UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
BRENT TAYLOR, : : Plaintiff, : Civil Action No.: 03-0173 (RMU) : v. : Re Document No.: 60 : J. RANDOLPH BABBITT, Administrator, : Federal Aviation Administration, et al., : : Defendants. :
MEMORANDUM OPINION
DENYING WITHOUT PREJUDICE THE PLAINTIFF’S MOTION TO ALLOW DISCOVERY
I. INTRODUCTION
This matter comes before the court on the plaintiff’s renewed motion for discovery. The
plaintiff commenced this action pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, seeking to compel the Federal Aviation Administration (“FAA”) to disclose design
specifications for an antique aircraft called the Fairchild F-45. The Fairchild Corporation, the
alleged record owner of the F-45 design specification, has intervened as a defendant. The
plaintiff now seeks discovery related to his underlying FOIA request. Because discovery is not
warranted at this time, the court denies the plaintiff’s motion without prejudice to reconsideration
of a renewed motion filed after the defendants have moved for summary judgment.
II. FACTUAL & PROCEDURAL BACKGROUND
The facts underlying this dispute are set forth in a prior memorandum opinion. See Mem.
Op. (May 12, 2005). On January 5, 2004, the plaintiff filed a motion to allow discovery. See
Pl.’s 1st Mot. for Disc. Through his motion, the plaintiff sought information related to whether the requested F-45 design specifications were actually maintained as a trade secret, as asserted
by the FAA. Id. The court denied the plaintiff’s motion, holding that discovery in the FOIA
action was unwarranted before the government filed its motion for summary judgment. See
Mem. Op. (Aug. 12, 2004). On November 15, 2004, the Fairchild Corporation intervened as a
defendant. See Mem. Order (Nov. 15, 2004). Subsequently, on January 10, 2005, the defendants
filed a motion to dismiss or, in the alternative, for summary judgment, arguing that claim
preclusion barred the plaintiff’s action because, under the doctrine of “virtual representation,” the
plaintiff was in privity with a plaintiff that had previously initiated a similar action in the Tenth
Circuit. See Defs.’ Mot. for Summ. J. at 12-21. The defendants also argued that the materials
requested by the plaintiff were exempt from disclosure pursuant to the trade secret exemption of
FOIA (“Exemption 4”). Id. at 22-36.
The court granted the defendants’ motion for summary judgment, concluding that the
action was barred by the doctrine of claim preclusion. See Mem. Op. (May 12, 2005).
Consequently, the court declined to pass on the parties’ Exemption 4 arguments. Id. The Circuit
affirmed the court’s holding on the claim preclusion issue, and did not address whether the
records sought were exempt from disclosure under Exemption 4. See Taylor v. Blakey, 490 F.3d
965, 977 (D.C. Cir. 2007). The Supreme Court granted certiorari, see Taylor v. Sturgell, 128 S.
Ct. 977 (2008), and vacated the Circuit’s ruling on the virtual representation issue, see Taylor v.
Sturgell, 128 S. Ct. 2161, 2167 (2008). Following remand, the plaintiff filed a renewed motion
for discovery to which the court now turns. See generally Pl.’s 2d Mot. for Disc. (“Pl.’s Mot.”).
2 II. ANALYSIS
A. Legal Standard for Discovery in FOIA Cases
As a general rule, “[d]iscovery in FOIA [actions] 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.” Schrecker v. Dep’t of Justice, 217 F. Supp. 2d 29, 35 (D.D.C.
2002), aff’d, 349 F.3d 657 (D.C. Cir. 2003); see also Judicial Watch, Inc. v. Dep’t of Justice, 185
F. Supp. 2d 54, 65 (D.D.C. 2002) (noting that “[d]iscovery is not favored in lawsuits under the
FOIA”). Discovery is only appropriate when it appears an agency has not undertaken an
adequate search for responsive documents, Schrecker, 217 F. Supp. 2d at 35, or, when necessary,
to determine the applicability of FOIA disclosure exemptions, see Miscavige v. Internal Revenue
Serv., 2 F.3d 366, 369 (11th Cir. 1993); Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978)
(holding that the district court may require in camera review to determine whether a disclosure
exemption applies); Kay v. Fed. Commc’ns Comm’n, 976 F. Supp. 23, 33 (D.D.C. 1997).
Discovery is not warranted “when it appears that discovery would only . . . afford[] [the plaintiff]
an opportunity to pursue a bare hope of falling upon something that might impugn the
affidavits.” Military Audit Project v. Casey, 656 F.2d 724, 751-52 (D.C. Cir. 1981) (internal
quotations omitted); see also Broaddrick v. Executive Office of the President, 139 F. Supp. 2d
55, 63-64 (D.D.C. 2001). If an agency’s affidavits regarding its search are sufficient, the judge
has broad discretion to forgo discovery. Meeropol v. Meese, 790 F.2d 942, 960-61 (D.C. Cir.
1986); see also Schleeper v. Dep’t of Justice, 1999 WL 325515, at *1 (D.C. Cir. Apr. 30, 1999)
(per curiam) (affirming the lower court’s denial of discovery). Even if an agency’s affidavits
regarding its search are deficient, courts generally do not grant discovery but instead direct the
agency to supplement its affidavits. Judicial Watch, 185 F. Supp. 2d at 65.
3 B. Discovery is Unwarranted at this Time
As this court noted in a prior opinion, see Mem. Op. (Aug. 3, 2004), in the exceptional
case in which a court permits discovery in a FOIA action, such discovery should only occur after
the government has moved for summary judgment, see, e.g., Miscavige, 2 F.3d at 369 (holding
that a plaintiff’s request for discovery is inappropriate until the government has had an
opportunity to provide the court with the information necessary to make a decision on the
applicable FOIA exemptions); Krieger v. Fadely, 199 F.R.D. 10, 14 (D.D.C. 2001) (stating that
discovery in FOIA cases should “ordinarily occur after the government moves for summary
judgment”); Murphy v. FBI, 490 F. Supp. 1134, 1136 (D.D.C. 1980) (asserting that whether a
case “warrants discovery is a question of fact that can only be determined after the defendants
file their dispositive motion and accompanying affidavits”). Postponing discovery until 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.
See Murphy, 490 F. Supp. at 1137 (noting that requiring the government to submit its dispositive
motion before ordering discovery provides information as to whether discovery is necessary); see
also Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
BRENT TAYLOR, : : Plaintiff, : Civil Action No.: 03-0173 (RMU) : v. : Re Document No.: 60 : J. RANDOLPH BABBITT, Administrator, : Federal Aviation Administration, et al., : : Defendants. :
MEMORANDUM OPINION
DENYING WITHOUT PREJUDICE THE PLAINTIFF’S MOTION TO ALLOW DISCOVERY
I. INTRODUCTION
This matter comes before the court on the plaintiff’s renewed motion for discovery. The
plaintiff commenced this action pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, seeking to compel the Federal Aviation Administration (“FAA”) to disclose design
specifications for an antique aircraft called the Fairchild F-45. The Fairchild Corporation, the
alleged record owner of the F-45 design specification, has intervened as a defendant. The
plaintiff now seeks discovery related to his underlying FOIA request. Because discovery is not
warranted at this time, the court denies the plaintiff’s motion without prejudice to reconsideration
of a renewed motion filed after the defendants have moved for summary judgment.
II. FACTUAL & PROCEDURAL BACKGROUND
The facts underlying this dispute are set forth in a prior memorandum opinion. See Mem.
Op. (May 12, 2005). On January 5, 2004, the plaintiff filed a motion to allow discovery. See
Pl.’s 1st Mot. for Disc. Through his motion, the plaintiff sought information related to whether the requested F-45 design specifications were actually maintained as a trade secret, as asserted
by the FAA. Id. The court denied the plaintiff’s motion, holding that discovery in the FOIA
action was unwarranted before the government filed its motion for summary judgment. See
Mem. Op. (Aug. 12, 2004). On November 15, 2004, the Fairchild Corporation intervened as a
defendant. See Mem. Order (Nov. 15, 2004). Subsequently, on January 10, 2005, the defendants
filed a motion to dismiss or, in the alternative, for summary judgment, arguing that claim
preclusion barred the plaintiff’s action because, under the doctrine of “virtual representation,” the
plaintiff was in privity with a plaintiff that had previously initiated a similar action in the Tenth
Circuit. See Defs.’ Mot. for Summ. J. at 12-21. The defendants also argued that the materials
requested by the plaintiff were exempt from disclosure pursuant to the trade secret exemption of
FOIA (“Exemption 4”). Id. at 22-36.
The court granted the defendants’ motion for summary judgment, concluding that the
action was barred by the doctrine of claim preclusion. See Mem. Op. (May 12, 2005).
Consequently, the court declined to pass on the parties’ Exemption 4 arguments. Id. The Circuit
affirmed the court’s holding on the claim preclusion issue, and did not address whether the
records sought were exempt from disclosure under Exemption 4. See Taylor v. Blakey, 490 F.3d
965, 977 (D.C. Cir. 2007). The Supreme Court granted certiorari, see Taylor v. Sturgell, 128 S.
Ct. 977 (2008), and vacated the Circuit’s ruling on the virtual representation issue, see Taylor v.
Sturgell, 128 S. Ct. 2161, 2167 (2008). Following remand, the plaintiff filed a renewed motion
for discovery to which the court now turns. See generally Pl.’s 2d Mot. for Disc. (“Pl.’s Mot.”).
2 II. ANALYSIS
A. Legal Standard for Discovery in FOIA Cases
As a general rule, “[d]iscovery in FOIA [actions] 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.” Schrecker v. Dep’t of Justice, 217 F. Supp. 2d 29, 35 (D.D.C.
2002), aff’d, 349 F.3d 657 (D.C. Cir. 2003); see also Judicial Watch, Inc. v. Dep’t of Justice, 185
F. Supp. 2d 54, 65 (D.D.C. 2002) (noting that “[d]iscovery is not favored in lawsuits under the
FOIA”). Discovery is only appropriate when it appears an agency has not undertaken an
adequate search for responsive documents, Schrecker, 217 F. Supp. 2d at 35, or, when necessary,
to determine the applicability of FOIA disclosure exemptions, see Miscavige v. Internal Revenue
Serv., 2 F.3d 366, 369 (11th Cir. 1993); Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978)
(holding that the district court may require in camera review to determine whether a disclosure
exemption applies); Kay v. Fed. Commc’ns Comm’n, 976 F. Supp. 23, 33 (D.D.C. 1997).
Discovery is not warranted “when it appears that discovery would only . . . afford[] [the plaintiff]
an opportunity to pursue a bare hope of falling upon something that might impugn the
affidavits.” Military Audit Project v. Casey, 656 F.2d 724, 751-52 (D.C. Cir. 1981) (internal
quotations omitted); see also Broaddrick v. Executive Office of the President, 139 F. Supp. 2d
55, 63-64 (D.D.C. 2001). If an agency’s affidavits regarding its search are sufficient, the judge
has broad discretion to forgo discovery. Meeropol v. Meese, 790 F.2d 942, 960-61 (D.C. Cir.
1986); see also Schleeper v. Dep’t of Justice, 1999 WL 325515, at *1 (D.C. Cir. Apr. 30, 1999)
(per curiam) (affirming the lower court’s denial of discovery). Even if an agency’s affidavits
regarding its search are deficient, courts generally do not grant discovery but instead direct the
agency to supplement its affidavits. Judicial Watch, 185 F. Supp. 2d at 65.
3 B. Discovery is Unwarranted at this Time
As this court noted in a prior opinion, see Mem. Op. (Aug. 3, 2004), in the exceptional
case in which a court permits discovery in a FOIA action, such discovery should only occur after
the government has moved for summary judgment, see, e.g., Miscavige, 2 F.3d at 369 (holding
that a plaintiff’s request for discovery is inappropriate until the government has had an
opportunity to provide the court with the information necessary to make a decision on the
applicable FOIA exemptions); Krieger v. Fadely, 199 F.R.D. 10, 14 (D.D.C. 2001) (stating that
discovery in FOIA cases should “ordinarily occur after the government moves for summary
judgment”); Murphy v. FBI, 490 F. Supp. 1134, 1136 (D.D.C. 1980) (asserting that whether a
case “warrants discovery is a question of fact that can only be determined after the defendants
file their dispositive motion and accompanying affidavits”). Postponing discovery until 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.
See Murphy, 490 F. Supp. at 1137 (noting that requiring the government to submit its dispositive
motion before ordering discovery provides information as to whether discovery is necessary); see
also Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 371 (D.D.C. 1980) (asserting that courts
have ample authority to set limitations to protect agencies from oppressive discovery); Judicial
Watch, Inc., 185 F. Supp. 2d at 65 (stating that when an agency’s supporting documents are
insufficient to grant summary judgment, the court may order limited discovery but will typically
only require the agency to supplement its supporting declarations). If, after the government has
submitted its motion for summary judgment, the plaintiff is unable to oppose the motion without
further discovery, he may file a Rule 56(f) motion. FED. R. CIV. P. 56(f) (providing that a court
may stay a summary judgment motion and order discovery “if a party opposing the motion
4 shows by affidavit that, for specified reasons, it cannot present facts essential to justify its
opposition”); see, e.g., Schaffer v. Kissinger, 505 F.2d 389, 390-91 (D.C. Cir. 1974); Am. Broad.
Co. v. U.S. Info. Agency, 599 F. Supp. 765, 768 (D.D.C. 1984).
In this case, the plaintiff’s motion for discovery seeks information related to (1) whether
the design specifications sought were maintained as a trade secret and (2) whether the Fairchild
Corporation is truly the record owner of the F-45 certificate. Pl.’s Mot. at 5. The plaintiff claims
that without this information, he will be unable to effectively oppose a potential motion for
summary judgment made by the defendants. Id. at 6. The appropriate mechanism for the
plaintiff to seek such relief, however, is through a Rule 56(f) motion filed after the government
submits its renewed motion for summary judgment.1 See, e.g ., Schaffer, 505 F.2d at 390-91;
Am. Broad. Co., 599 F. Supp. at 768. At 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.2 Accordingly, the court denies the plaintiff’s motion without prejudice to
reconsideration of a renewed motion filed after the defendants have moved for summary
judgment by the date specified in the accompanying Order.
1 In their opposition to the plaintiff’s motion for discovery, the defendants state that they will renew their motion for summary judgment but will not pursue the claim preclusion issue. Defs.’ Opp’n at 5. 2 The court is aware that the defendants have previously submitted a motion for summary judgment and supporting documents. Because, however, the court resolved the previous motion solely on claim preclusion grounds, the court declined to address the exemption issue and did not consider the substance of the defendants’ argument. See generally Taylor v. Blakey, 2005 WL 6003553 (D.D.C. May 12, 2005), aff’d, 490 F.3d 965, 977 (D.C. Cir. 2007), vacated and remanded sub. nom. Taylor v. Sturgell, 128 S. Ct. 2161 (2008). Furthermore, the defendants’ renewed motion may shed additional light on the exemption issue.
5 IV. CONCLUSION
For the foregoing reasons, the court denies the plaintiff’s renewed motion for discovery
without prejudice to reconsideration of a renewed motion filed after the defendants have moved
for summary judgment. An Order consistent with this Memorandum Opinion is separately and
contemporaneously issued this 15th day of December, 2009.
RICARDO M. URBINA United States District Judge