Pickard v. Department of Justice

Filing 179

ORDER by Judge Elizabeth D. Laporte denying 173 Motion To Lift Stay (lrc, COURT STAFF) (Filed on 9/13/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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WILLIAM LEONARD PICKARD,

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United States District Court
For the Northern District of California

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Plaintiff,

ORDER DENYING WITHOUT
PREJUDICE PLAINTIFF’S MOTION TO
LIFT STAY OF DISCOVERY

v.
DEPARTMENT OF JUSTICE,
Defendant.

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No. C -06-00185 CRB (EDL)

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In this case brought pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”),

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Plaintiff has filed a Motion to Lift Stay of Discovery, seeking leave to serve thirteen Requests for

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Admission (“RFAs”) on Defendant. This matter is appropriate for decision without oral argument.

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Plaintiff’s Motion is denied.

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Defendant first argues that Plaintiff failed to fully meet and confer about the discovery that

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he intends to propound, noting that Plaintiff only met and conferred about six of the thirteen RFAs at

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issue. See July 20, 2006 Order (Docket No. 16); Fed. R. Civ. P. 37. Plaintiff does not dispute that

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he did not specifically meet and confer about all of the RFAs, but points out that he has not yet

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served them on or demanded responses from Defendant. Even if Plaintiff was not required to meet

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and confer about his proposed discovery requests, the better practice would have been to do so. The

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Court, however, does not deny Plaintiff’s motion on this basis.

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Defendant also argues that Plaintiff’s motion is untimely as to the majority of the requests

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because under Federal Rule of Civil Procedure 56(d), Plaintiff should have brought this motion

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during the last round of summary judgment briefing in late 2012. See Fed. R. Civ. P. 56(d) (in

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response to a summary judgment motion, a nonmoving party may obtain relief pursuant to Federal

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Rule of Civil Procedure 56(d) if it “shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition.”). Defendant argues that because Judge

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Breyer required a Vaughn index after a hearing on Defendant’s summary judgment motion in

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September 2012, and because the parties anticipate filing supplemental evidence and briefs, the

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summary judgment motion remains pending. Therefore, according to Defendant, because Plaintiff

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did not file this motion during the briefing for that motion, Plaintiff can only seek discovery now

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related to new information, that is, the Vaughn index. However, on September 28, 2012, Judge

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Breyer issued a minute order denying the motion for summary judgment, and there is no indication

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on the docket that the motion remains pending.

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Nonetheless, the Court need not resolve the question of whether Rule 56(d) applies or
whether there is a pending summary judgment motion because under any circumstances, Plaintiff’s

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United States District Court
For the Northern District of California

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motion is barred. If there is no summary judgment motion pending, Plaintiff’s request for discovery

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is premature because the time to pursue discovery would be after Defendant files a motion for

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summary judgment if necessary to obtain facts essential to justify Plaintiff’s opposition. See Fed. R.

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Civ. P. 56(d). If, as Plaintiff argues, he seeks discovery to support his own motion for summary

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judgment, the discovery he seeks is not available under Rule 56(d) and also does not appear to meet

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the requirements for discovery under FOIA. See, e.g., Lawyers for Civil Rights of SF Bay Area v.

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United States Dep’t of the Treasury, 534 F. Supp. 2d 1126, 1132 (N.D. Cal. 2008) (“Discovery is

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usually not permitted in a FOIA case if the government's affidavits were made in good faith and

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provide specific detail about the methods used to produce the information. . . . Discovery is not

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warranted “when it appears that discovery would only ... afford [the plaintiff] an opportunity to

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pursue a bare hope of falling upon something that might impugn the affidavits.’”) (internal citation

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omitted). Finally, if a summary judgment motion is pending, Plaintiff’s motion is barred because he

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should have sought discovery in connection with his opposition to the motion.

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Accordingly, Plaintiff’s Motion to Lift Stay of Discovery is denied without prejudice.

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IT IS SO ORDERED.

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Dated: September 13, 2013
ELIZABETH D. LAPORTE
United States Magistrate Judge

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