Pickard v. Department of Justice

Filing 367

ORDER, Report and Recommendation by Magistrate Judge N Cousins denying 357 Motion to Compel Production of Documents, with Recommendation to Dismiss Case. (Cousins, Nathanael) (Filed on 8/19/2021)<hr><center>Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)</center>

Case 3:06-cv-00185-CRB Document 367 Filed 08/19/21 Page 1 of 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WILLIAM LEONARD PICKARD,

United States District Court
Northern District of California

Plaintiff,
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v.
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UNITED STATES DEPARTMENT OF
JUSTICE,

Case No. 06-cv-00185-CRB (NC)
REPORT &
RECOMMENDATION TO
DISMISS CASE
Re: ECF 357

Defendant.

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This matter arises out of Plaintiff William Leonard Pickard’s Freedom of

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Information Act request that Defendant United States Department of Justice produce

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certain documents from the Drug Enforcement Agency regarding Gordon Todd Skinner, a

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confidential informant. On February 27, 2020, Judge Charles R. Breyer referred this

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matter to this Court for all further proceedings. ECF 329.

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On June 17, 2020, the Court ordered the government to produce all of the materials

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published by order of the court in the prior Kansas case and an explanatory chart with a

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corresponding Vaughn index by July 17, 2020. ECF 339. Pickard was given until August

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17, 2020, to file a motion challenging the sufficiency of the government’s production. Id.

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After six extensions of the deadline, Pickard filed his motion on April 1, 2021. ECF 342;

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ECF 345; ECF 350; ECF 352; ECF 354; ECF 356; ECF 357. In the motion, Pickard

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pointed out that a file he asked for in a separate FOIA request–Skinner’s Narcotics and

Case 3:06-cv-00185-CRB Document 367 Filed 08/19/21 Page 2 of 3

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Dangerous Drug Information System report from 2005–was not included in the

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government’s production. ECF 357. In its opposition, the government argued that the

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2005 NADDIS report is outside the scope of Pickard’s initial FOIA request. ECF 358.

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Nevertheless, the government conducted a “reasonable search” for the 2005 NADDIS

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report and did not find it. Id. At the May 5, 2021 hearing on the motion, the Court ordered

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the parties to confer on the issue by May 19, 2021. ECF 360. And the Court ordered

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Pickard to file a supplemental brief by May 21, 2021, including a citation to his previous

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request for the 2005 NADDIS report. Id.
In his status report following the hearing, Pickard noted that aside from the missing

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2005 NADDIS report, the government “appears to have provided all relevant materials.”

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United States District Court
Northern District of California

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ECF 361. Pickard also raised an issue as to the authenticity the Risk Assessment

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document included in the government’s confidential information file production. Id. The

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Court held a hearing on May 26, 2021, to discuss the remaining two disputes. Following

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the hearing, the Court ordered Pickard to provide a Bates number to identify the Risk

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Assessment document in question, and set a further hearing for June 30, 2021. ECF 362.
Prior to the hearing, the government filed a status report noting that it voluntarily

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provided Pickard with a 2021 print-out of Skinner’s NADDIS report. ECF 364. The

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government also maintained that FOIA did not provide Pickard grounds to challenge the

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authenticity of the Risk Assessment document. Id. At the hearing on July 28, 2021,1

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Pickard agreed that the government produced all of the requested material. With the

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production dispute resolved, the only issue remaining before the Court is whether an

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individual can challenge the authenticity of a document produced through a FOIA request.
The government asserts that the question of authenticity is outside the scope of a

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FOIA request. At the hearing, Pickard agreed but nevertheless urged the Court to consider

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the question of authentication. The Court finds that, in the absence of persuasive authority

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cited by Pickard, the Court does not have jurisdiction under this FOIA request to look

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The June 30 hearing was continued to July 28, 2021. ECF 365.
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Case 3:06-cv-00185-CRB Document 367 Filed 08/19/21 Page 3 of 3

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beyond whether an agency has improperly withheld agency records. See Sanders v.

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Obama, 729 F. Supp. 2d 148, 158 (D.D.C. 2010) (citing U.S. Dept. of Justice v. Tax

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Analysts, 492 U.S. 136, 142 (1989)) aff’d sub nom. Sanders v. U.S. Dept. of Justice, Case

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No. 10-5273, 2011 U.S. App. LEXIS 8326 (D.C. Cir. Apr. 21, 2011). In addition to

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lacking jurisdiction to hear the dispute, the Court’s “remedial powers are limited to

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injunctive relief to remedy the improper withholding of agency records . . . not to

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determine the authenticity of the produced documents.” See id. (citing Kissinger v.

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Reporters Comm. for Freedom of Press, 445 U.S. 136, 150 (1980)). Thus, the Court does

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not have the jurisdiction, nor remedial powers, to address Pickard’s authenticity dispute.

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Accordingly, after reviewing the parties’ briefing, status reports, and hearings, the

United States District Court
Northern District of California

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Court FINDS: (1) the government satisfied Pickard’s FOIA request by producing all

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requested documents, and (2) the Court does not have the jurisdiction or remedial power to

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address the remaining authenticity dispute. The Court now RECOMMENDS that this

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matter be considered resolved and this claim be DISMISSED. Any party may object to the

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recommended disposition, but must file a written objection with Judge Charles R. Breyer

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within 14 days of being served with this order. See Fed. R. Civ. P. 72(b)(2).

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IT IS SO ORDERED.

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Dated: August 18, 2021

_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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