Trentadue v. FBI, et al

Filing 14

[9619817] Appellant brief filed by Federal Bureau of Investigation and Federal Bureau of Investigation's Oklahoma City Field Office. Original and 7 copies. Served on 12/15/2008 by email. Oral argument requested? y. Appendix filed. Original and 1 copy. Appendix pages: 1313 (in 4 volumes). Appellee's brief due 1/14/09 as previously scheduled in this court's 11/26/08 order.

[ORAL ARGUMENT REQUESTED]
No. 08-4207
________________________________________________________________
________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_____________________
JESSE C. TRENTADUE,
Plaintiff-Appellee,
v.
FEDERAL BUREAU OF INVESTIGATION;
FEDERAL BUREAU OF INVESTIGATION, OKLAHOMA CITY FIELD OFFICE,
Defendants-Appellants.
_____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JUDGE DALE A. KIMBALL
_____________________
BRIEF FOR THE FEDERAL DEFENDANTS
_____________________

GREGORY G. KATSAS
Assistant Attorney General
BRETT L. TOLMAN
United States Attorney
MARK B. STERN
[phone]
NICHOLAS BAGLEY
[phone]
Attorneys, Appellate Staff
Civil Division, Room 7226
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530

TABLE OF CONTENTS
Page
STATEMENT OF RELATED CASES
STATEMENT OF JURISDICTION.. . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . 3
I.

STATUTORY BACKGROUND. . . . . . . . . . . . . . . . . 3

II.

PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . 3
A.

Plaintiff’s FOIA Request.. . . . . . . . . . . . 3

B.

The Requested Depositions. . . . . . . . . . . . 5

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . 8
STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . 9
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
I.

FOIA PROVIDES NO AUTHORITY FOR PLAINTIFF
TO DEPOSE TWO MAXIMUM SECURITY INMATES
REGARDING FBI CONDUCT IN CONNECTION WITH
THE 1994 OKLAHOMA CITY BOMBING. . . . . . . . . . . . 9
A.

Discovery under FOIA Is Rare and Is
Limited to the Scope of an Agency’s
Search of its Records. . . . . . . . . . . . . . 9

B.

FOIA Does Not Authorize Depositions
into the Underlying Agency Conduct
That Is the Subject of the FOIA
Request. . . . . . . . . . . . . . . . . . . .

13

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . .

19

STATEMENT REQUESTING ORAL ARGUMENT. . . . . . . . . . . . . .

20

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . .

21

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . .

22

i

CERTIFICATE OF DIGITAL SUBMISSION.. . . . . . . . . . . . . .

23

DISTRICT COURT ORDERS AND NOTICE OF APPEAL. . . . . . . . . .

24

ii

TABLE OF AUTHORITIES
Cases:

Page

Anderson v. HHS,
3 F.3d 1383 (10th Cir. 1993). . . . . . . . . . . . . . . .

5

Anderson v. HHS,
80 F.3d 1500 (10th Cir. 1996).. . . . . . . . . . . . . . .

9

Baker & Hostetler LLP v. Dept. of Commerce,
473 F.3d 312 (D.C. Cir. 2006).. . . . . . . . . . . . . 10, 16
Beerheide v. Suthers,
286 F.3d 1179 (10th Cir. 2002). . . . . . . . . . . . . . . 18
Carney v. DOJ,
19 F.3d 807 (2d Cir. 1994). . . . . . . . . . . . . . . 11, 14
Church of Scientology v. IRS,
991 F.2d 560 (9th Cir. 1993). . . . . . . . . . . . . . 12, 13
DiViaio v. Kelley,
571 F.2d 538 (10th Cir. 1978).. . . . . . . . . . . . . . . 11
Founding Church of Scientology, v. NSA,
610 F.2d 824 (D.C. Cir. 1979).. . . . . . . . . . . . . . . 10
Goland v. CIA,
607 F.2d 339 (D.C. Cir. 1978).. . . . . . . . . . . . . . . 11
Grand Central Partnership, Inc. v. Cuomo,
166 F.3d 473 (2d Cir. 1999).. . . . . . . . . . . . 11, 12, 18
Hammer v. Ashcroft,
512 F.3d 961 (7th Cir. 2008). . . . . . . . . . . . . . . . 17
Lane v. Department of Interior,
523 F.3d 1128 (9th Cir. 2008).. . . . . . . . . . . . . 10, 16
NLRB v. Sears, Roebuck & Co.,
421 U.S. 132 (1975).. . . . . . . . . . . . . . . . . .

9, 10

Public Citizen Health Research Group v. FDA,
997 F. Supp. 56 (D.D.C. 1998).. . . . . . . . . . . 12, 15, 16
SafeCard Services, Inc. v. SEC,
926 F.2d 1197 (D.C. Cir. 1991). . . . . . . . . . . . . 10, 12
iii

Turner v. Safley,
482 U.S. 78 (1987). . . . . . . . . . . . . . . . . . . . . 17
Weisberg v. DOJ,
627 F.2d 365 (D.C. Cir. 1980).. . . . . . . . . . . . . 12, 15
Weisberg v. DOJ,
705 F.2d 1344 (D.C. Cir. 1983). . . . . . . . . . . . . 11, 12
Wiener v. FBI,
943 F.2d 972 (9th Cir. 1991). . . . . . . . . . . . . . . . 10
Statutes:
5 U.S.C. § 552. . . . . . . . . . . . . . . . . . . . . . . .

3

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . .
28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . .

1
1

Rules:
Fed. R. App. P. 4.. . . . . . . . . . . . . . . . . . . . . .

1

Fed. R. Civ. P. 26. . . . . . . . . . . . . . . . . . . . . .

18

Fed. R. Civ. P. 27. . . . . . . . . . . . . . . . . . . . . .

15

Fed. R. Civ. P. 30. . . . . . . . . . . . . . . . . . . . . .

18

iv

STATEMENT OF RELATED CASES
Pursuant to 10th Circuit Rule 28.2(C)(1), appellants certify
that they are unaware of any related cases pending in this Court
or any other court of appeals.

Appellee has appeared before this

Court twice in connection with a Federal Tort Claims Act suit
against the United States, see Estate of Trentadue v. United
States, 397 F.3d 840, 857 (10th Cir. 2005); 244 Fed.Appx. 874
(10th Cir. 2007) (unpublished), and once in connection with a
Freedom of Information Act suit against the Integrity Committee,
Trentadue v. Integrity Committee, 501 F.3d 1215 (10th Cir. 2007).
/s
Nicholas Bagley

IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_____________________
JESSE C. TRENTADUE,
Plaintiff-Appellee,
v.
FEDERAL BUREAU OF INVESTIGATION;
FEDERAL BUREAU OF INVESTIGATION, OKLAHOMA CITY FIELD OFFICE,
Defendants-Appellants.
_____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JUDGE DALE A. KIMBALL
_____________________
BRIEF FOR THE FEDERAL DEFENDANTS
_____________________
STATEMENT OF JURISDICTION
The district court had jurisdiction over plaintiff’s claims
under the Freedom of Information Act and 28 U.S.C. § 1331.

On

September 25, 2008, the district court closed the case and
terminated this litigation.

JA 1312.

The federal defendants

filed a notice of appeal on November 4, within the time provided
by the Federal Rules.

See Fed. R. App. P. 4(a)(1)(B).

This

Court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUE
Whether the district court, in this Freedom of Information
Act suit, properly ordered the depositions of two maximum
security federal inmates concerning the Oklahoma City bombing.

STATEMENT OF THE CASE
In July 2004, plaintiff Jesse Trentadue submitted a Freedom
of Information Act (FOIA) request to the Federal Bureau of
Investigation (FBI) seeking, as relevant here, documents
referencing the Southern Poverty Law Center, a non-profit
advocacy organization, in connection with the 1994 Oklahoma City
bombing or various individuals purportedly connected with the
bombing.

Plaintiff filed this FOIA suit one month later.

After the district court held that the FBI’s initial
computer search was inadequate, the agency conducted a manual
search of portions of its records and disclosed seventeen
documents.

In March 2006, the district court ordered two further

searches, which yielded one additional document.

At the same

time, the court rejected plaintiff’s objections to the redactions
in the disclosed documents and concluded that the FBI had
satisfied its FOIA obligations.
Eleven months later, plaintiff filed a motion to depose
Terry Lynn Nichols and David Paul Hammer and to videotape those
depositions.

Nichols is serving a life sentence at a federal

prison in Florence, Colorado for his role in the Oklahoma City
bombing.

Hammer has been sentenced to death for killing his

cellmate and is on death row in Terre Haute, Indiana, where he
allegedly discussed the Oklahoma City bombing with Nichols’s
accomplice, Timothy McVeigh.

Plaintiff argued that he might be

2

able to infer the existence of additional FBI records from the
inmates’ testimony and that this inference might demonstrate that
the agency had not acted in good faith in responding to his FOIA
request.

The district court granted the motion in September

2007, and denied the government’s subsequent motion for
reconsideration in September 2008.

The court then proceeded to

close the case, and the FBI appealed.
STATEMENT OF FACTS
I.

STATUTORY BACKGROUND.
The Freedom of Information Act (FOIA), 5 U.S.C. § 552,

provides access to certain agency records, subject to protections
from disclosure established by nine exemptions and three special
law enforcement exclusions.

See id. § 552(a) & (b).

FOIA

provides for judicial review of agency determinations
“withholding agency records,” and authorizes the federal district
courts “to order the production of any agency records improperly
withheld from the complainant.”
II.

Id. § 552(a)(4)(B).

PROCEDURAL HISTORY.
A.

Plaintiff’s FOIA Request.

This suit arises from a July 2004 request from plaintiff
Jesse C. Trentadue to the FBI under FOIA.

As relevant here, the

request sought all records relating to involvement by the
Southern Poverty Law Center (or one of its founders, Morris Dees)
with the Oklahoma City bombing or various individuals allegedly

3

associated with the bombing.

JA 23.

his request, Trentadue filed suit.

Before the FBI responded to
JA 15.

In November 2004, the FBI explained that it had uncovered no
responsive documents in an automated search of the indices of the
files in the agency’s Central Records System.

JA 77.

In May

2005, the district court held that the FBI’s computer search was
insufficient and ordered the agency to conduct a manual search of
its records.

JA 155.

The FBI immediately sought modification of the court’s
order, explaining that the scope of the search required by the
court would impose extraordinary and unreasonable burdens.
165.

JA

The court stayed its order pending its consideration of

that motion.

JA 238.

Notwithstanding the stay, the FBI

undertook a partial manual search of its records and produced
seventeen responsive documents on July 21, 2005.

JA 240.

In

turn, Trentadue objected that the FBI’s redactions to those
documents were inappropriate.

JA 332.

In March 2006, the district court issued an order addressing
the FBI’s motion to modify the scope of the manual search as well
as Trentadue’s objections to the FBI’s redactions.

JA 881.

The

court found that the FBI’s partial manual search was sufficient
to satisfy the agency’s duty under FOIA and therefore “relieved”
the FBI of any remaining obligations in connection with the FOIA
request.

JA 902.

In addition, the court upheld nearly all the

4

redactions that the FBI had made to the seventeen documents.
893-99.

JA

The court found it “troubling that so many of the

documents produced by the FBI refer to [forms memorializing FBI
interviews] 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.”

JA 901.

After reviewing the Bureau’s

submissions, however, the court ordered the FBI to conduct only
“two more limited searches” in a single file.

JA 900.

The FBI conducted the two additional searches required by
the court and, on June 2, 2006, disclosed a single new document,
as well as updated versions of records in compliance with the
court’s ruling on its redactions.

JA 903.

Trentadue did not

appeal from the March 2006 order, and the FBI considered the case
closed.

See Anderson v. HHS, 3 F.3d 1383, 1384 (10th Cir. 1993)

(“Once the government produces all the documents a plaintiff
requests, her claim for relief under the FOIA becomes moot.”).
B.

The Requested Depositions.

The following year, in February 2007, Trentadue filed a
motion “to depose Terry Lynn Nichols and David Paul Hammer and to
videotape those depositions.”

JA 1006.

In seeking the

depositions, Trentadue declared his “belief that if deposed,
Nichols and Hammer could provide valuable information related not
only to the Oklahoma City bombing but, more importantly, to FBI

5

Defendants’ bad faith response to Plaintiff’s FOIA requests.”
1008.

JA

His motion suggested that the two prisoners might offer

testimony that the FBI knew in advance of the Oklahoma City
bombing.

That testimony would, in Trentadue’s view, buttress his

contention that the FBI had not made a good-faith search in
response to his FOIA request.
Trentadue attached declarations from the two inmates to
support the motion.

The Nichols declaration claims that at least

two other conspirators, including an FBI official, aided Nichols
and McVeigh in bombing the federal building.

JA 1028.

Hammer’s

declaration alleges that McVeigh claimed to be a secret federal
agent and told him that others connected to the Oklahoma City
bombing were likewise federal agents.

JA 1022.

Neither

declaration makes reference to the Southern Poverty Law Center or
Morris Dees.
The government opposed Trentadue’s motion for discovery,
arguing (1) that the court lacked jurisdiction under FOIA to
order the depositions of inmates who knew nothing about the FBI’s
search, (2) that the case had long since terminated and there was
nothing left for the court to do, and (3) that it would be
inappropriate to reopen the case pursuant to Rule 60(b) of the
Federal Rules of Civil Procedure.

JA 1048.

Trentadue replied by

laying out in exhaustive detail his theory that the Oklahoma City
bombing arose out of “a failed Government sting operation at a

6

white supremacist’s paramilitary training compound.”

JA 1094.

In September 2007, the district court granted Trentadue’s
motion and ordered the depositions to proceed.

The court

rejected the contention that the case was over, noting that
“[t]his case has not yet been closed by the court and remains on
the list of the court’s active pending cases.”

JA 1154.

The

court declared that by taking 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.”

JA 1155.

The government moved for reconsideration, reiterating its
earlier points and noting that the Bureau of Prisons (BOP) “has
determined that a video recording poses a threat to the security
of the institutions where [Nichols and Hammer] are confined.”
1162.

JA

On September 25, 2008, the district court entered an order

accommodating some of BOP’s security concerns but otherwise
denying the motion without additional explanation.

In light of

this denial, the court stated that it “will now close this case.”
JA 1312.

The court concluded by noting that “[i]f 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.”

7

JA 1313.

SUMMARY OF ARGUMENT
The Freedom of Information Act (FOIA) provides for the
disclosure of government records, subject to various exemptions.
Because the statute is directed solely to disclosure, discovery
in FOIA litigation is rare and limited.

In unusual cases, a

court may permit discovery into the scope or methodology of an
agency’s search.

Such discovery is inappropriate, however, where

an agency has provided detailed declarations describing the steps
it took to conduct its search and a court has made no findings
impugning the good faith of the government declarants.
Plaintiff in this action sought FBI records involving the
Southern Poverty Law Center and one of its founders in connection
with the 1994 Oklahoma City bombing.

In orders issued in 2005

and 2006, the district court reviewed the adequacy of the FBI’s
response.

After the court held the initial computer search

inadequate, the agency conducted a manual search of a portion of
its records.

The court held that this search, as supplemented by

two additional searches, completely satisfied the agency’s
responsibilities under FOIA.
The court has never revisited that holding to explain
whether or in what respect the agency’s search was inadequate.
Nor has it at any point questioned the good faith of the agency’s
representations.

Under settled law, therefore, plaintiff was

entitled to no discovery of any kind.

8

Even if some limited discovery were appropriate, moreover,
the discovery authorized by the district court is without
precedent in FOIA litigation.

The two inmates can provide no

information regarding the scope of the agency’s document search,
and the court did not suggest otherwise.

Instead, the court

concluded that plaintiff should be allowed discovery into the
FBI’s alleged connection to the perpetrators of the Oklahoma City
bombings.

That ruling fundamentally transforms the nature of

FOIA, which permits plaintiffs to request government records--not
to conduct discovery into the government conduct that is the
subject of a FOIA request.

For that reason, no decision from any

court provides even remote support for ordering the videotaped
depositions of high-profile, maximum security prisoners in
connection with a FOIA suit.
STANDARD OF REVIEW
The district court’s supervision of discovery in a FOIA suit
is reviewed for an abuse of discretion.

See Anderson v. HHS, 80

F.3d 1500, 1507 (10th Cir. 1996).
ARGUMENT
I.

FOIA PROVIDES NO AUTHORITY FOR PLAINTIFF TO DEPOSE TWO
MAXIMUM SECURITY INMATES REGARDING FBI CONDUCT IN CONNECTION
WITH THE 1994 OKLAHOMA CITY BOMBING.
A.

Discovery under FOIA Is Rare and Is Limited to the
Scope of an Agency’s Search of its Records.

The Freedom of Information Act (FOIA) provides a means by
which individuals may request government records.
9

See NLRB v.

Sears, Roebuck & Co., 421 U.S. 132, 162 (1975) (explaining that
FOIA “only requires disclosure of certain documents which the law
requires the agency to prepare or which the agency has decided
for its own reasons to create”).

Because the sole purpose of

FOIA is to obtain production of records subject to release,
discovery is rarely appropriate.

“While ordinarily the discovery

process grants each party access to evidence, in FOIA and Privacy
Act cases discovery is limited because the underlying case
revolves around the propriety of revealing certain documents.”
Lane v. Department of Interior, 523 F.3d 1128, 1134 (9th Cir.
2008) (citing Wiener v. FBI, 943 F.2d 972, 977 (9th Cir. 1991)).
As a general rule, the submission of detailed declarations
explaining the scope of an agency’s search renders discovery
unwarranted.

“Discovery in FOIA 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.”

Baker & Hostetler LLP v. Dept. of Commerce, 473 F.3d

312, 318 (D.C. Cir. 2006) (internal quotation omitted).

“Mere

speculation that as yet uncovered documents may exist does not
undermine the finding that the agency conducted a reasonable
search for them.”

SafeCard Services, Inc. v. SEC, 926 F.2d 1197,

1201 (D.C. Cir. 1991); see also Founding Church of Scientology,
v. NSA, 610 F.2d 824, 836-37 n.101 (D.C. Cir. 1979) (discovery is
not to be granted when the discovery is sought for the “bare hope

10

of falling upon something that might impugn the affidavits”
submitted by the agency); Goland v. CIA, 607 F.2d 339, 353 (D.C.
Cir. 1978) (“[E]ven if the documents do exist and the CIA does
have them, the Agency’s good faith would not be impugned unless
there were some reason to believe that the supposed documents
could be located without an unreasonably burdensome search.”);
Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994) (“In order to
justify discovery once the agency has satisfied its burden, the
plaintiff must make a showing of bad faith on the part of the
agency sufficient to impugn the agency’s affidavits or
declarations * * * .” (citation omitted)).
On the rare occasions that a court countenances discovery
into the conduct of an agency’s search, the only proper object of
discovery is to allow a court to determine whether the agency has
demonstrated that its search for documents was “reasonably
calculated to uncover all relevant documents.”

Weisberg v. DOJ,

705 F.2d 1344, 1351 (D.C. Cir. 1983); DiViaio v. Kelley, 571 F.2d
538, 542 (10th Cir. 1978) (rejecting discovery demands that “are
clearly demands not countenanced by the scope and reach of the
Freedom of Information Act”).

As the courts have emphasized,

“‘[w]hen a plaintiff questions the adequacy of the search an
agency made in order to satisfy its FOIA request, the factual
question it raises is whether the search was reasonably
calculated to discover the requested documents, not whether it

11

actually uncovered every document extant.’”

Grand Central

Partnership, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999)
(quoting SafeCard Services, Inc., 926 F.2d at 1201).

See also

Public Citizen Health Research Group v. FDA, 997 F. Supp. 56, 72
(D.D.C. 1998) (“Discovery is to be sparingly granted in FOIA
actions” and is typically “limited to investigating the scope of
the agency search for responsive documents, the agency’s indexing
procedures, and the like.”), affirmed in part and reversed in
part on other grounds, 185 F.3d 898 (D.C. Cir. 1999).
In Weisberg v. DOJ, 627 F.2d 365, 371 (D.C. Cir. 1980), for
example, the D.C. Circuit found that an FBI affidavit describing
the agency’s search was insufficiently detailed and, for that
reason, ordered a deposition of the FBI employee who oversaw the
search.

But this limited opportunity for discovery did not

authorize depositions unrelated to the adequacy of that search.
To the contrary, the court noted with disapproval in a subsequent
appeal that “much of [the] discovery [that] the agency has
patiently endured * * * has borne only the slightest relation to
whether the FBI has failed to release pertinent documents and
more closely resembled a private inquiry * * * .”

Weisberg, 705

F.2d at 1358.
Similarly, in Church of Scientology v. IRS, 991 F.2d 560
(9th Cir. 1993), the Ninth Circuit reversed a district court’s
refusal to permit discovery “regarding the adequacy of the IRS’s

12

response to the [plaintiffs’] FOIA requests,” id. at 561, in
light of the IRS’s “apparent evasiveness” and its “slim showing
of a need for as extensive a cloak of secrecy as the Government
claimed,” id. at 563.

In reversing the district court’s order,

however, the Ninth Circuit in no way intimated that it would have
been appropriate to order the depositions of private individuals
who knew nothing about “the adequacy of the IRS’s response.”
B.

Id.

FOIA Does Not Authorize Depositions into the
Underlying Agency Conduct That Is the Subject
of the FOIA Request.

The depositions sought in this case cannot plausibly be
brought within the narrow scope of discovery available to
ascertain the adequacy of an agency’s document search.

For that

reason alone, the district court’s order mandating the
depositions was a manifest abuse of discretion.
1.

As an initial matter, the district court addressed and

resolved issues pertaining to the scope of the agency’s search in
orders issued in 2005 and 2006.

In May 2005, the district court

held that the FBI’s initial computer search was insufficient and
ordered the agency to conduct a manual search of its records.
155.

JA

The Bureau sought reconsideration of the order, explaining

that the scope of the search required by the court would impose
extraordinary and unreasonable burdens.

JA 165.

At the same

time, the FBI undertook a partial manual search of its records
that resulted in the production of seventeen responsive documents

13

on July 21, 2005.

JA 240 (FBI notification of document

disclosure); JA 494 (providing 36-page affidavit detailing
search).

In March 2006, the court addressed the adequacy of the

FBI’s partial manual search, and, after ordering two additional
limited searches, “relieved” the FBI of any remaining FOIA
obligations.

JA 902; JA 903 (FBI notification of document

disclosure in connection with the supplemental searches); JA 907
(providing a 13-page affidavit detailing search).
The district court has at no point revisited its ruling
relieving the FBI of any further FOIA obligations in this case.
Nor has it ever found that the agency’s highly detailed
declarations were inadequate or made in bad faith.

As the Second

Circuit has explained, “[a]ffidavits submitted by an agency are
accorded a presumption of good faith; accordingly, discovery
relating to the agency’s search and the exemptions it claims for
withholding records generally is unnecessary if the agency’s
submissions are adequate on their face.”
812 (quotation and citation omitted).

See Carney, 19 F.3d at

Under settled law, then,

no further discovery should have been permitted.
Indeed, the district court’s decision to close the case even
as it authorized the depositions underscores the extraordinary
nature of the discovery order.

The Federal Rules provide for

discovery in pending cases, not in closed cases subject to
reopening only under Rule 60(b).

14

Compare Fed. R. Civ. P. 27

(authorizing depositions absent a pending controversy only in
very limited circumstances not present here).
2.

Breaking from these principles, the district court

granted discovery so that “Plaintiff may be better able to
identify the existence of other records responsive to his FOIA
request that have not yet been produced.”

JA 1155.

This kind of

sweeping discovery order has never been contemplated by any court
in more than four decades of implementing FOIA.

Neither the

district court nor plaintiff has suggested that Nichols or Hammer
has any relevant information regarding the scope of the FBI’s
search.

Nor does either prisoner have any knowledge of FBI

records (except as relevant to their own criminal proceedings).
Compare Weisberg, 627 F.2d at 371 (ordering the deposition of the
agency employee who oversaw the agency’s search).
Plaintiff’s proposition, instead, is that the two inmates
would be able to testify about events that might have resulted in
the creation of FBI records.

Such testimony, plaintiff reasons,

would permit an inference that additional undisclosed records
might exist, an inference that would, in plaintiff’s view,
possibly cast doubt on the good faith of the agency’s search.
See JA 1008.
As discussed, in rare instances limited discovery may be
available to evaluate “the scope of the agency search for
responsive documents, the agency’s indexing procedures, and the

15

like.”

Public Citizen Health Research Group, 997 F. Supp. at 72.

FOIA does not, however, authorize discovery into the agency
conduct that is the subject of the FOIA request.

To the

contrary, “discovery is limited because the underlying case
revolves around the propriety of revealing certain documents.”
Lane, 523 F.3d at 1134.

The courts have thus permitted discovery

only inasmuch as it relates directly to the production of
records, and have never permitted FOIA requesters to use the
statute as a means of obtaining free-wheeling discovery
untethered to any particular case or controversy.

If that were

permitted, discovery in FOIA litigation would cease to be “rare.”
Baker & Hostetler LLP, 473 F.3d at 318.

It would become a matter

of course.
3.

Furthermore, plaintiff has failed even to demonstrate a

connection between the two deponents and the underlying FBI
conduct that is the subject of the FOIA request.

As the district

court determined, plaintiff’s FOIA request seeks records
containing “either Morris Dees’ name or the Southern Poverty Law
Center’s name and at least one of the other listed names.”
JA 886.

Neither of the two prisoners’ declarations mention the

Southern Poverty Law Center or Dees, see JA 1022, 1028, and it is
entirely unclear why the testimony of Nichols or Hammer would
suggest, even inferentially, the existence of records concerning
them.

Indeed, plaintiff acknowledged in district court that he

16

“does not yet know the specifics of how any of this circle of
informants are tied to the SPLC.”

JA 1065.

Thus, although plaintiff has obtained the declarations of
the potential deponents and has failed to establish any
connection to the matter he hopes to investigate, he still hopes
to compel their videotaped depositions.

Even if this were a

civil action challenging FBI conduct regarding the Southern
Poverty Law Center or Dees, a district court would properly be
reluctant to permit videotaped depositions of maximum security
prisoners based on such a thin proffer.

Giving inmates access to

public fora can have the inadvertent effect of conferring
celebrity status on an inmate that may affect the dynamics of
prison culture.

In addition, a prisoner who makes a statement

about another inmate--as Hammer frankly admits he intends to do-can provoke inmate-on-inmate violence, which can in turn have
serious consequences for the security of federal prisons.
Absent a strong showing of need for videotaped testimony,
both of these factors counsel against providing federal prisoners
with a court-sanctioned soapbox.1

As the Supreme Court explained

in Turner v. Safley, 482 U.S. 78, 86 (1987), “judgments regarding
prison security are peculiarly within the province and
1

These very concerns animate a Bureau of Prisons policy
barring death-row inmates from giving face-to-face interviews
with the media. Hammer, who has given several interviews in the
past, is currently involved in litigation in the Seventh Circuit
challenging that policy. Hammer v. Ashcroft, 512 F.3d 961 (7th
Cir. 2008) (rehearing en banc granted Aug. 19).
17

professional expertise of corrections officials, and in the
absence of substantial evidence in the record to indicate that
the officials have exaggerated their response to these
considerations, courts should ordinarily defer to their expert
judgment in such matters.”

See also Beerheide v. Suthers, 286

F.3d 1179, 1184 (10th Cir. 2002) (noting “the Supreme Court’s
deferential approach in matters of prison administration”).
A court should be all the more circumspect in a FOIA suit in
which the only issue to which discovery is properly directed “is
whether the search was reasonably calculated to discover the
requested documents[.]”
F.3d at 489.

Grand Central Partnership, Inc., 166

That is particularly so here, given that

plaintiff’s submission of lengthy and detailed affidavits from
the two prisoners demonstrates that he already has access to
their testimony.

See Fed. R. Civ. P. 26(b)(2) (prohibiting

discovery, including depositions, when “the party seeking
discovery has had ample opportunity to obtain the information
sought by discovery in the action”); see also Fed. R. Civ. P.
30(b)(4) (authorizing depositions by telephone).

18

CONCLUSION
For the foregoing reasons, the Court should vacate the
district court’s orders of September 20, 2007 and September 25,
2008.
Respectfully submitted,
GREGORY G. KATSAS
Assistant Attorney General
BRETT L. TOLMAN
United States Attorney
MARK B. STERN
[phone]
/s
NICHOLAS BAGLEY
[phone]
Attorneys, Appellate Staff
Civil Division, Room 7226
Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530
DECEMBER 2008

19

STATEMENT REQUESTING ORAL ARGUMENT
The federal defendants-appellants respectfully request that
the Court hear oral argument in this appeal, which raises
important issues about the proper scope of discovery in suits
brought under the Freedom of Information Act.

CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of December, 2008, I
caused copies of the foregoing motion to be filed with the Court
electronically (including attachments in scanned PDF format) and
by Federal Express overnight delivery, and served upon the
following counsel electronically and by Federal Express overnight
delivery:
Jesse C. Trentadue
8 East Broadway, Suite 200
Salt Lake City, UT 84111
[e-mail]
/s
Nicholas Bagley

CERTIFICATE OF COMPLIANCE
As required by Fed. R. App. P. 32(a)(5) and (6), I certify
that this brief has been prepared in a proportionally spaced
typeface using Corel WordPerfect 12 in 14-point Times New Roman
font.

I further certify that pursuant to Fed. R. App. P.

32(a)(7)(B) that the foregoing brief contains 3,993 words,
according to the word count of Corel WordPerfect 12.

I certify

that the information on this form is true and correct to the best
of my knowledge and belief formed after a reasonable inquiry.
/s
Nicholas Bagley

CERTIFICATE OF DIGITAL SUBMISSION
Pursuant to this Court’s General Order 5, filed on October
20, 2004, and amended most recently on January 1, 2006, I hereby
certify that:
1.

all required privacy redactions have been made and,
with the exception of those redactions, every document
submitted in Digital Form is an exact copy of the
written document filed with the Clerk, and

2.

the digital submissions have been scanned for viruses
with the most recent version of the following
commercial virus scanning program, which indicates that
the submissions are free of viruses.
Program:
Version:
Last Updated:

Trend Micro OfficeScan
6.5
December 14, 2008
/s
Nicholas Bagley

DISTRICT COURT ORDERS
AND NOTICE OF APPEAL

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

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