Trentadue v. FBI, et al

Filing 3

[9612138] Docketing statement filed by Federal Bureau Of Investigation and Federal Bureau Of Investigation's Oklahoma City Field Office. Served on 11/14/2008. Manner of Service: US mail.

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
DOCKETING STATEMENT
Trentadue v. FBI

Case Name:

Appeal No. (if available) ¯

08-4207

Court/Agency Appeal From:

D. Utah

Court/Agency Docket No.:

04-cv-772

DistrictJudge:

Kimball

Party orPartiesfilingNoticeofAppeal~etition: Federal Bureau of Investigation;
Federal Bureau of Investigation, Oklahoma City Field Office

I.

TIMELINESS OF APPEAL OR PETITION FOR REVIEW
No

APPEAL FROM DISTRICT COURT
1.

Date notice of appeal filed:

November 4, 2008

a.

b°

2.

Was a motion filed for an extension of time to file the notice
of appeal? If so, give the filing date of the motion, the date of
any order disposing of the motion, and the deadline for filing
notice of appeal: n/a

Is the United States or an officer or an agency of the United
States a party to this appeal?
Yes

Authority fixing time limit for filing notice of appeal:

Fed. R. App. 4 (a)(1)(A)_
Fed. R. App. 4 (a)(1)(B) xx
Fed. R. App. 4 (a)(2)
Fed. R. App. 4 (a)(3)
Fed. R. App. 4 (a)(4)
Fed. R. App. 4 (a)(5)
Other:

3.

Fed. R. App. 4(a)(6)_
Fed. R. App. 4(b)(1) __
Fed. R. App. 4(b)(3)_
Fed. R. App. 4(b)(4)_
Fed. R. App, 4(c)

Date final judgment or order to be reviewed was filed and entered

on the district court docket:
Does the judgment or order to be reviewed dispose of all claims by
and against all parties? See Fed.. R. Civ. P. 54(b).
Yes

(If the order being appealed is not final, please answer the
following questions in this section;)
If not, did district court direct entry of judgment in
accordance with Fed. R. Civ. P. 54(b)? When was this done?

No

C°

5.

If the judgment or order is not a final disposition, is it
appealable under 28 U.S.C. § 1292(a)? Yes
If none of the above applies, what is the specific statutory
basis for determining that the judgment or order is
appealable?

Tolling Motions. See Fed. R. App. P. 4(a)(4)(A); 4(b)(3)(A).
Give the filing date of any motion under Fed. R. Civ. P. 50(b),
52(b), 59, 60, including any motion for reconsideration, and
in a criminal appeal any motion for judgment of acquittal, for
arrest of judgment or for new trial, filed in the district court:
Motion for Reconsideration filed 10/31/2007.
Has an order been entered by the district court disposing of
that motion, and, if so, when? The mot±on was den±ed
on ~/25/2008.

Bankruptcy Appeals. (To be completed only in appeals from a
judgment, order or decree of a district court in a banlcruptcy case
or from an order of the Bankruptcy Appellate Panel.)

Are there assets of the debtor subject to administration by a district or
bankruptcy court?
D-2 Docketing Statement 07/07

Page 2

Please state the approximate amount of such assets, if lcnown.

No

REVIEW OF AGENCY ORDER (To be completed only in connection
with petitions for review or applications for enforcement filed directly with
the Court of Appeals.)
1.

Date petition for review was filed:

2.

Date of the order to be reviewed:

3.

Specify the statute or other authority granting the court of appeals
jurisdiction to review the order:
Specify the time limit for filing the petition (cite specific statutory
section or other authority):

APPEAL OF TAX COURT DECISION
Date notice of appeal was filed:
(If notice was filed by mail, attach proof of postmark.)
Time limit for filing notice of appeal:
o

°

Date of entry of decision appealed:
Was a timely motion to vacate or revise a decision made under the
Tax Court’s Rules of Practice, and if so, when? See Fed. R. App. P.
13(a)

D-2 Docketing Statement 07/07

Page 3

II. LIST ALL RELATED OR PRIOR RELATED APPEALS IN THIS COURT
WITH APPROPRIATE CITATION(S). If none, please so state.
This matter has not been subject to appeal in this Court.

III.

GIVE A BRIEF DESCRIPTION OF NATURE OF ACTION AND RESULT
BELOW.
Plaintiff requested certain records from the FBI pursuant
to the Freedom of Information Act. After the FBI satisfied
the FOIA request, plaintiffs sought to depose two federal
inmates in an effort to demonstrate that the FBI’s search
for responsive documents was inadequate. The district court
granted that request and, at the same time, closed the
underlying case.

IV.

ISSUES RAISED ON APPEAL.
Whether the district court erred in ordering, in connection
with this FOIA case against the FBI, the videotaped depositions
of two high-profile federal inmates..

D-2 Docketing Statement07/07

Page 4

V.

ADDITIONAL INFORMATION IN CRIMINAL APPEALS.
No

Does this appeal involve review under 18. U.S.C. § 3742(a) or (b) of the
sentence imposed?

B°

If the answer to question in A is yes, does the defendant also challenge the
iudgment of conviction?

Co

Describe the sentence imposed.

D°

Was the sentence imposed after ff plea of guilty?

go

If the answer to question D is yes, did the plea agreement include a waiver
of appeal and/or collateral
challenges?

Fo

Is defendant on probation or at liberty pending appeal?

G°

If the defendant is incarcerated, what is the anticipated release date if the
judgment of conviction is fully
executed?

NOTE:

In the event expedited review is requested, the
defendant shall consider whether a transcript of
any portion of the trial court proceedings is
necessary for the appeal. Necessary transcripts
must be ordered at the time of appeal by
completing and delivering the transcript order
form to the clerk of the district court when a
notice of appeal is filed. Defendant/appellant
must refrain from ordering any unnecessary
transcript as this will delay the appeal. If the
court orders this appeal expedited, it will set a
schedule for preparation of necessary transcripts,
for designation and preparation of the record on
appeal, and for filing briefs. If issues other than
sentencing are raised by this appeal, the court will
decide whether bifurcation is desirable.

D-2 Docketing Statement 07/07

Page 5

VI.

INDICATE WHETHER ORAL ARGUMENT IS DESIRED IN THIS
APPEAL. If so, please state why.
The United States believes the district court’s error
is sufficiently clear that oral argument would be
unnecessary to resolve this appea!. The government,
however, stands ready to present argument if necessary.

VII.

ATTORNEY FILING DOCKETING STATEMENT:

Name: Nicholas Bagley

Telephone:

(202)

514-2498

Finn: United States Department of Justice
EmailAddress: [e-mail]

Address:

950 Pennsylvania Avenue, Room 7226
Washington, DC 20530

PLEASE IDENTIFY ON WHOSE BEHALF THE DOCKETING STATEMENT IS
FILED:
A.

[k-’l Appellant
[’-1

Petitioner

[-1

Cross-Appellant

D-2 Docketing Statement 07/07

Page 6

B.

PLEASE IDENTIFY WHETHER THE FILING COUNSEL IS
[[]

Retained Attorney

[[]

Court-Appointed
Employed by a governxnent entity
(please specify Departzment: of ~Tustz±ce

[--]

Employed by the Office of the Federal Public Defender.

11/14/2008

D~e

NOTE:

A copy of the court or agency docket sheet, the final judgment.
or order appealed from, any pertinent findings and conclusions,
opinions, or orders, any motion filed under Fed. R. Civ. P.
50(b), 52(b), 59, or 60, including any motion for
reconsideration, for judgment of acquittal, for arrest of
judgment, or for new trial, and the dispositive order(s), any
motion for extension of time to file notice of appeal and the
dispositive order, and the notice of appeal or petition for review
must be attached to the Docketing Statement, except as
otherwise provided in Section I of the instructions.
The Docketing Statement must be e-filed with the Clerk care of
[e-mail]. In addition, within two
business days counsel must forward one hard copy of the
statement, with attacbanents, to the court.
This Docketing Statement must be accompanied by proof of
service.
The following Certificate of Service may be used.

D-2 Docketing Statement 07/07

Page 7

CERTIFICATE OF SERVICE

Nicholas Bagley
hereby certify that on
[appellant/petitioner or attorney therefor]
November 14, 2008

I sent [or emailed with permission] a copy of the

foregoing Docketing Statement,
[date]
to:

Jesse Trentadue

, care of

Federal Express

[counsel for/or appellee/respondent]
8 East Broadway, Suite 200

Salt Lake City, UT 84111

., the last lcnown address,
by w~y of United States mail or courier, or email address if service is via email.

11/14/08
Dated signed

[Printed name and address of person completing service]

D-2 Docketing Statement 07/07

Page 8

APPEAL, CLOSED, PROSE

Electronic Case Filing System
District of Utah (Central)
CIVIL DOCKET FOR CASE #: 2:04-cv-00772-DAK

Trentadue v. FBI, et al
Assigned to: Judge Dale A. Kimball
Demand: $0
Case in other court: Tenth Circuit, 08-04207
Cause: 05:0552 Freedom of Information Act

Date Filed: 08/20/2004
Date Terminated: 09/26/2008
Jury Demand: None
Nature of Suit: 895 Freedom of Information Act
Jurisdiction: U.S. Government Defendant

Plaintiff
Jesse C. Trentadue

represented by Jesse C Trentadue
SUITTER AXLAND
8 E BROADWAY STE 200
SALT LAKE CITY, UT 84111
[phone]
Email: [e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

V.
Defendant
Federal Bureau of Investigation

represented by Carlie Christensen
US ATTORNEY'S OFFICE (UT)
SALT LAKE CITY, UT 00000
[phone]
Email: [e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Elbert Lin
US DEPT OF JUSTICE
FEDERAL PROGRAMS BRANCH
20 MASSACHUSETTS AVE NW RM 7217
WASHINGTON, DC 20530
[phone]
TERMINATED: 04/05/2007
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Defendant
Federal Bureau of Investigation's Oklahoma
City Field Office

represented by Carlie Christensen
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Elbert Lin
(See above for address)
TERMINATED: 04/05/2007
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

08/20/2004

1

Complaint filed, assigned to Judge Dee Benson Receipt no.: 142324 (kvs) (Entered: 08/23/2004)

08/20/2004

2

Return of summons executed as to FBI, FBI OK Cty Field c/o Laurie Coles on 8/20/04 Answer due
on 9/9/04 for FBI OK Cty Field, for FBI (kvs) (Entered: 08/23/2004)

08/25/2004
08/25/2004

Memo of recusal of Judge Dee Benson (kvs) (Entered: 08/26/2004)
3

08/26/2004

Amended complaint by Jesse C. Trentadue . Amends [1-1] complaint (kvs) (Entered: 08/26/2004)
Case reassigned to Judge Dale A. Kimball (kvs) (Entered: 08/26/2004)

08/26/2004

4

NTC of recusal of Judge Benson and reassignment to Judge Kimball. cc: atty (blk) (Entered:
08/26/2004)

09/20/2004

5

Answer by FBI, FBI OK Cty Field to amended complaint (blk) (Entered: 09/21/2004)

09/21/2004

Clerk's mailing of certificate of acknowledgment of alternative dispute resolution option. Mailed,
faxed or emailed to plaintiff Jesse C. Trentadue, defendant FBI, defendant FBI OK Cty Field (blk)
(Entered: 09/21/2004)

09/23/2004

6

Magistrate Notice of Hearing Initial Pretrial Conference set for 1:30 12/1/04 To be held before Judge
Nuffer cc:atty ( Ntc generated by: clerk) (blk) (Entered: 09/23/2004)

10/15/2004

7

Notice of Motion to Consolidate filed in 2:03cv946-BSJ by Jesse C. Trentadue. (blk) (Entered:
10/18/2004)

10/20/2004

8

Motion by Jesse C. Trentadue for partial summary judgment (blk) (Entered: 10/20/2004)

10/20/2004

8

Memorandum by Jesse C. Trentadue in support of [8-1] motion for partial summary judgment (blk)
(Entered: 10/20/2004)

10/20/2004

9

Second Declaration of Jesse C. Trentadue Re: [8-1] support memorandum, [8-1] motion for partial
summary judgment (blk) (Entered: 10/20/2004)

10/27/2004

10

Certificate of election filed by plaintiff Jesse C. Trentadue Refer to: Litigation (blk) (Entered:
10/28/2004)

11/17/2004

11

Notice reminder of Attorneys' Planning Meeting Report due five days from receipt of this notice re:
Initial Pretrial Conference 1:30 12/1/04 before Judge DON, cc:attys (ce) (Entered: 11/17/2004)

11/19/2004

12

Stipulation by Jesse C. Trentadue to vacate Courts Order/Notice [11-1] requiring the parties to file
Atty Planning Meeting Report and Scheduling Order and to vacated the Initial Pretrial Conference
set for 12/1/04 (blk) (Entered: 11/19/2004)

11/22/2004

13

Memorandum by FBI, FBI OK Cty Field in opposition to [8-1] motion for partial summary
judgment (blk) (Entered: 11/23/2004)

11/22/2004

14

Motion by FBI, FBI OK Cty Field for summary judgment (blk) (Entered: 11/23/2004)

11/22/2004

13

Memorandum by FBI, FBI OK Cty Field in support of [14-1] motion for summary judgment (blk)
(Entered: 11/23/2004)

11/22/2004

15

Order granting [12-1] stipulation motion to vacate Courts Order/Notice [11-1] requiring the parties
to file Atty Planning Meeting Report and Scheduling Order and to vacate the Initial Pretrial
Conference set for 12/1/04, terminated deadlines signed by Judge David Nuffer , 11/22/04 cc:atty
(blk) Modified on 11/24/2004 (Entered: 11/23/2004)

11/23/2004

18

Reply by Jesse C. Trentadue to response to [8-1] motion for partial summary judgment (tsh)
Modified on 12/01/2004 (Entered: 11/29/2004)

11/29/2004

16

Motion by Jesse C. Trentadue to strike FBI Dfts' Statement of Undisputed Facts (blk) (Entered:
11/30/2004)

11/29/2004

16

Memorandum by Jesse C. Trentadue in support of [16-1] motion to strike FBI Dfts' Statement of
Undisputed Facts (blk) (Entered: 11/30/2004)

11/30/2004

17

Memorandum by Jesse C. Trentadue in opposition to [14-1] motion for summary judgment (blk)
(Entered: 12/01/2004)

11/30/2004

17

Motion by Jesse C. Trentadue to continue pending discovery (blk) (Entered: 12/01/2004)

12/09/2004

19

Notice of Hearing filed : Motion hearing set for 3:00 2/24/05 for [16-1] motion to strike FBI Dfts'
Statement of Undisputed Facts, set for 3:00 2/24/05 for [14-1] motion for summary judgment, set for
3:00 2/24/05 for [8-1] motion for partial summary judgment To be held before Judge DAK cc:atty
( Ntc generated by: DAK's crtrm dep) (tsh) (Entered: 12/09/2004)

12/27/2004

20

Motion by Jesse C. Trentadue to supplement the record (blk) (Entered: 12/28/2004)

12/27/2004

20

Memorandum by Jesse C. Trentadue in support of [20-1] motion to supplement the record (blk)
(Entered: 12/28/2004)

01/04/2005

21

Reply by FBI, FBI OK Cty Field to response to [14-1] motion for summary judgment (blk) (Entered:
01/05/2005)

01/04/2005

21

Memorandum by FBI, FBI OK Cty Field in opposition to [17-1] motion to continue pending
discovery, [16-1] motion to strike FBI Dfts' Statement of Undisputed Facts (blk) (Entered:
01/05/2005)

01/13/2005

22

Reply by Jesse C. Trentadue to response to [17-1] motion to continue pending discovery (blk)
(Entered: 01/14/2005)

01/13/2005

23

Third Declaration of Jesse C. Trentadue Re: [17-1] motion to continue pending discovery (blk)
(Entered: 01/14/2005)

02/10/2005

24

Declaration of Emanuel (Manny) Johnson Jr. (tsh) (Entered: 02/10/2005)

02/14/2005

25

Second Motion by Jesse C. Trentadue to supplement the record (blk) (Entered: 02/15/2005)

02/16/2005

26

Fourth Declaration of Jesse C. Trentadue Re: [14-1] motion for summary judgment (blk) (Entered:
02/17/2005)

02/17/2005

27

Second Declaration of David M. Hardy (blk) (Entered: 02/18/2005)

02/17/2005

28

Response by FBI, FBI OK Cty Field to [25-1] motion to supplement the record, [20-1] motion to
supplement the record (blk) (Entered: 02/18/2005)

02/21/2005

29

Reply by Jesse C. Trentadue to response to [25-1] motion to supplement the record (blk) (Entered:
02/22/2005)

02/25/2005

30

Minute entry: Motion hearing held for [17-1] motion to continue pending discovery, held for [14-1]
motion for summary judgment, held for [8-1] motion for partial summary judgment ; Crt granting
[25-1] motion to supplement the record, granting [20-1] motion to supplement the record, denying
[16-1] motion to strike FBI Dfts' Statement of Undisputed Facts; [17-1] motion to continue pending
discovery taken under advisement, [14-1] motion for summary judgment taken under advisement,
[8-1] motion for partial summary judgment taken under advisement ; Judge: DAK Court Reporter:
Kelly Hicken Court Deputy: Kim Jones (kj) (Entered: 02/25/2005)

05/05/2005

31

ORDER granting 8 Motion for Partial Summary Judgment, denying 14 Motion for Summary
Judgment, finding as moot 17 Motion to Continue . Signed by Judge Dale A. Kimball on 5/5/05.
(awm, ) (Entered: 05/05/2005)

05/19/2005

32

MOTION to Amend 31 Order on Motion for Partial Summary Judgment, Order on Motion for
Summary Judgment, Order on Motion to Continue, or alternatively, MOTION for relief from order
re 31 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment,
Order on Motion to Continue filed by Defendants Federal Bureau of Investigation, Federal Bureau
of Investigation's Oklahoma City Field Office. (blk, ) (Entered: 05/20/2005)

05/19/2005

33

MEMORANDUM in Support re 32 MOTION to Amend/Correct 31 Order on Motion for Partial
Summary Judgment, Order on Motion for Summary Judgment, Order on Motion to Continue
MOTION for relief from order re 31 Order on Motion for Partial Summary Judgment, Order on
Motion for Summary Judgment, Order on Motion to Continue MOTION for relief from order re 31
Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment, Order on
Motion to Continue filed by Defendants Federal Bureau of Investigation, Federal Bureau of
Investigation's Oklahoma City Field Office. (blk, ) (Entered: 05/20/2005)

05/27/2005

34

MOTION to Stay pending resolution of motion to reconsider and any subsequent appeal re 31 Order
on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment, Order on
Motion to Continue filed by Defendants Federal Bureau of Investigation, Federal Bureau of
Investigation's Oklahoma City Field Office. (blk, ) (Entered: 05/31/2005)

05/27/2005

35

MEMORANDUM in Support re 34 MOTION to Stay re 31 Order on Motion for Partial Summary
Judgment, Order on Motion for Summary Judgment, Order on Motion to Continue filed by
Defendants Federal Bureau of Investigation, Federal Bureau of Investigation's Oklahoma City Field
Office. (blk, ) (Entered: 05/31/2005)

05/31/2005

36

MOTION to Strike and for finding of civil contempt re: 32 MOTION to Amend/Correct 31 Order on
Motion for Partial Summary Judgment, Order on Motion for Summary Judgment, Order on Motion
to Continue MOTION for relief from order re 31 Order on Motion for Partial Summary Judgment,
Order on Motion for Summary Judgment, Order on Motion to Continue MOTION for relief from
order re 31 Order on Motion for Partial Summary Judgment, Order on Motion for Summary
Judgment, Order on Motion to Continue, 33 Memorandum in Support of Motion,, filed by Plaintiff
Jesse C. Trentadue. (blk, ) (Entered: 06/01/2005)

05/31/2005

37

MEMORANDUM in Support re 36 MOTION to Strike 32 MOTION to Amend/Correct 31 Order on
Motion for Partial Summary Judgment, Order on Motion for Summary Judgment, Order on Motion
to Continue MOTION for relief from order re 31 Order on Motion for Partial Summary Judgment,
Order filed by Plaintiff Jesse C. Trentadue. (blk, ) (Entered: 06/01/2005)

05/31/2005

38

5th DECLARATION of Jesse C. Trentadue re 36 MOTION to Strike 32 MOTION to
Amend/Correct 31 Order on Motion for Partial Summary Judgment, Order on Motion for Summary
Judgment, Order on Motion to Continue MOTION for relief from order re 31 Order on Motion for
Partial Summary Judgment, Order filed by Jesse C. Trentadue. (blk, ) (Entered: 06/01/2005)

05/31/2005

39

DECLARATION of Emmanuel (Manny) Johnson, Jr. re 36 MOTION to Strike 32 MOTION to
Amend/Correct 31 Order on Motion for Partial Summary Judgment, Order on Motion for Summary
Judgment, Order on Motion to Continue MOTION for relief from order re 31 Order on Motion for
Partial Summary Judgment, Order filed by Jesse C. Trentadue. (blk, ) (Entered: 06/01/2005)

06/06/2005

40

ORDER granting in part and denying in part 34 Motion to Stay. Signed by Judge Dale A. Kimball
on 6/6/05. (awm, ) (Entered: 06/06/2005)

06/08/2005

41

STIPULATION to Entry of a Stay Order filed by Jesse C. Trentadue. (blk, ) (Entered: 06/10/2005)

06/09/2005

45

REPLY to Response to Motion re 32 MOTION to Amend/Correct 31 Order on Motion for Partial
Summary Judgment, Order on Motion for Summary Judgment, Order on Motion to Continue
MOTION for relief from order re 31 Order on Motion for Partial Summary Judgment, Order on
Motion for Summary Judgment, Order on Motion to Continue MOTION for relief from order re 31
Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment, Order on
Motion to Continue, 36 AND OPPOSITION TO MOTION to Strike 32 MOTION to Amend/Correct
31 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment, Order
on Motion to Continue MOTION for relief from order re 31 Order on Motion for Partial Summary
Judgment, Order filed by Defendants Federal Bureau of Investigation, Federal Bureau of
Investigation's Oklahoma City Field Office. (blk, ) (Entered: 06/15/2005)

06/10/2005

42

MOTION for Extension of Time to file reply memorandum, MOTION for Leave to File corrected
memorandum filed by Defendants Federal Bureau of Investigation, Federal Bureau of Investigation's
Oklahoma City Field Office. (blk, ) (Entered: 06/14/2005)

06/10/2005

44

CORRECTED REPLY to Response to Motion re 32 MOTION to Amend/Correct 31 Order on

Motion for Partial Summary Judgment, Order on Motion for Summary Judgment, Order on Motion
to Continue MOTION for relief from order re 31 Order on Motion for Partial Summary Judgment,
Order on Motion for Summary Judgment, Order on Motion to Continue MOTION for relief from
order re 31 Order on Motion for Partial Summary Judgment, Order on Motion for Summary
Judgment, Order on Motion to Continue filed by Defendants Federal Bureau of Investigation,
Federal Bureau of Investigation's Oklahoma City Field Office. (blk, ) Modified on 6/15/2005
CORRECTS DOCUMENT 45 (blk, ). (Entered: 06/15/2005)
06/13/2005

43

ORDER granting 42 Motion for 1-day Extension of Time to file reply memo, granting 42 Motion for
Leave to File corrected memorandum . Signed by Judge Dale A. Kimball on 6/13/05. (blk, )
(Entered: 06/14/2005)

06/15/2005

46

SECOND MOTION to Strike 27 Declaration of David M. Hardy and Reply Memo in Support of
Motion to Reconsider filed by Plaintiff Jesse C. Trentadue. (blk, ) (Entered: 06/15/2005)

06/15/2005

47

MEMORANDUM in Support re 46 MOTION to Strike 27 Declaration filed by Plaintiff Jesse C.
Trentadue. (blk, ) (Entered: 06/15/2005)

06/15/2005

48

MEMORANDUM in Opposition re 36 MOTION to Strike 32 MOTION to Amend/Correct 31 Order
on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment, Order on
Motion to Continue MOTION for relief from order re 31 Order on Motion for Partial Summary
Judgment, Order filed by Defendants Federal Bureau of Investigation, Federal Bureau of
Investigation's Oklahoma City Field Office. (blk, ) (Entered: 06/20/2005)

06/17/2005

50

REPLY to Response to Motion re 36 MOTION to Strike 32 MOTION to Amend/Correct 31 Order
on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment, Order on
Motion to Continue MOTION for relief from order re 31 Order on Motion for Partial Summary
Judgment, Order filed by Plaintiff Jesse C. Trentadue. (blk, ) (Entered: 06/23/2005)

06/20/2005

49

Amended Second MOTION to Strike 44 Reply Memorandum/Reply to Response to Motion,,, 39
Declaration,, 27 Declaration filed by Plaintiff Jesse C. Trentadue. (blk, ) (Entered: 06/22/2005)

06/20/2005

51

REPLY to Response to Motion re Motion for Contempt 36 filed by Plaintiff Jesse C. Trentadue.
(blk, ) (Entered: 06/23/2005)

06/22/2005

52

NOTICE of Appearance by Elbert Lin on behalf of Federal Bureau of Investigation, Federal Bureau
of Investigation's Oklahoma City Field Office (kvs, ) (Entered: 06/23/2005)

06/24/2005

53

MOTION/ORDER granting motion for Admission Pro Hac Vice for of Elbert Lin for Federal
Bureau of Investigation and Federal Bureau of Investigation's Oklahoma City Field Office.
Attorneys admitted pro hac vice may download a copy of the District of Utah's local rules from
court's web site at http://www.utd.uscourts.gov. Signed by Judge Dale A. Kimball on 6/23/05. (blk, )
(Entered: 06/27/2005)

06/30/2005

54

MOTION for Extension of Time to file response to amd second motion to strike filed by Defendants
Federal Bureau of Investigation, Federal Bureau of Investigation's Oklahoma City Field Office.
(blk, ) (Entered: 06/30/2005)

06/30/2005

55

ORDER granting 54 Motion for Extension of Time. Signed by Judge Dale A. Kimball on 6/30/05
(alt) (Entered: 07/05/2005)

07/08/2005

56

MEMORANDUM in Opposition re 49 MOTION to Strike 44 Reply Memorandum/Reply to
Response to Motion,,, 39 Declaration,, 27 Declaration filed by Defendants Federal Bureau of
Investigation, Federal Bureau of Investigation's Oklahoma City Field Office. (blk, ) (Entered:
07/18/2005)

07/14/2005

57

REPLY to Response to Motion re 49 MOTION to Strike 44 Reply Memorandum/Reply to Response
to Motion,,, 39 Declaration,, 27 Declaration filed by Plaintiff Jesse C. Trentadue. (blk, ) (Entered:
07/18/2005)

07/26/2005

58

NOTICE of Release of Documents to Plaintiff by Federal Bureau of Investigation, Federal Bureau of
Investigation's Oklahoma City Field Office (blk, ) (Entered: 07/28/2005)

07/28/2005

59

RESPONSE re 58 Notice (Other) filed by Plaintiff Jesse C. Trentadue. (blk, ) (Entered: 07/29/2005)

08/05/2005

60

RESPONSE/Reply re 59 Response to Notice 58 Notice (Other) filed by Defendants Federal Bureau
of Investigation, Federal Bureau of Investigation's Oklahoma City Field Office. (blk, ) (Entered:
08/05/2005)

08/17/2005

61

ORDER Setting Hearing on All Pending Motions: Motion 36 MOTION to Strike 32 MOTION to
Amend/Correct 31 Order on Motion for Partial Summary Judgment, Order on Motion for Summary
Judgment, Order on Motion to Continue MOTION for relief from order re 31 Order on Motion for
Partial Summary Judgment, Order, 46 MOTION to Strike 27 Declaration, 32 MOTION to
Amend/Correct 31 Order on Motion for Partial Summary Judgment, Order on Motion for Summary
Judgment, Order on Motion to Continue MOTION for relief from order re 31 Order on Motion for
Partial Summary Judgment, Order on Motion for Summary Judgment, Order on Motion to Continue
MOTION for relief from order re 31 Order on Motion for Partial Summary Judgment, Order on
Motion for Summary Judgment, Order on Motion to Continue, 49 MOTION to Strike 44 Reply
Memorandum/Reply to Response to Motion,,, 39 Declaration,, 27 Declaration: Motion Hearing set
for 10/12/2005 03:00 PM in Room 220 before Judge Dale A. Kimball. (NOTE: See order for all
instructions to counsel). Signed by Judge Dale A. Kimball on 8/17/05. (blk, ) (Entered: 08/17/2005)

08/25/2005

62

3rd MOTION to supplement the record filed by Plaintiff Jesse C. Trentadue. (blk, ) (Entered:
08/26/2005)

09/01/2005

63

REQUEST for Clarification of the 8/17/05 Order re 61 Order Setting Hearing on Motion,,,, filed by
Plaintiff Jesse C. Trentadue. (blk, ) (Entered: 09/02/2005)

09/12/2005

64

RESPONSE re 63 Brief, filed by Defendants Federal Bureau of Investigation, Federal Bureau of
Investigation's Oklahoma City Field Office. (blk, ) (Entered: 09/15/2005)

09/15/2005

65

Reply Memorandum re 63 Clarification Brief filed by Plaintiff Jesse C. Trentadue. (blk, ) (Entered:
09/19/2005)

09/15/2005

66

6th DECLARATION of Jesse C. Trentadue filed by Jesse C. Trentadue. (blk, ) (Entered:
09/19/2005)

10/04/2005

67

OBJECTIONS to Continuance of 10/12/05 hearing filed by Plaintiff Jesse C. Trentadue. (blk, )
(Entered: 10/04/2005)

10/04/2005

68

MOTION to Continue Hearing Set for 10/12/05 filed by Defendants Federal Bureau of
Investigation, Federal Bureau of Investigation's Oklahoma City Field Office. (blk, ) (Entered:
10/06/2005)

10/05/2005

69

RESPONSE to Motion re 68 MOTION to Continue Hearing Set for 10/12/05 filed by Plaintiff Jesse
C. Trentadue. (blk, ) (Entered: 10/06/2005)

10/07/2005

70

ORDER granting 68 Motion to Continue hearing date of 10/12/05. Hearing reset for 11/10/05 at
3:00 p.m. before Judge Kimball. The FBI shall submit its legal memo and Vaughn declaration to the
crt no later than 10/17/05 and pla shall submit any reply memo in advance of the scheduled hearing
date . Signed by Judge Dale A. Kimball on 10/6/05. (ce, ) (Entered: 10/07/2005)

10/07/2005

71

NOTICE OF HEARING: (Notice generated by Chambers per order no. 70) Miscellaneous Hearing
set for 11/10/2005 03:00 PM in Room 220 before Judge Kimball re: Plaintiff's objection to 7/21/05
release of documents to plaintiff. Reset from 10/21/05 at 3:00 p.m. (ce, ) (Entered: 10/07/2005)

10/07/2005

72

NOTICE OF HEARING ON MOTION re: 36 MOTION to Strike 32 MOTION to Amend/Correct
31 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment, Order
on Motion to Continue MOTION for relief from order re 31 Order on Motion for Partial Summary
Judgment, Order, 46 MOTION to Strike 27 Declaration, 62 MOTION to supplement the record, 32
MOTION to Amend/Correct 31 Order on Motion for Partial Summary Judgment, Order on Motion
for Summary Judgment, Order on Motion to Continue MOTION for relief from order re 31 Order on
Motion for Partial Summary Judgment, Order on Motion for Summary Judgment, Order on Motion
to Continue MOTION for relief from order re 31 Order on Motion for Partial Summary Judgment,
Order on Motion for Summary Judgment, Order on Motion to Continue, 49 MOTION to Strike 44

Reply Memorandum/Reply to Response to Motion, 39 Declaration, 27 Declaration: Motion Hearing
set for 11/10/2005 03:00 PM in Room 220 before Judge Dale A. Kimball (reset from 10/12/05 at
3:00 pm). See order no. 70.(ce, ) (Entered: 10/07/2005)
10/17/2005

73

MOTION for Leave to File overlength memorandum in response to this court's order of 8/17/05 and
in response to plaintiff's objections to the FBI's release of documents on 7/21/05 filed by Defendants
Federal Bureau of Investigation, Federal Bureau of Investigation's Oklahoma City Field Office.
(ce, ) (Entered: 10/19/2005)

10/17/2005

74

Memorandum re response to court's 61 Order Setting Hearing on Motion, 60 Response/Objections to
the FBI's release of documents on 7/21/05 filed by Defendants Federal Bureau of Investigation,
Federal Bureau of Investigation's Oklahoma City Field Office. (Attachments: # 1 Exhibit A to the
FBI's Memo in Response to Plaintiff's Objections)(ce, ) (Entered: 10/19/2005)

10/18/2005

76

NOTICE of In Camera Submission of Documents for the court's review by Federal Bureau of
Investigation, Federal Bureau of Investigation's Oklahoma City Field Office (ce, ) (Entered:
10/21/2005)

10/21/2005

75

ORDER granting 73 Motion for Leave to File overlength memorandum in response to this court's
order of 8/17/05 and in response to plaintiff's objections to the FBI's release of documents on
7/21/05. Signed by Judge Dale A. Kimball on 10/18/05. (ce, ) (Entered: 10/21/2005)

11/04/2005

77

Reply to FBI Dfts response to Plas Objections to the Release of Redacted Documents in Response to
His FOIA Requests filed by Plaintiff Jesse C. Trentadue. (blk, ) Additional attachment(s) added on
11/7/2005 (rak, ). Modified on 11/7/2005 (rak, ) - original document seemed to be corrupted replaced with uncorrupted document. (Entered: 11/04/2005)

11/04/2005

78

EXHIBITS filed by Jesse C. Trentadue re 77 Reply. (Attachments: # Exhibits)(blk, ) Additional
attachment(s) added on 11/18/2005 (rak, ). Modified on 11/18/2005 attachment 1 appears to be
corrupted, replaced with uncorrupted document (rak, ). (Entered: 11/04/2005)

11/07/2005

79

Modification of Docket: Error: Original document appears to be corrupted. Correction: Replaced
with uncorrupted document. re 77 Response (NOT to motion),. (rak, ) (Entered: 11/07/2005)

11/07/2005

80

ERRATA to 77 Reply to Response re: Plas Objections Release of Redacted Documents filed by
Plaintiff Jesse C. Trentadue. (blk, ) (Entered: 11/07/2005)

11/14/2005

81

Minute Entry for proceedings held before Judge Dale A. Kimball : Motion Hearing held on
11/14/2005 re: 62 MOTION to supplement the record filed by Jesse C. Trentadue, 46 MOTION to
Strike 27 Declaration filed by Jesse C. Trentadue, 32 MOTION to Amend/Correct 31 Order on
Motion for Partial Summary Judgment, Order on Motion for Summary Judgment, Order on Motion
to Continue MOTION for relief from order re 31 Order on Motion for Partial Summary Judgment,
Order on Motion for Summary Judgment, Order on Motion to Continue MOTION for relief from
order re 31 Order on Motion for Partial Summary Judgment, Order on Motion for Summary
Judgment, Order on Motion to Continue filed by Federal Bureau of Investigation,, Federal Bureau of
Investigation's Oklahoma City Field Office, 49 MOTION to Strike 44 Reply Memorandum/Reply to
Response to Motion, 39 Declaration,, 27 Declaration filed by Jesse C. Trentadue, 36 MOTION to
Strike 32 MOTION to Amend/Correct 31 Order on Motion for Partial Summary Judgment, Order on
Motion for Summary Judgment, Order on Motion to Continue MOTION for relief from order re 31
Order on Motion for Partial Summary Judgment, Order filed by Jesse C. Trentadue. After hearing
the arguments of counsel, the Court took the motions under advisement.Attorney for Plaintiff: Jesse
Trentadue, Attorney for Defendant: Carlie Christensen & Joel Miller.(Court Reporter:Kelly Hicken.)
(kmj, ) (Entered: 11/14/2005)

12/20/2005

82

NOTICE OF FILING of Plaintiffs Supplementation of Record RE: Shawn Kenny filed by Plaintiff
Jesse C. Trentadue. (Note: a disk (cd) was filed in conjunction with this entitled Shawn Kenny court
TV November 2005, and it will be retained in the clerks office) (blk, ) (Entered: 12/22/2005)

01/13/2006

83

OBJECTIONS to Plaintiff's Supplementation of Record filed by Defendant Federal Bureau of
Investigation. (Christensen, Carlie) (Entered: 01/13/2006)

01/15/2006

84

RESPONSE re 83 Objections, filed by Plaintiff Jesse C. Trentadue. (blk, ) (Entered: 01/19/2006)

01/17/2006

85

Seventh DECLARATION of Jesse C. Trentadue filed by Jesse C. Trentadue. (blk, ) (Entered:
01/19/2006)

01/17/2006

86

DECLARATION of Leslie Blade filed by Jesse C. Trentadue. (blk, ) (Entered: 01/19/2006)

03/29/2006

87

ORDER granting in part and denying in part 32 FBI's Motion to Amend/Correct, denying 36
Plaintiff's Motion to Strike, denying 49 Plaintiff's Motion to Strike, granting 62 Plaintiff's Motion to
Supplement. See Order for specific details . Signed by Judge Dale A. Kimball on 3/29/06. (awm, )
(Entered: 03/29/2006)

03/30/2006

88

AMENDED MEMORANDUM DECISION AND ORDER. Signed by Judge Dale A. Kimball on
3/30/06. (awm, ) (Entered: 03/30/2006)

04/04/2006

89

Plaintiffs Rule 59(e) MOTION to Amend/Correct 88 Memorandum Decision filed by Plaintiff Jesse
C. Trentadue. (blk, ) (Entered: 04/05/2006)

04/04/2006

90

MEMORANDUM in Support re 89 MOTION to Amend/Correct 88 Memorandum Decision filed by
Plaintiff Jesse C. Trentadue. (blk, ) (Entered: 04/05/2006)

04/06/2006

91

AMENDED Rule 59(e) MOTION to Amend/Correct 88 Memorandum Decision filed by Plaintiff
Jesse C. Trentadue. (blk, ) (Entered: 04/07/2006)

04/06/2006

92

MEMORANDUM in Support re 91 Amended Rule 59(e) MOTION to Amend/Correct 88
Memorandum Decision filed by Plaintiff Jesse C. Trentadue. (blk, ) (Entered: 04/07/2006)

04/24/2006

93

OBJECTIONS to 92 Memorandum in Support of Motion filed by Defendants Federal Bureau of
Investigation, Federal Bureau of Investigation's Oklahoma City Field Office. (Christensen, Carlie)
(Entered: 04/24/2006)

05/01/2006

94

REPLY to Response to Motion re 89 MOTION to Amend/Correct 88 Memorandum Decision filed
by Plaintiff Jesse C. Trentadue. (blk, ) (Entered: 05/04/2006)

05/22/2006

95

ORDER denying 91 Motion to Amend/Correct . Signed by Judge Dale A. Kimball on 5/19/06.
(blk, ) (Entered: 05/22/2006)

06/02/2006

96

NOTICE of DOCUMENT SEARCH AND PRODUCTION PURSUANT TO COURT ORDER OF
MARCH 30, 2006 by Federal Bureau of Investigation, Federal Bureau of Investigation's Oklahoma
City Field Office (Attachments: # 1 Hardy Declaration# 2 Exhibit 8# 3 Exhibit 8b# 4 Exhibit 9# 5
Exhibit 9a# 6 Exhibit 12# 7 Exhibit 12a# 8 August 1996 Teletype)(Christensen, Carlie) (Entered:
06/02/2006)

02/16/2007

97

MOTION for Discovery filed by Plaintiff Jesse C. Trentadue. (Attachments: # 1 Exhibit A)
(Trentadue, Jesse) (Entered: 02/16/2007)

02/16/2007

98

MEMORANDUM in Support re 97 MOTION for Discovery filed by Plaintiff Jesse C. Trentadue.
(Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Trentadue, Jesse) (Entered: 02/16/2007)

02/16/2007

99

DECLARATION of David Paul Hammer filed by Jesse C. Trentadue. (blk) (Entered: 02/20/2007)

02/16/2007

100

DECLARATION of Terry Lynn Nichols filed by Jesse C. Trentadue. (blk) (Entered: 02/20/2007)

02/16/2007

101

**SEALED DOCUMENT** EXHIBITS A-G re 100 Declaration of Terry Lynn Nichols filed by
Plaintiff Jesse C. Trentadue. Clerks Note: Exhibits A-G have been sealed and entered on the docket
separately from the Declaration of Terry Lynn Nichols by the clerk due to protected information
contained therein, see DUCiv R 7-3. Some information included in the exhibits are dates of birth,
social security numbers and personal residential addresses of individuals. (blk) (Entered:
02/20/2007)

02/20/2007

102

NOTICE OF CONVENTIONAL FILING of Declaration of Terry Lynn Nichols and David Hammer
filed by Plaintiff Jesse C. Trentadue re 99 Declaration, 100 Declaration, 101 Sealed Document,
(Trentadue, Jesse) (Entered: 02/20/2007)

03/08/2007

103

MOTION for Extension of Time Ext of time to file memo in opposition to Plaintiff's Motion to
Conduct Discovery filed by Defendant Federal Bureau of Investigation. (Attachments: # 1)

(Christensen, Carlie) (Entered: 03/08/2007)
03/13/2007

104

ORDER granting 103 Motion for Extension of Time for FBI to file its response to plaintiff's Motion
to Conduct Discovery. Response due: 3/16/07. Signed by Judge Dale A. Kimball on 3/9/07. (blk)
(Entered: 03/13/2007)

03/16/2007

105

MOTION for Extension of Time Time to file memorandum in opposition to Plaintiff's Motion to
Conduct Discovery filed by Defendant Federal Bureau of Investigation. (Attachments: # 1)
(Christensen, Carlie) (Entered: 03/16/2007)

03/20/2007

106

ORDER granting 105 Motion for Extension of Time to respond to Plaintiff's Motion to Conduct
Discovery. Response due: 3/23/07. Signed by Judge Dale A. Kimball on 3/19/07. (blk) (Entered:
03/20/2007)

03/23/2007

107

MEMORANDUM in Opposition re 97 MOTION for Discovery filed by Defendant Federal Bureau
of Investigation. (Christensen, Carlie) (Entered: 03/23/2007)

04/01/2007

108

MOTION for Extension of Time to File Response/Reply as to 97 MOTION for Discovery filed by
Plaintiff Jesse C. Trentadue. (Attachments: # 1 Exhibit A - Proposed Order)(Trentadue, Jesse)
(Entered: 04/01/2007)

04/02/2007

109

ORDER Granting 108 Motion for Extension of Time until 4/20/07 for Plaintiff to File
Response/Reply re 97 MOTION for Discovery. Replies due by 4/20/2007. Signed by Judge Dale A.
Kimball on 4/2/07. (ce) (Entered: 04/02/2007)

04/04/2007

110

MOTION to Withdraw as Attorney (Elbert Lin) filed by Defendant Federal Bureau of Investigation.
(Christensen, Carlie) (Entered: 04/04/2007)

04/05/2007

111

ORDER granting 110 Motion to Withdraw as Attorney. Attorney Elbert Lin withdrawn from case
for FBI. Signed by Judge Dale A. Kimball on 4/5/07. (blk) (Entered: 04/05/2007)

04/16/2007

112

REPLY to Response to Motion re 97 MOTION for Discovery filed by Plaintiff Jesse C. Trentadue.
(Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7
Exhibit 7# 8 Exhibit 8)(Trentadue, Jesse) (Entered: 04/16/2007)

09/20/2007

113

MEMORANDUM DECISION granting 97 Motion for Discovery. Signed by Judge Dale A. Kimball
on 9/20/07. (jwt) (Entered: 09/21/2007)

10/31/2007

114

MOTION Motion to reconsider discovery order and request for oral argument filed by Defendant
Federal Bureau of Investigation. (Christensen, Carlie) (Entered: 10/31/2007)

10/31/2007

115

MEMORANDUM in Support re 114 MOTION Motion to reconsider discovery order and request for
oral argument filed by Defendant Federal Bureau of Investigation. (Attachments: # 1 Exhibit)
(Christensen, Carlie) (Entered: 10/31/2007)

11/05/2007

116

ENTRY ERROR - IMAGE FOR DOCUMENT WAS INCOMPLETE. COUNSEL WILL RE-FILE
MOTION. MOTION for Extension of Time to File Response/Reply as to 114 MOTION Motion to
reconsider discovery order and request for oral argument filed by Plaintiff Jesse C. Trentadue.
(Attachments: # 1 Text of Proposed Order)(Trentadue, Jesse) Modified on 11/5/2007 (jwt). (Entered:
11/05/2007)

11/05/2007

117

MOTION for Extension of Time to File Response/Reply as to 114 MOTION Motion to reconsider
discovery order and request for oral argument filed by Plaintiff Jesse C. Trentadue. (Attachments: #
1 Text of Proposed Order)(Trentadue, Jesse) (Entered: 11/05/2007)

11/06/2007

118

ORDER granting 117 Motion for Extension of Time to File Response/Reply re 114 MOTION to
reconsider discovery order and request for oral argument. Replies due by 12/3/2007. Signed by
Judge Dale A. Kimball on 11/06/07. (jwt) (Entered: 11/06/2007)

11/20/2007

119

DECLARATION of David Paul Hammer re 114 MOTION Motion to reconsider discovery order
and request for oral argument filed by Jesse C. Trentadue. (Attachments: # 1 Exhibit)(Trentadue,
Jesse) (Entered: 11/20/2007)

11/20/2007

120

DECLARATION of Ronald C. Travis re 114 MOTION Motion to reconsider discovery order and

request for oral argument filed by Jesse C. Trentadue. (Attachments: # 1 Exhibit a# 2 Exhibit B)
(Trentadue, Jesse) (Entered: 11/20/2007)
11/20/2007

121

DECLARATION of Jesse C. Trentadue re 114 MOTION Motion to reconsider discovery order and
request for oral argument filed by Jesse C. Trentadue. (Attachments: # 1 Exhibit A)(Trentadue,
Jesse) (Entered: 11/20/2007)

11/21/2007

122

DECLARATION of Wesley I. Purkey re 114 MOTION Motion to reconsider discovery order and
request for oral argument filed by Jesse C. Trentadue. (Attachments: # 1 Exhibit)(Trentadue, Jesse)
(Entered: 11/21/2007)

12/03/2007

123

MEMORANDUM in Opposition re 114 MOTION Motion to reconsider discovery order and request
for oral argument filed by Plaintiff Jesse C. Trentadue. (Attachments: # Exhibit 1)(Trentadue, Jesse)
Modified on 12/11/2007 removing attachment per 126 order (jwt). (Entered: 12/03/2007)

12/03/2007

124

ERRATA to 123 Memorandum in Opposition to Motion filed by Plaintiff Jesse C. Trentadue (to
replace Exhibit 1). (Attachments: # 1 Exhibit 1)(Trentadue, Jesse) (Entered: 12/03/2007)

12/03/2007

125

MOTION to Amend/Correct 123 Memorandum in Opposition to Motion (Remove Exhibit 1) filed by
Plaintiff Jesse C. Trentadue. (Attachments: # 1 Text of Proposed Order)(Trentadue, Jesse) (Entered:
12/03/2007)

12/10/2007

126

ORDER granting 125 Motion to Remove Exhibit 1 Attached to Doc. No. 123 From the Record.
Signed by Judge Dale A. Kimball on 12/10/07. (jwt) (Entered: 12/11/2007)

01/30/2008

127

REPLY to Response to Motion re 114 MOTION Motion to reconsider discovery order and request
for oral argument filed by Defendant Federal Bureau of Investigation. (Attachments: # 1 Declaration
of Harvey Church# 2 Declaration of Thomas B. Smith)(Christensen, Carlie) (Entered: 01/30/2008)

01/31/2008

128

NOTICE of SUPPLEMENTAL AUTHORITY by Jesse C. Trentadue re 114 MOTION Motion to
reconsider discovery order and request for oral argument (Attachments: # 1 Exhibit A)(Trentadue,
Jesse) (Entered: 01/31/2008)

04/03/2008

129

NOTICE of Release of Documents by Jesse C. Trentadue (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)
(Trentadue, Jesse) (Entered: 04/03/2008)

04/16/2008

130

OBJECTIONS to 128 Notice of Supplemental Authority filed by Defendants Federal Bureau of
Investigation, Federal Bureau of Investigation's Oklahoma City Field Office. (Christensen, Carlie)
(Entered: 04/16/2008)

04/17/2008

131

RESPONSE re 130 Objections, TO NOTICE OF RELEASE OF ADDITIONAL INFORMANT
DOCUMENTS filed by Plaintiff Jesse C. Trentadue. (Attachments: # 1 Exhibit 1)(Trentadue, Jesse)
(Entered: 04/17/2008)

09/25/2008

132

ORDER denying 114 Motion to reconsider discovery order and request for oral argument and
Overruling [130OBJECTIONS to 128 Notice of Supplemental Authority. The clerk of the court is
directed to close this case. Signed by Judge Dale A. Kimball on 9/25/08. (jwt) (Entered: 09/26/2008)

11/05/2008

133

NOTICE OF APPEAL as to 132 Order on Motion for Miscellaneous Relief, 113 Order on Motion
for Discovery, Memorandum Decision filed by Federal Bureau of Investigation. Appeals to the
USCA for the Tenth Circuit. No Filing Fee. (Christensen, Carlie) Modified on 11/12/2008-this
appeal has been sent to the Tenth Circuit not the Federal Circuit as previously stated in text (jmr).
(Entered: 11/05/2008)

11/06/2008

137

USCA Case Number Case Appealed to Tenth Circuit Case Number 08-4207 for 133 Notice of
Appeal, filed by Federal Bureau of Investigation. Transcript order form due 11/21/2008 for Carlie
Christensen. (jmr) (Entered: 11/12/2008)

11/07/2008

134

Transmission of Preliminary Record to USCA re 133 Notice of Appeal, (Main Document: Letter of
Transmission of Preliminary Record on Appeal; Attachments: # 1 Notice of Appeal, # 2 Order, # 3
Memorandum Decision, # 4 Docket Sheet)(ce) (Entered: 11/07/2008)

11/10/2008

135

MOTION Supplement Record filed by Plaintiff Jesse C. Trentadue. (Trentadue, Jesse) (Entered:

11/10/2008)
11/10/2008

136

MEMORANDUM in Support re 135 MOTION Supplement Record on Appeal filed by Plaintiff
Jesse C. Trentadue. (Trentadue, Jesse) (Entered: 11/10/2008)

PACER Service Center
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Docket Report Search Criteria: 2:04-cv-00772-DAK

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Case 2:04-cv-00772-DAK

Document 113

Filed 09/20/2007

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

JESSE C. TRENTADUE,
Plaintiff,
MEMORANDUM DECISION AND
ORDER

vs.
FEDERAL BUREAU OF
INVESTIGATION and FEDERAL
BUREAU OF INVESTIGATION,
OKLAHOMA CITY FIELD OFFICE,

Case No. 2:04CV772 DAK

Defendants.

This matter is before the court on Plaintiff Jesse C. Trentadue’s Motion to Conduct
Discovery. The court has carefully reviewed the written memoranda submitted by the parties.
Pursuant to local rule 7-1(f), the court has concluded that oral argument would not be helpful or
necessary, and thus the court will determine the motion on the basis of the written memoranda.
See DUCivR 7-1(f).
Plaintiff filed this action in August 2004, alleging that the FBI had failed to provide
certain documents that were responsive to his FOIA request. In the instant motion, Plaintiff
seeks an Order from the court allowing him to take–and videotape–the depositions of Terry Lynn
Nichols and David Paul Hammer. The FBI contends that this court does not have jurisdiction to
award such relief because, among other things, after this court issued its Memorandum decision

Case 2:04-cv-00772-DAK

Document 113

Filed 09/20/2007

Page 2 of 4

resolving Plaintiff’s FOIA claims, there no longer existed any ‘case or controversy’ sufficient to
confer subject matter jurisdiction on this court.
The court, however, disagrees with the FBI’s contention. This case has not yet been
closed by the court and remains on the list of the court’s active pending cases. In the court’s
view, the March 30, 2006 Amended Memorandum Decision did not necessarily end this action.
Specifically, on May 5, 2005, the court found that the FBI’s search was not reasonably
calculated to discover the requested documents, and the court ordered the FBI to search specific
case files, to produce unredacted copies of various documents, and to produce other documents
responsive to Plaintiff’s FOIA request. Subsequently, Plaintiff objected to the redactions
contained in the documents and argued that the FBI’s search was still inadequate. In response,
the FBI claimed that its redactions were appropriate and that it had not even been required to
produce these documents because they were not responsive to Plaintiff’s FOIA request. The FBI
sought reconsideration of the court’s previous determination that the FBI’s original search was
not reasonably calculated to locate responsive documents. In addition, the FBI requested a
determination that its manual search of five files, and the ZYIndex search of the OKBOMB file
fulfilled the FBI’s responsibilities to locate responsive documents under FOIA and that no further
search was required.
The court specifically stated in its March 29, 2006 Order that it declined to reconsider its
previous determination regarding the reasonableness of the FBI’s initial search and the need to
conduct additional manual searches. Moreover, the court ordered the FBI to conduct two more

2

Case 2:04-cv-00772-DAK

Document 113

Filed 09/20/2007

Page 3 of 4

limited searches in the OKBOMB file and noted that “it is troubling that so many of the
documents produced by the FBI refer to FD-302s that were or should have been prepared, and the
disclosed documents also refer to other attachments that at one time appear to have accompanied
the document, yet these documents have not been produced. While the FBI’s failure to discover
documents is not necessarily an indication of bad faith, it is puzzling that so many documents
could be referenced but not produced.” The court, however, declined to order further searches
beyond what the court had already specifically ordered.
The court had also noted in its May 5, 2005 Order that “[u]pon Motion, the court will
allow Plaintiff to conduct discovery should the FBI fail to produce documents and/or records
responsive to this FOIA requests.” In light of (1) the court’s previous finding that the FBI’s
original search was not reasonably calculated to locate responsive documents; (2) the troubling
absence of documents to which other documents referred; and (3) the information that Plaintiff
has thus far discovered from Terry Lynn Nichols and David Paul Hammer, the court is persuaded
that it continues to maintain jurisdiction over this action, and, furthermore, that by allowing the
requested depositions, Plaintiff may be better able to identify the existence of other records
responsive to his FOIA request that have not yet been produced.
Therefore, for these reasons and the reasons set forth by Plaintiff in his memorandum in
support and his reply memorandum, IT IS HEREBY ORDERED that Plaintiff’s Motion [docket
# 97] is GRANTED. The court notes that it is not compelling Nichols and Hammer to
cooperate; rather, the court is permitting Plaintiff to take–and videotape–the depositions, so long
as these individuals are willing to cooperate. In addition, the court is ordering the respective
3

Case 2:04-cv-00772-DAK

Document 113

Filed 09/20/2007

Page 4 of 4

federal correctional institutions to cooperate in allowing Plaintiff to take these depositions.
DATED this 20th day of September, 2007.
BY THE COURT:

DALE A. KIMBALL
United States District Judge

4

BRETT L. TOLMAN, United States Attorney (#8821)
CARLIE CHRISTENSEN, Assistant United States Attorney (#0633)
185 South State Street, Suite 300
Salt Lake City, Utah 84111
Telephone: [phone]
_____________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
______________________________________________________________________________
JESSE C. TRENTADUE,

:

Plaintiff,

2:04 CV 00772 DAK

:

vs.

:

FEDERAL BUREAU OF
INVESTIGATION and FEDERAL
BUREAU OF INVESTIGATION,
OKLAHOMA CITY FIELD OFFICE,

:

FEDERAL DEFENDANTS’
MEMORANDUM IN SUPPORT
OF MOTION TO RECONSIDER
DISCOVERY ORDER

:
Hon. Dale A. Kimball
:

Defendants.
S))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))

The Federal Bureau of Investigation and the FBI Oklahoma City Field Office (collectively
the “FBI”) hereby submit this memorandum in support of their Motion to Reconsider this Court’s
Memorandum Decision and Order of September 20, 2007.
INTRODUCTION
On September 20, 2007, this Court issued a Memorandum Decision and Order (“the
Discovery Order”) granting Plaintiff’s motion for discovery and permitting Plaintiff to take and
videotape the depositions of Terry Lynn Nichols (“Nichols”), who is serving a life sentence at FCC
Florence; and David Paul Hammer (“Hammer”), who is under a death sentence and confined in Terre
Haute, Indiana. See Dkt. No. 113 at 4.1 Specifically, the Court found that it retained jurisdiction of

1

All references to this Court’s docket will be cited as Dkt. No. ___ at ___.

this case and that by granting Plaintiff’s motion to take the depositions of these individuals, Plaintiff
may be able to identify the existence of other FBI records responsive to his FOIA request that have
not yet been produced. Id. at 3.
As set forth below, this Court should reconsider its Discovery Order and deny Plaintiff’s
motion because the Order exceeds the permissible scope of discovery under FOIA and is without
legal precedent. Discovery under FOIA is limited to the underlying FOIA issues in the case, i.e., the
scope of the agency’s search for responsive documents and its indexing and classification
procedures. Discovery is not permitted when the Plaintiff is using the FOIA lawsuit as a fishing
expedition into the investigatory action taken by the agency or other cases unrelated to the FOIA
lawsuit. Here, the Court’s Discovery Order has the impermissible effect of allowing Plaintiff to
depose Nichols and Hammer to conduct discovery into the Oklahoma City bombing investigation.
There can be no other purpose since Nichols and Hammer are not employees of the FBI and lack any
knowledge of the FBI’s search for records or its decisions concerning the disclosure of the requested
records. Moreover, the Court’s Discovery Order is without legal precedent. This Court did not cite
and the FBI has not located any authority which permits the depositions of non-agency personnel in
a FOIA case.
Further, this Court should reconsider its Discovery Order and deny Plaintiff’s motion because
there is no case and controversy here sufficient to confer subject matter jurisdiction. The Court
previously ordered and the FBI conducted multiple searches for documents responsive to Plaintiff’s
FOIA requests, the FBI produced all the responsive documents which it located, and the FBI asserted
and the Court upheld the exemptions to disclosure of certain records. The Court issued its final
ruling regarding the adequacy of the FBI searches and its disclosures when it issued its Amended
2

Order and denied Plaintiff’s Rule 59(e) motion. Because all pending issues were resolved at that
time, there no longer remained an Article III case and controversy sufficient to confer subject matter
jurisdiction on this Court or any pending issue on which discovery could be had.
Even if the adequacy of the FBI’s searches remained at issue, this Court should still
reconsider its Discovery Order and deny Plaintiff’s motion because there is no question as to the
FBI’s good faith sufficient to justify discovery. This Court has never found that the FBI acted in bad
faith and Plaintiff’s own speculative criticism of the FBI’s searches is insufficient to justify
discovery. Although Plaintiff claims that the FBI responded in bad faith to his FOIA request,
Plaintiff’s request simply never sought the records which he now claims the FBI failed to produce.
Finally, this Court should reconsider its Discovery Order and deny Plaintiff’s motion to
videotape Hammer and Nichols because the BOP has determined that a video recording poses a
threat to the security of the institutions where these individuals are confined.
STATEMENT OF FACTS
1. On July 19, 2004 Plaintiff submitted a FOIA request to the FBI seeking a copy of a
“memorandum” from former FBI Director Louis Freeh concerning Morris Dees and the Southern
Poverty Law Center (“SPLC”) dated January 4, 1996. See Dkt. No. 3, Ex. A; Dkt. No. 21, Ex. A.
at 2. Plaintiff also requested copies of all other documents which “directly or indirectly report upon,
concern, reference, or refer to Morris Dees and/or the SPLC’s involvement with and/or connection
to Elohim City, OKBOMB, BOMBROB, Tim McVeigh, Richard Guthrie, Terry Nichols, Dennis
Mahon, Robert Miller, Michael Brescia, Peter Langan and/or Andreas Strassmeir including all
contacts Dees or the SPLC may have indirectly had with the foregoing through informants.” Id.
(emphasis added).
3

2. On July 28, 2004, Plaintiff submitted a second FOIA request to the FBI seeking a copy
of an FD-302 which he believed was prepared as the result of a meeting he attended with John
Tanner of the Civil Rights Division, Department of Justice; Assistant United States Attorney Jerome
Holmes; and FBI Agent Tom Linn on August 12, 1996. See Dkt. No. 3, Ex. C; Doc. No. 21 Ex. C.
3. On August 20, 2004, Plaintiff filed this action pursuant to FOIA seeking disclosure of
the records which he requested from the FBI, see Dkt. No. 3 at ¶ 7. On October 20, 2004, Plaintiff
filed a Motion for Partial Summary Judgment. See Dkt. No. 8. On November 22, 2004, the FBI
filed its opposition to Plaintiff’s Motion for Partial Summary Judgment and its own Motion for
Summary Judgment. See Dkt. Nos. 13, 14.
4. On May 5, 2005, this Court granted Plaintiff’s Motion for Partial Summary Judgment and
denied the FBI’s Motion for Summary Judgment (“Summary Judgment Order”). See Dkt. No. 31
at 7.
5. On May 19, 2005, the FBI sought modification of the Summary Judgment Order or
alternatively, relief from the Summary Judgment Order pursuant to Fed. R. Civ. P. 59(e) and
60(b)(6). See Dkt. Nos. 32-33. On March 29, 2006, this Court issued a Memorandum Decision and
Order granting in part and denying in part the FBI’s motion. See Dkt. No. 87 at 21.
6. On March 30, 2006, the Court issued an Amended Memorandum Decision and Order
(“Amended Order”) altering the wording of the second sentence of section III.C.4.a of its original
Order. See Dkt. No. 88 at 2 n.1, 15. In all other respects, the Order of March 29, 2006 remained
unchanged. See Dkt. No. 88.
7. On April 4, 2006, and again on April 6, 2006, Plaintiff filed a Rule 59(e) motion asking
the Court to modify its Amended Order and direct the FBI to conduct a search of the Salt Lake City
4

Field Office for additional teletypes allegedly referenced in the redacted documents produced by the
FBI. See Dkt. Nos. 89 at 2; 90 at 1-2; 91 at 2; 92 at 1-2. Alternatively, Plaintiff requested that if the
FBI could not locate the documents in the Salt Lake City Field Office, that the Court direct the FBI
to conduct a manual search of the OKBOMB file for the additional teletypes. Id. On May 19, 2006,
this Court denied Plaintiff’s Rule 59(e) motions because the documents requested by Plaintiff were
not responsive to his FOIA request. See Dkt. No. 95 at 1.
8. On June 2, 2006, the FBI notified the Court that it had completed the limited search
directed by the Court’s Amended Order and located one additional document, a June, 1996 teletype.
See Dkt. No. 96 at 1-2. The FBI also notified the Court that it produced for Plaintiff, in redacted
form, the June, 1996 teletype; those documents previously identified as Exhibits 8, 8b, 9, 9a, 12 and
12a; and the August, 1996 teletype. Id. at 2.
9. Plaintiff did not appeal the Court’s Amended Order or its Order of May 19, 2006 denying
Plaintiff’s Rule 59(e) motions. See Dkt. Nor did Plaintiff challenge the FBI’s search results or the
validity of the exemptions asserted in its June 2, 2006 production. Id.
10. On February 16, 2007, approximately nine months later, Plaintiff filed his Discovery
Motion seeking an order permitting him to depose Nichols2 and Hammer3, two inmates currently
incarcerated in federal correctional facilities in Florence, Colorado and Terre Haute, Indiana

2

Nichols is serving a life sentence for his conviction on conspiracy to use weapons of
mass destruction and involuntary manslaughter charges arising from the bombing of the Alfred P.
Murrah Federal Building in Oklahoma City which killed 168 people. See U.S. v. Nichols, 169
F.3d 1255, 1260 (10th Cir. 1999).
3

Hammer received a death sentence for his conviction on first degree murder charges for
the strangulation death of Andrew Marti, another inmate. See U.S. v. Hammer, 226 F.3d 229,
230-31 (3rd Cir. 2000).
5

respectively. See Dkt. 97 at 2. Plaintiff claimed that these individuals could provide “valuable
information” pertaining to the Oklahoma City bombing and the FBI’s alleged bad faith response to
Plaintiff’s FOIA requests and this Court’s Summary Judgment Order. See Dkt. No. 98 at 4. In
support of his motion, Plaintiff filed the Declarations of Nichols and Hammer. See Dkt. Nos. 99;
100.
11. On September 20, 2007, this Court issued its Discovery Order granting Plaintiff’s motion
for discovery and permitting Plaintiff to take and videotape the requested depositions. See Dkt. No.
113 at 4. Specifically, the Court found that it retained jurisdiction of this case and that by granting
Plaintiff’s motion to take the requested depositions, Plaintiff may be able to identify the existence
of other FBI records responsive to his FOIA request that have not yet been produced. Id. at 3.
ARGUMENT
I.

THIS COURT SHOULD RECONSIDER ITS DISCOVERY ORDER AND
DENY PLAINTIFF’S MOTION BECAUSE IT EXCEEDS THE
PERMISSIBLE SCOPE OF DISCOVERY UNDER FOIA.
This Court should reconsider its Discovery Order and deny Plaintiff’s motion because the

Order exceeds the permissible scope of discovery under FOIA and is without legal precedent.4
Discovery is the exception not the rule in FOIA cases. See Baker & Hostetler LLP v. U.S. Dep’t of
Commerce, 473 F.3d 312, 318 (D.C. Cir 2006); Wheeler v. CIA, 271 F. Supp. 2d 132, 139 (D.D.C.
2003) (holding that discovery is generally unavailable in FOIA actions); Judicial Watch, Inc. v. Exp.4

This Court has jurisdiction to reconsider and vacate its Discovery Order because it is an
interlocutory order. See Anderson v. U.S. Dep’t of Health & Human Svcs., 3 F.3d 1383, 1385
(10th Cir. 1993) (holding that discovery order denying request to take depositions in FOIA action
was interlocutory in nature). Such requests rely upon “the inherent power of the rendering
district court to afford such relief from interlocutory judgments. . . as justice requires.” Greene v.
Union Mut. Life Ins. Co. of America, 764 F.2d 19, 22 (1st Cir. 1985); Wanamaker v. Columbian
Rope Co., 907 F. Supp. 522, 527 (N.D.N.Y. 1995).
6

Imp. Bank, 108 F. Supp. 2d 19, 25 (D.D.C. 2000) (“[D]iscovery in a FOIA action is generally
inappropriate.”). Unlike the broad provisions in the Rules of Civil Procedure which permit
discovery on any non-privileged matter relevant to the claim or defense of any party, see Fed. R. Civ.
P. 26(b)(1), discovery under FOIA is “limited to the scope of an agency’s search [for responsive
documents] and its indexing and classification procedures.” See Heily v. United States Dep’t of
Commerce, 69 Fed. Appx. 171, 174 (4th Cir. 2003) (per curiam); Tax Analysts v. IRS, 214 F.3d 179,
185 (D.C. Cir. 2000) (remanding for discovery on “narrow and fact-specific question” concerning
disclosability of specific type of document); Judicial Watch, Inc. v. United States Dep’t of
Commerce, 127 F. Supp. 2d 228, 230 (D.D.C. 2000) (permitting depositions to be taken about
parameters of FOIA search); Pub. Citizen Health Research Group v. FDA, 997 F. Supp. 56, 72
(D.D.C. 1998) (holding that discovery is limited to “investigating the scope of the agency search for
responsive documents, the agency’s indexing procedures, and the like”); Billington v. Dep’t of
Justice, 11 F.Supp.2d 45, 72 (D.D.C. 1998) (“Discovery is generally limited to the scope of an
agency’s search.”).
Discovery is not permitted where the plaintiff is using the FOIA lawsuit as a means of
questioning investigatory action taken by the agency or the underlying reasons for conducting such
investigations. See RNR Enters. v. SEC, 122 F.3d 93, 98 (2d Cir. 1997) (upholding district court’s
exercise of discretion in denying discovery propounded for “investigative purposes”); Flowers v.
IRS, 307 F. Supp. 2d 60, 72 (D.D.C. 2004) (scolding plaintiff, who “may be unhappy with the search
results,” for seeking discovery in a FOIA case in order to conduct investigation of the agency’s
rationale for tax audit).

7

Nor is discovery permitted where the plaintiff is using a FOIA lawsuit “as a fishing
expedition” for investigating matters related to separate lawsuits. See Tannehill v. Dep’t of the Air
Force, No. 87-1335, 1987 WL 25657, at *2 (D.D.C. Nov. 12, 1987) (limiting discovery to
determination of FOIA issues, not to underlying personnel decision); Al-Fayed v. CIA, No. 00-2092,
slip op. at 17 (D.D.C. Dec. 11, 2000) (terming plaintiff’s discovery request “a fishing expedition”
and refusing to grant it), aff'd on other grounds, 254 F.3d 300 (D.C. Cir. 2001).
Accordingly, even when discovery is permitted to explore the steps an agency took or might
have taken to locate responsive records, discovery is not available as a means of circumventing the
limitations of FOIA itself. It cannot be used to allow a FOIA plaintiff to interrogate agency
employees, or anyone else, on the various topics, for which the plaintiff sought the records in the first
place. FOIA is a device that allows access to records, not to people. See Goldgar v. Office of
Administration, 26 F.3d 32, 34-35 (5th Cir. 1994) (“FOIA applies only to information in record
form”; if a plaintiff “is not seeking an agency record . . . then he is abusing and misusing the
FOIA”).
In this case, the Court’s Discovery Order exceeds the permissible scope of discovery because
it is not limited to the scope of the FBI’s search for responsive documents, the FBI’s indexing
procedures, or any other matter relevant to the FBI’s disclosure obligations under FOIA. See Dkt.
No. 113. To the contrary, the Discovery Order has the impermissible effect of allowing Plaintiff to
depose Nichols and Hammer to conduct discovery into the Oklahoma City bombing investigation.
There can be no other purpose since Nichols and Hammer are not employees of the FBI and lack any
knowledge of the FBI’s search for records or its decisions concerning the disclosure of the requested
records. Even Plaintiff has not suggested that the proposed discovery would or could provide
8

information about the adequacy of the FBI’s search for records. Instead, Plaintiff intends to question
these witnesses about the underlying subject matter of those records, i.e., the Oklahoma City
bombing. See Dkt. No. 98 at 4 (claiming that Nichols and Hammer could provide “valuable
information” pertaining to the Oklahoma City bombing); see also Letter to Robert Mueller, dated
September 21, 2007 and attached as Exhibit A. Such discovery is not permitted under FOIA.
Further, the Discovery Order is without legal precedent. The Court did not cite and the FBI
has not located any authority which permits the depositions of non-agency personnel in a FOIA case.
The only court to address this issue rejected an attempt by a FOIA plaintiff to compel the deposition
of a private citizen. See Kurz-Kasch v. U.S. Dep’t of Defense, 113 F.R.D. 147 (S.D. Ohio 1986).
In Kurz-Kasch, the prospective deponent, Mr. Kurak, was not an employee of the Department of
Defense, and did not participate in either the search for agency records or the decisions concerning
the disclosure of the requested records. Id. at 147. Accordingly, the court concluded that because
Mr. Kurak was a private individual “having no official connection with any federal governmental
agency,” the Court had no jurisdiction under FOIA to enforce the subpoena against Mr. Kurak. Id.
at 148.
Likewise in this case, neither Nichols nor Hammer have ever been employed by the FBI, or
participated in the search for the FBI’s records or the decisions concerning the disclosure of the
FBI’s records. Accordingly, this Court should reconsider its Discovery Order and deny Plaintiff’s
motion because the Order exceeds the permissible scope of discovery under FOIA and is without
legal precedent.

9

II.

THIS COURT SHOULD RECONSIDER ITS DISCOVERY ORDER AND
DENY PLAINTIFF’S MOTION BECAUSE THERE IS NO CASE AND
CONTROVERSY SUFFICIENT TO CONFER SUBJECT MATTER
JURISDICTION UNDER ARTICLE III.
This Court should also reconsider its Discovery Order and deny Plaintiff’s motion because

there is no case and controversy sufficient to confer subject matter jurisdiction here. Article III of
the Constitution requires that federal courts hear only “Cases” and “Controversies.” U.S. Const. art.
III, section 2. Federal courts have “no authority to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which cannot affect the matter in issue in the
case before [them].” Church of Scientology v. United States, 506 U.S. 9, 12 (1992).
In the FOIA context, once an agency releases documents responsive to a FOIA request, there
no longer exists a ‘case or controversy’ sufficient to confer subject matter jurisdiction on the court
because the court has no further judicial function to perform. See Bloom v. Soc. Sec. Admin., 72
Fed. Appx. 733, 735 (10th Cir. July 3, 2003); Anderson, 3 F.3d at 1384 (“[i]n general, once the
government produces all the documents a plaintiff requests, her claim for relief under the FOIA
becomes moot”); Tijerina v. Walters, 821 F.2d 789, 799 (D.C. Cir.1987) (holding that “[h]owever
fitful or delayed the release of information under the FOIA may be ... if we are convinced appellees
have, however belatedly, released all nonexempt material, we have no further judicial function to
perform under the FOIA”).
Likewise, when an agency determines that it does not have any documents responsive to the
plaintiff’s request, the court has no judicial function to perform because the court cannot order the
agency to disclose records which it does not have or cannot locate. See Goldgar, 26 F.3d at 34 (5th
Cir. 1994) (per curiam) (pointing out that where agency had no records responsive to plaintiff’s

10

request, court had no jurisdiction under FOIA); Wichlacz v. United States Dep’t of Interior, 938 F.
Supp. 325, 329 n.1 (E.D. Va. 1996) (holding that FOIA action against FBI was moot where FBI
determined it did not have responsive documents). Thus, once an agency advises a FOIA requester
that the agency released all its responsive records, or does not have, or is unable to locate, responsive
records, there is no case or controversy and thus, no judicial function for the court to perform.
In this case, the FBI conducted multiple searches, both voluntarily and pursuant to court
orders and located records responsive to Plaintiff’s FOIA request. The FBI disclosed, in full or in
part, all the responsive records which it located. The FBI asserted and this Court upheld the FBI’s
assertion of various exemptions to disclosure of those records under FOIA. Based upon this record,
the Court ruled on the parties’ cross-motions for summary and partial summary judgment and
reconsidered its ruling under Rules 59(e) and 60(b). Collectively, these orders resolved the parties’
pending claims. Accordingly, there is no longer any case and controversy and no judicial function
for this court to perform.
In its Discovery Order, however, the Court concluded that it retained jurisdiction because the
case had not been closed and remained on the Court’s list of active pending cases. Dkt. No. 133 at
2. Neither of these circumstances is determinative of whether this Court has the requisite “case and
controversy” under Article III. Rather, the question is whether there remained any judicial function
for the Court to perform.
In this case, the Court issued a final ruling regarding the adequacy of the FBI’s searches and
the validity of its asserted exemptions when it issued its Amended Order and subsequently denied
Plaintiff’s Motion to Amend Judgment. See Dkt. No. 95 at 1. At that time, there were no longer any
pending issues. Although the Court never entered a separate judgment, under Fed. R. Civ. P.
11

58(a)(1)(D) and (b)(1), judgment was entered, in effect, when the Court denied Plaintiff’s Rule 59(e)
motion and entered its Order on the docket. See Whitaker v. Garcetti, 486 F.3d 572, 579 (9th Cir.
2007) (holding that when the parties treat a fully dispositive summary judgment order as if it were
a final judgment, the requirement in Rule 58 that the judgment ‘be set forth on a separate document’
can be waived.” ) The time for appealing that final judgment expired 60 days later under Fed. R.
App 4(a)(1)(b). Once the time expired, the Court’s Order was final, there was no further judicial
function for this Court to perform, and this case should have been closed.
Further, even if the Court retained jurisdiction to ensure that the FBI complied with its
Amended Order, the FBI indicated that it did so on June 2, 2006. See Dkt. No. 96 at 1-2. Thus, a
determination as to the adequacy of the FBI’s searches in response to Plaintiff’s FOIA request was
over at this point and there was no further judicial function to perform.
Accordingly, because this Court resolved all pending issues pertaining to the FBI’s searches
and the validity of its asserted exemptions, there is no case and controversy here and no further
judicial function for this Court to perform.
III.

THIS COURT SHOULD RECONSIDER ITS DISCOVERY ORDER AND
DENY PLAINTIFF’S MOTION BECAUSE PLAINTIFF HAS FAILED TO
RAISE A QUESTION AS TO THE FBI’S GOOD FAITH SUFFICIENT TO
JUSTIFY DISCOVERY.
Even if there were a case and controversy here sufficient to confer subject matter jurisdiction

under Article III, this Court should still reconsider its Discovery Order and deny Plaintiff’s motion
because there is no question as to the FBI’s good faith sufficient to justify discovery. This Court has
never found that the FBI acted in bad faith and Plaintiff’s own speculative criticism of the FBI’s
response to Plaintiff’s FOIA request is insufficient to justify discovery.

12

As set forth above, discovery is the exception not the rule in FOIA cases. See Wheeler, 271
F. Supp. 2d at 139 (holding that discovery is generally unavailable in FOIA actions); Judicial Watch,
Inc., 108 F. Supp. 2d at 25 (“[D]iscovery in a FOIA action is generally inappropriate.”). The only
exception to this general limitation on discovery exists when plaintiff raises a question as to the
agency’s good faith sufficient to impugn its affidavits or provides some evidence that an exemption
claimed by the agency should not apply. See Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2nd
Cir. 1994) (no discovery if agency satisfies burden unless plaintiff makes a “showing of bad faith
on the part of the agency”). A FOIA plaintiff is not entitled to discovery based upon his own
“speculative criticism” of the agency’s search. See Accuracy in Media, Inc. v. Nat’l Park Serv., 194
F.3d 120, 124 (D.C. Cir. 1999) (upholding denial of discovery based on “speculative criticism” of
agency’s search); Grand Cent. P’ship, 166 F.3d at 489 (finding discovery unwarranted based on
plaintiff’s “speculation that there must be more documents” and that agency acted in “bad faith” by
not producing them).
In its Discovery Order, the Court concluded that discovery was appropriate because Nichols
and Hammer might be able to identify the existence of other FBI records responsive to Plaintiff’s
FOIA request that have not yet been produced. See Dkt. No. 113 at 3. Even if the Court were
correct about the deponents’ ability to identify the existence of other documents, a dubious
proposition, the Court’s rationale is in error. Under FOIA, the FBI is not required to locate or
produce every document extant. FOIA requires only that an agency make ‘“a good faith effort to
conduct a search for the requested records, using methods which can be reasonably expected to
produce the information requested.’” Nation Magazine v. United States Customs Serv., 71 F.3d 885,
890 (D.C. Cir. 1995) (quoting Oglesby v. United States Dep’t of the Army, 920 F.2d 57, 68 (D.C.
13

Cir. 1990)). An “agency is not expected to take extraordinary measures to find the requested
records.” Garcia v. United States Dep’t of Justice, 181 F. Supp. 2d 356, 368 (S.D.N.Y. 2002).
In this case, the FBI conducted multiple searches using methods not only reasonably
calculated to produce the requested information, but also extraordinary methods. See Hardy Decl.
at ¶ 16; 2nd Hardy Decl. at ¶¶ 8, 9; 3rd Hardy Decl. at ¶¶ 6, 9 fn.5; 4th Hardy Decl. at ¶ 16; 6th Hardy
Decl. at ¶7. The FBI is not required to do any more and this Court has declined to order that the FBI
do any more presumably based upon the reasonableness of the FBI’s prior searches. See Dkt. No.
88 at 21. (“But given the nature of Plaintiff’s initial FOIA request and the searches that have been
conducted by the FBI thus far, the court declines to order further searches beyond what the court has
ordered above.”).
Although the Court previously found that the FBI’s initial search “was not reasonably
calculated to discover the requested documents,” Dkt. No. 31 at 5, and expressed concern that
documents produced by the FBI referred to other documents that were not produced, see Dkt. No.
113 at 3, this Court also found that the absence of such documents “was not necessarily an indication
of bad faith.” See Dkt. No 88 at 21. In fact, there is no evidence that documents which were
referenced, but not produced, are responsive to Plaintiff’s FOIA request or even in existence.
Moreover, as the FBI previously explained, a search is not unreasonable simply because it fails to
produce all responsive material. See Nation Magazine, 71 F.3d at 892 n.7 (“[T]he failure to turn up
[a specified] document does not alone render the search inadequate; there is no requirement that an
agency produce all responsive documents.”).
Although Plaintiff claims that the FBI responded in bad faith to his FOIA request, Plaintiff’s
request simply never sought the records which he now claims the FBI failed to produce. Compare
14

Dkt. No. 3, Ex. A and Dkt. Nos. 97 at; 98 at 2. Plaintiff’s FOIA requests did not seek information
about an “undercover operative” or any of several militia groups which he now identifies as the
Michigan Militia, the Constitution Rangers or the Arizona Patriots. See Dkt. No. 98 at 2. Nor did
Plaintiff seek information “related to a failed sting operation” by the SPLC and FBI at Elohim City
as he contends. See Dkt. No. 97 at 2.
Likewise, neither Nichols’ nor Hammer’s declaration raise any issue as to the FBI’s good
faith in responding to Plaintiff’s FOIA request, the adequacy of the FBI’s searches, or the validity
of its asserted exemptions. Nor does either declaration make any mention of Morris Dees or the
SPLC, the individual and entity who were the actual subjects of Plaintiff’s FOIA original request.
See Dkt. No. 3, Ex. A.
Accordingly, because this Court has not found that the FBI acted in bad faith and Plaintiff
has failed to raise a question as to the FBI’s good faith sufficient to impugn its affidavits or create
a genuine issue as to the reasonableness of the FBI’s searches, this Court should reconsider its
Discovery Order and deny Plaintiff’s motion.
IV.

ALTERNATIVELY THIS COURT SHOULD RECONSIDER ITS
DISCOVERY ORDER AND DENY PLAINTIFF’S REQUEST TO
VIDEOTAPE THESE DEPOSITIONS FOR SECURITY REASONS.
Alternatively, even if this Court is inclined to permit Plaintiff to depose Nichols and

Hammer, this Court should still reconsider its Discovery Order and deny Plaintiff’s request to
videotape their depositions because the Bureau of Prisons (“BOP”) has determined that a video
recording poses a potential threat to the security of the institutions where these individuals are
confined. Specific regulations govern the BOP’s management of a federal correction facility and
specifically, its search of inmates and visitors, and the supervision of visits and visitors. See
15

generally, 28 C.F.R. Part 500. Under these provisions, the BOP has the discretion to manage noninmates, the objects they bring, and their activities, while inside a BOP facility or upon the grounds
of any BOP facility. See 28 C.F.R. § 511.10(a). The BOP also has the discretion to approve or
deny a request to use recording equipment on institution grounds. If the BOP determines that such
a recording poses a potential threat to the institution’s security or to the privacy of individuals,
including inmates and staff, it may deny the request. See 28 C.F.R. §§ 511.11; 511.12 (prohibiting
the introduction of cameras and/or recording equipment into a BOP facility).
In this case, the BOP has determined that allowing recording equipment onto the institution’s
grounds and into the institutions where these individuals are confined, threatens and is detrimental
to the order and security of the prisons and may violate the privacy of others. Accordingly, this
Court should reconsider its Discovery Order and deny Plaintiff’s request to videotape the depositions
of these witnesses.
CONCLUSION
Based upon the foregoing, the FBI respectfully requests that this Court reconsider its
Discovery Order and deny Plaintiff’s motion. Alternatively, the FBI requests that this Court
reconsider its Discovery Order and deny Plaintiff’s request to videotape these depositions.
DATED this 31st day of October, 2007.
BRETT L. TOLMAN
United States Attorney

/s/ Carlie Christensen
___________________________
CARLIE CHRISTENSEN
Assistant United States Attorney

16

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I am an employee of the United States Attorney's Office, and that
a copy of the foregoing Memorandum in Support of Motion to Reconsider was mailed, postage
prepaid and/or electronically to all parties named below, this 31st day of October, 2007.
Jesse C. Trentadue
Suitter Axland
8 E. Broadway, Suite 200
Salt Lake City, UT 84111

/s/ Linda Pearson
______________________________

17

Case 2:04-cv-00772-DAK

Document 132

Filed 09/25/2008

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

JESSE C. TRENTADUE,
Plaintiff,
ORDER
vs.
FEDERAL BUREAU OF
INVESTIGATION and FEDERAL
BUREAU OF INVESTIGATION,
OKLAHOMA CITY FIELD OFFICE,

Case No. 2:04CV772 DAK

Defendants.

This matter is before the court on the Federal Defendants’ Motion to Reconsider
Discovery Order and Request for Oral Argument. The court has carefully reviewed the written
memoranda submitted by the parties. Pursuant to local rule 7-1(f), the court has concluded that
oral argument would not be helpful or necessary, and thus the court will determine the motion on
the basis of the written memoranda. See DUCivR 7-1(f). Now, being fully advised, the court
renders the following Order.
On September 20, 2007, the court issued granted Plaintiff’s Motion to Conduct
Discovery. Specifically, the court stated that it would permit Plaintiff to take–and videotape–the
depositions of Nichols and Hammer, so long as these individuals are willing to cooperate.
The Federal Defendants argue (1) that this court’s Discovery Order exceeds the
permissible scope of discovery under FOIA, (2) that the court lacks jurisdiction because the court

Case 2:04-cv-00772-DAK

Document 132

Filed 09/25/2008

Page 2 of 3

there is no longer an Article III case and controversy, (3) there is no question as to the FBI’s good
faith sufficient to justify the Discovery Order, and (4) the BOP has determined that a video
recording poses a threat to the security of the institutions where these individuals are confined.
Defendants, however, asserted the first three arguments in their Memorandum in
Opposition. The court rejected those arguments previously and will not reconsider them at this
point. As to the BOP’s concern that a video recording poses a threat to the security of the
institutions, the court will limit the usage of the video recording equipment to only the room in
which the deposition is taken. The two affidavits submitted by the Federal Defendants express
concerns that various aspects of the prison grounds, security systems, equipment storage, offices,
staff, other inmates and various other items might be filmed.
While it is doubtful that Plaintiff intended to video anything other than Nichols and
Hammer during their actual depositions, the court hereby orders that no video equipment may be
used other than in the specific room where each deposition is taking place, and the video
equipment may not record the images of any person other than Nichols and Hammer. In
addition, if it would allay the security concerns of the respective prison officials, Plaintiff is
directed to make arrangements to meet an designated prison official at a predetermined location
outside of the correctional facility and so that the prison official may take possession of the
recording equipment and transport it to the proper location where the deposition will take place.
Now that the court has declined to reconsider its Discovery Order and made clear that
Plaintiff is entitled to conduct this discovery, the court will now close this case. Plaintiff has
stated, however, that he “believes that if he is allowed to depose Nichols and Hammer, these men
2

Case 2:04-cv-00772-DAK

Document 132

Filed 09/25/2008

Page 3 of 3

will be able to provide evidence that will link the informants thus far revealed to the SPLC and,
thereby, identify and/or document the existence of records responsive to Plaintiff’s FOIA
requests that have not been produced.” If Plaintiff is correct and through these depositions he
discovers the existence of records responsive to Plaintiff’s FOIA request, he may file a motion to
reopen the case. At that point, the court will determine whether it is appropriate to reopen the
case or to direct Plaintiff to file another FOIA request.
Finally, the Federal Defendants have filed an “Objection” to Plaintiff’s filing of a “Notice
of Release of Documents,” along with attached documents. While the court agrees that they are
not relevant to the issue of whether Plaintiff is entitled to depose Nichols and Hammer–and the
court has not relied on these documents in making its decision–the court declines to strike them
from the record, as requested by the Federal Defendants.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that the Federal Defendants’
Motion to Reconsider [docket # 114] is DENIED and their Objection [docket # 130] is
OVERRULED. The Clerk of the Court is directed to close this case.
DATED this 25th day of September, 2008.
BY THE COURT:

DALE A. KIMBALL
United States District Judge

3

BRETT L. TOLMAN, United States Attorney (#8821)
CARLIE CHRISTENSEN, Assistant United States Attorney (#0633)
185 South State Street, Suite 300
Salt Lake City, Utah 84111
Telephone: [phone]
________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
________________________________________________________________________
JESSE C. TRENTADUE,
Plaintiff,
vs.
FEDERAL BUREAU OF
INVESTIGATION and FEDERAL
BUREAU OF INVESTIGATION
OKLAHOMA CITY FIELD
OFFICE,

:

2:04 CV 00772 DAK

:
:

NOTICE OF APPEAL

:
:
Hon. Dale A. Kimball
:

Defendants.
:
________________________________________________________________________
Pursuant to 28 U.S.C. § 1291, the Federal Bureau of Investigation and the Federal
Bureau of Investigation Oklahoma City Field Office (collectively “the FBI”) hereby
appeal to the United States Court of Appeals for the Tenth Circuit from the following
orders entered by the Court after its final adjudication of all the underlying issues in this
Freedom of Information Act case:
1. The order of September 20, 2007 granting Jesse Trentadue’s motion to take
and videotape the depositions of two prisoners confined in the Bureau of Prisons’
maximum and high security facilities; and

2. The order of September 25, 2008 denying the FBI’s motion for reconsideration
of the Court’s previous order granting the requested depositions.
DATED this 4th day of November, 2008.
BRETT L. TOLMAN
United States Attorney

/s/ Carlie Christensen
CARLIE CHRISTENSEN
Assistant United States Attorney

CERTIFICATE OF SERVICE
I hereby certify that on November 4th, 2008, a true and correct copy of the FBI’s
Notice of Appeal was mailed, postage prepaid and/or electronically to all parties named
below:
Jesse C. Trentadue
Suitter Axland
8 E. Broadway, Suite 200
Salt Lake City, UT 84111

/s/ Christine Allred
Legal Assistant