011 U.S. Dist. LEXIS 22265 (S.D.N.Y. Mar. 3, 2011) (Francis, Mag.). Holding: Granting government's motion for summary judgment upon finding that searches were reasonable and documents properly redacted. Based on the defendants' declarations, the court concludes that "[t]he IRS and EOUSA have each amply demonstrated the adequacy of their respective searches for the documents requested by [plaintiff]." The court rejects plaintiff's claim that "additional documents must exist," noting that "'[s]peculation that other documents exist, without more, does not undermine the finding that the agency conducted a reasonable search.'" Moreover, "the reasonableness of EOUSA's search is not diminished by the fact that documents were not discovered until a second search was conducted." As to plaintiff's complaints that the IRS "refused to answer his inquiry about his tax status," the court determines that the "FOIA obligates government agencies only to disclose records, not to respond to inquiries."

Schoenman v. FBI, No. 04-2202, 2011 WL 446857 (D.D.C. Feb. 9, 2011) (Kollar-Kotelly, J.). The court denies plaintiff's request for discovery, finding that because "summary judgment has already been granted in the FBI's favor as to the reasonableness of the search, . . . there is simply no basis for conducting discovery on an issue already decided by the Court." Moreover, "where, as here, the agency's declarations are sufficiently detailed and the district court is satisfied that no material dispute remains, discovery should be denied."

Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the Fed. Reserve Sys., No. 09-2436, 2011 WL 332541 (D.D.C. Feb. 3, 2011) (Huvelle, J.). The court denies plaintiff's request for discovery as to the adequacy of the Board's search, noting that "[d]iscovery is generally unavailable in FOIA actions . . . and 'should be denied where an agency's declarations are reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute remains.'"

Schoenman v. FBI, No. 04-02202, 2011 WL 187223 (D.D.C. Jan 21, 2011) (Kollar-Kotelly, J.). The court denies plaintiff's request for discovery because the "agency's declarations are sufficiently detailed," "no factual dispute remains," and plaintiff "has failed to raise substantial, or even colorable, doubt concerning the adequacy or good faith of the CIA's search."

Exxon Mobil Corp. v. U.S. Dep't of the Interior, No. 09-6732, 2010 WL 4668452 (E.D. La. Nov. 4, 2010) (Wilkinson, Mag.). The court dismisses plaintiff's request to depose the MMS declarant where the agency "declarations are facially adequate" and plaintiff has not carried its burden to show bad faith. The court finds that MMS's first declaration "describes the persons involved in the search and response, the way in which the MMS maintains its files, the location of responsive documents within those files, the limitations imposed by both the file system and the staffing of the MMS office, the time spent by some MMS employees in compiling the information that MMS provided to [plaintiff] and the availability of many of the documents sought either on the MMS's public websites or within the Administrative Record lodged with the Interior Board of Land Appeals in connection with [plaintiff's] appeal of the denials of its [suspension of production requests]." Additionally, the court notes that the second declaration, which was submitted to detail MMS's response to the narrowed requests submitted by plaintiff and ordered by the court, indicates "either that no responsive documents exist, that responsive documents are attached, that responsive documents are now available on the MMS's website or that responsive documents are being withheld pursuant to the statutory exemption for confidential and proprietary information." The court also finds that plaintiff's various allegations do not constitute bad faith "sufficient to support its request for discovery."

Jarvik v. CIA, No. 08-1911, 2010 WL 3832557 (D.D.C. Sept. 28, 2010) (Urbina, J.). The court finds that discovery is not warranted to depose the CIA's declarant "to ascertain [his[personal knowledge of the search" where he holds a supervisory position overseeing FOIA requests. The court also denies plaintiff's request for discovery on the basis that the CIA's declarations were reasonably detailed and submitted in good faith.

Potomac Navigation, Inc. v. U.S. Maritime Administration, No. 09-217, 2009 U.S. Dist. LEXIS 116673 (D. Md. Dec. 15, 2009) (Nickerson, J.) . Due to deficiencies in the agency affidavits, the court allows plaintiff to take depositions of certain "knowledgeable" individuals in order to inquire into the reasons for the lack of records related to aspects of its request.

Taylor v. Babbitt, No. 03-0173, 2009 WL 4795837 (D.D.C. Dec. 15, 2009) (Urbina, J.). The court denies without prejudice plaintiff's motion for discovery. "Postponing discovery until after the government has submitted its dispositive motion and supporting documents allows the court to obtain information necessary to appropriately limit the scope of discovery or forgo it entirely." Plaintiff may file a renewed motion once the government has submitted its motion for summary judgment because "[a]t that point, the court will have had the opportunity to review the merits of the defendants' exemption claim and will be better suited to make a discovery ruling."

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