Electronic Frontier Foundation v. Department of Defense et al

Filing 18

SCHEDULING ORDER (tfS, COURT STAFF) (Filed on 7/6/2010)

Electronic Frontier Foundation v. Department of Defense et al

Doc. 18

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TONY WEST Assistant Attorney General JOSEPH P. RUSSONIELLO United States Attorney JOHN TYLER Assistant Branch Director KIMBERLY L. HERB Illinois Bar No. 6296725 Trial Attorney Civil Division, Federal Programs Branch U.S. Department of Justice P.O. Box 883 Washington, D.C. 20044 Telephone: [phone] Facsimile: [phone] Attorneys for DEFENDANTS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ELECTRONIC FRONTIER FOUNDATION, Plaintiff, v. DEPARTMENT OF DEFENSE, et al., Defendants. Case No. CV 09-5640 SI STIPULATION TO CHANGE TIME FOR FILING DISPOSITIVE MOTIONS

Pursuant to Fed. R. Civ. P. 6(b)(1) and Civil L.R. 6-2, the parties, by and through undersigned counsel, hereby stipulate and respectfully move to change the time for the filing of dispositive motions until after the Case Management Conference on July 16, 2010. The requested

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change will not significantly affect the present schedule for the case. In accordance with Civil L.R. 6-2(a), this motion is supported by the Declaration of Kimberly L. Herb, counsel for Defendants, filed herewith and a proposed order below.

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1.

The parties submit, and the Declaration of Ms. Herb establishes, that there is good

cause for the requested change as follows: a. During the Initial Case Management Conference on March 12, 2010, the

parties agreed that the Executive Office for United States Attorneys ("EOUSA"), Bureau 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
NO. CV 09-5640 SI STIPULATION REGARDING CASE MANAGEMENT SCHEDULE AND PARTIAL DISMISSAL

of Alcohol, Tobacco, Firearms and Explosives ("ATF"), the Department of the Treasury ("Treasury"), and the Department of Justice, Criminal Division ("Criminal Division") and Drug Enforcement Administration ("DEA") would submit dispositive motions on June 11, 2010. (Docket 13.) The parties further agreed to discuss a time for dispositive motions for the remaining defendants and subcomponents--the Central Intelligence Agency ("CIA"), Department of Homeland Security ("DHS"), Office of the Director of National Intelligence ("ODNI"), Federal Bureau of Investigation ("FBI"), and Department of Defense ("DOD")--during the Further Case Management Conference scheduled for July 16, 2010. b. Subsequent to the Initial Case Management Conference, and most recently

on May 21, 2010, Plaintiff indicated its intention to file new or amended FOIA requests with ATF, CIA, DEA, DOD, EOUSA, FBI, and the Criminal Division. EFF needed to file new FOIA requests with EOUSA and ATF to correct an earlier failure to exhaust administrative remedies. EFF also filed new and amended requests 1 to address a good faith disagreement between the parties--EFF believed its original requests encompassed a request for third-party documents within the agencies' possession, and Defendants believed the original requests only sought agency-authored documents. Many of the References to the "new and amended requests" or requests "recently filed" refer to EFF's FOIA requests relating to this matter dated as follows: requests with the CIA, FBI, and DOD dated May 20, 2010; requests with ATF, DEA, U.S. Air Force, and the Criminal Division dated May 21, 2010; and requests with EOUSA dated April 7, 2010 and May 21, 2010. 2
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Defendants had not previously searched for documents authored by third parties, and these Defendants will need additional time to process EFF's recent requests. EFF notes that its submission of new and amended FOIA requests was not a concession that third-party documents were outside the scope of its original requests, but was intended as a

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clarification that EFF believed those documents to be included within the scope of those requests. c. The briefing schedule originally entered into by the parties in March 2010

was based on the FOIA requests as originally filed. If the parties adhere to the present schedule in the wake of EFF's service of new and amended FOIA requests, this litigation might include more motions and briefs than initially contemplated, as EFF would have to file multiple motions to consolidate the new and amended requests and rejoin EOUSA and ATF to the present action. d. In an effort to conserve the Court's and parties' resources, the parties have

agreed solely for the purposes of the present case to the following: i. EFF will exhaust in a timely fashion its administrative remedies

with regard to its recently filed FOIA requests with EOUSA and ATF. If EFF seeks to challenge EOUSA's or ATF's response after exhaustion, (1) EFF will file a new action against either or both of those agencies and seek to consolidate it with the present action, and (2) Defendants agree that they will not oppose consolidation of a new action against EOUSA and ATF emanating from the recently filed FOIA requests; ii. Defendants agree that they will not require EFF to pursue

administrative remedies, file complaints, or seek consolidation for any other aspect

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of the new and amended requests, with the exception of the process described in paragraph 1(d)(i) concerning EOUSA and ATF; iii. Subject to the FOIA and agency regulations, EFF has the right to

file FOIA requests on any issue of its choosing; EFF agrees, however, that it will 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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not seek to consolidate any litigation arising from FOIA requests submitted after the date of this stipulation with the present action; and iv. The parties agree that EFF retains the right to challenge

Defendants' document processing and production, including the adequacy of the searches and any claimed exemptions, in this case. 2. 3. case. a. While this stipulation and proposed order will delay briefing on Plaintiff's There have been no previous modifications of time in this case. The requested enlargement will not significantly affect the present schedule for the

FOIA requests as originally filed with ATF, EOUSA, Treasury, DEA, and the Criminal Division, this delay is not significant in light of the fact that motions on the original requests might not resolve all the issues relating to these Defendants. b. The requested change of time for filing dispositive motions will not affect

the present schedule with regard to the CIA, DHS, ODNI, FBI, and DOD, as the parties were to discuss a motions schedule with regard to these Defendants during the Further Case Management Conference on July 16, 2010. c. The parties propose to retain the Further Case Management Conference

currently scheduled with the Court on July 16, 2010. At that time, the parties will update the Court on the processing of all of Plaintiff's FOIA requests to date.

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d.

The parties believe that briefing on dispositive motions with regard to all

the current Defendants and subcomponents can commence in early fall of this year. The parties anticipate that EOUSA and ATF, assuming timely exhaustion, will be ready to file dispositive motions at the same time as the Defendants currently party to this action.

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*** In order to allow Defendants sufficient time to complete the processing of Plaintiff's recently filed FOIA requests, the parties hereby respectfully request that the Court change the time for the briefing scheduled for June 11, 2010 and permit the parties to discuss a new briefing schedule during the Further Case Management Conference scheduled on July 16, 2010.

DATED: June 10, 2010 /s/ Marcia Hofmann ELECTRONIC FRONTIER FOUNDATION Marcia Hofmann, Esq. 454 Shotwell Street San Francisco, CA 94110 Telephone: [phone] Facsimile: [phone] SAMUELSON LAW, TECHNOLOGY AND PUBLIC POLICY CLINIC Jason M. Schultz U.C. Berkeley School of Law 396 Simon Hall Berkeley, CA 94720-7200 Telephone: [phone] Facsimile: [phone]

Respectfully submitted, TONY WEST Assistant Attorney General JOSEPH P. RUSSONIELLO United States Attorney JOHN TYLER Assistant Branch Director /s/ Kimberly L. Herb Kimberly L. Herb Trial Attorney United Stated Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20530 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Attorneys for Defendants

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1 2 3 Dated: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED.

SUSAN ILLSTON United States District Judge

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GENERAL ORDER NO. 45(X) CERTIFICATION I attest that I have obtained Marcia Hoffmann's concurrence in the filing of this document. /s/ Kimberly L. Herb Kimberly L. Herb

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