New York Times Co. v. Treasury, No. 15-5740, 2016 WL 1651867 (S.D.N.Y. Apr. 26, 2016) (Ramos, J.)

New York Times Co. v. Treasury, No. 15-5740, 2016 WL 1651867 (S.D.N.Y. Apr. 26, 2016) (Ramos, J.)

Re: Plaintiff's motion for depositions of three Treasury employees relating to plaintiff's request for documents concerning sanctioning decisions

Disposition: Denying plaintiff's motion for depositions; ordering defendant to provide additional affidavit or declaration

• Litigation Considerations, Discovery:  The court denies plaintiff's motion for discovery.  The court relates that "[plaintiff] does not maintain that Treasury's search was incomplete or inaccurate."  "Rather, [plaintiff] argues that depositions are needed because there remains a factual dispute in the case – namely, the contemporaneous basis for the initial determination that the Memo was 'responsive' to the Request."  "To put a finer point on it, the Times wants depositions to probe whether Treasury's 'liberal' determination that the Memo was responsive to the some of the request but not the 'aspect' requesting the 'governing legal protocol' was (i) the actual reasoning employed at the time the request was processed, or (ii) an ex-post explanation created for this lawsuit."  However, the court finds that "[n]othing in these declarations suggests that two different responsiveness determinations were made."  "[Plaintiff], therefore, is not really identifying a contradiction or inconsistency, so much as it is asking the Court to infer bad faith from the fact that the . . . Reply did not explicate the reasoning later provided in the . . . Declaration."  "This provides only a weak inference of bad faith, at best, and thus the Court declines to order depositions on that basis."  "It is true, however, as [plaintiff] argues, that the . . . Declaration is not specific enough and leaves a small but noteworthy gap in the factual record, i.e., the facts underlying [the delcarant's] own individual determination that the Memo was responsive to the Request."  "The Government is thus ordered to submit an additional affidavit or declaration . . . describing the specific factual basis that [the declarant] relied upon to deem the Memo responsive."