Electronic Frontier Foundation v. Department of Defense et al

Filing 58

ORDER continuing motion hearing (tf, COURT STAFF) (Filed on 12/6/2011)

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TONY WEST
Assistant Attorney General
MELINDA L. HAAG
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]

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Attorneys for DEFENDANTS

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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)
ELECTRONIC FRONTIER FOUNDATION, ) Case No. 3:09-CV-05640-SI
)
Plaintiff,
)
) STIPULATION AND [PROPOSED]
vs.
) ORDER TO AMEND BRIEFING
) SCHEDULE
DEPARTMENT OF DEFENSE, ET AL.,
)
)
Defendants.
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)
)

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Case No. 3:09-CV-05640-SI
STIPULATION AND [PROPOSED] ORDER TO AMEND BRIEFING SCHEDULE

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Pursuant to Federal Rule of Civil Procedure 6(b)(1) and Civil L.R. 6-2, Plaintiff Electronic
Frontier Foundation (“EFF”) and Defendants Department of Justice, Criminal Division; U.S. Secret
Service; Federal Bureau Investigation; and Department of Homeland Security (collectively
“Defendants”) hereby stipulate to and respectfully request that this Court extend the briefing
schedule for the filing of the parties’ reply briefs related to their dispositive motions. Defendants
requested the revisions to the briefing schedule due to the illness of Defendants’ counsel.
1. Defendants submit that the Declaration of Kimberly L. Herb establishes good cause for
the requested enlargement as follows:
a. On September 22, 2011, the parties filed a stipulation proposing the following dates
for briefing on the parties dispositive motions: Defendants file their motion for
summary judgment on October 21, 2011; EFF files its opposition and cross-motion
on November 18, 2011; Defendants file their reply and opposition to EFF’s crossmotion on December 2, 2011; EFF files its reply to its cross- motion on December
16, 2011; the Court holds a hearing on the parties’ dispositive motions on January
13, 2012. The Court granted the parties’ stipulation on September 27, 2011. (Dkt.
54.)
b. Defendants filed their motion for summary judgment on October 21, 2011. (Dkt.
55.) EFF filed its opposition to Defendants’ motion and cross moved for summary
judgment on November 17, 2011. (Dkt. 56.)
c. Counsel for Defendants became ill on November 21, 2011 with respiratory and
sinus infections. She has been out of the office for much of the last ten days due to
illness and reactions to medication. As a result, she has not had adequate time to
prepare Defendants’ reply brief and requested that EFF grant an extension of the
briefing schedule.
d. On December 1, 2011, defense counsel conferred with EFF’s counsel regarding the
briefing schedule for the parties’ reply brief related to their dispositive motions.
The parties agreed to revise the briefing schedule as follows: Defendants file their

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Case No. 3:09-CV-05640-SI
-2STIPULATION AND [PROPOSED] ORDER TO AMEND BRIEFING SCHEDULE

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reply brief in support of Defendants’ motion for summary judgment and opposition
to EFF’s cross-motion for summary judgment on December 16, 2011; EFF files its
reply for its cross-motion on January 6, 2012; the Court holds a hearing on the
parties’ dispositive motions on January 20, 2012.
2. While the requested enlargement will affect the present briefing schedule for this case,

the parties believe a short extension of the briefing schedule is warranted given the
circumstances. Furthermore, the parties believe this case will be resolved on summary
judgment, and thus this case can be resolved expeditiously after the filing of the parties’
motions.

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* * *
The parties respectfully request that the Court extend the briefing schedule for the filing of
the parties’ dispositive motions such that they may be filed as discussed in paragraph 1(d) above.

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Case No. 3:09-CV-05640-SI
-3STIPULATION AND [PROPOSED] ORDER TO AMEND BRIEFING SCHEDULE

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DATED: December 2, 2011

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Respectfully submitted,

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/s/ Jennifer Lynch
ELECTRONIC FRONTIER FOUNDATION
Jennifer Lynch, Esq.
Marcia Hoffman, Esq.
454 Shotwell Street
San Francisco, CA 94110
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

TONY WEST
Assistant Attorney General

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Jason M. Schultz
SAMUELSON LAW, TECHNOLOGY &
PUBLIC POLICY CLINIC
UC Berkeley School of Law
396 Simon Hall
Berkeley, CA 94720-7200
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

/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]

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Attorneys for Plaintiff

Attorneys for Defendants

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JOSEPH P. RUSSONIELLO
United States Attorney
JOHN TYLER
Assistant Branch Director

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GENERAL ORDER NO. 45(X) CERTIFICATION
I attest that I have obtained Jennifer Lynch’s concurrence in the filing of this document.

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/s/ Kimberly L. Herb
Kimberly L. Herb

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*

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PURSUANT TO STIPULATION, IT IS SO ORDERED.
12/6/11
Dated: ________________

___________________________
Hon. Susan Ilston
United States District Judge

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Case No. 3:09-CV-05640-SI
-4STIPULATION AND [PROPOSED] ORDER TO AMEND BRIEFING SCHEDULE

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TONY WEST
Assistant Attorney General
MELINDA L. HAAG
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]

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Attorneys for DEFENDANTS

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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ELECTRONIC FRONTIER FOUNDATION,
Plaintiff,

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v.
DEPARTMENT OF DEFENSE, et al.,

Case No. CV 09-5640 SI
DECLARATION OF KIMBERLY L.
HERB IN SUPPORT OF STIPULATION
TO AMEND BRIEFING SCHEDULE

Defendants.

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I, Kimberly L. Herb, hereby declare as follows:
1.

I am a Trial Attorney in the Federal Programs Branch, Civil Division of the United

States Department of Justice. I am lead counsel and represent Defendants in this case.
2.

On September 22, 2011, the parties filed a stipulation proposing the following

dates for briefing on the parties dispositive motions: Defendants file their motion for summary
judgment on October 21, 2011; EFF files its opposition and cross-motion on November 18, 2011;
Defendants file their reply and opposition to EFF’s cross-motion on December 2, 2011; EFF files
NO. CV 09-5640 SI
DECLARATION OF KIMBERLY L. HERB IN SUPPORT OF STIPULATION TO AMEND BRIEFING SCHEDULE

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its reply to its cross- motion on December 16, 2011; the Court holds a hearing on the parties’
dispositive motions on January 13, 2012. The Court granted the parties’ stipulation on September
27, 2011. (Dkt. 54.)
3.

Defendants filed their motion for summary judgment on October 21, 2011. (Dkt.

55.) EFF filed its opposition to Defendants’ motion and cross moved for summary judgment on
November 17, 2011. (Dkt. 56.)
4.

I became ill on November 21, 2011 with respiratory and sinus infections. I have

been out of the office for much of the last ten days due to illness and reactions to medication. As
a result, I have not had adequate time to prepare Defendants’ reply brief and requested that EFF
grant an extension of the briefing schedule.
5.

On December 1, 2011, defense counsel conferred with EFF’s counsel regarding

the briefing schedule for the parties’ reply briefs related to their dispositive motions. The parties
agreed to revise the briefing schedule as follows: Defendants file their reply brief in support of
Defendants’ motion for summary judgment and opposition to EFF’s cross-motion for summary
judgment on December 16, 2011; EFF files its reply for its cross-motion on January 6, 2012; the
Court holds a hearing on the parties’ dispositive motions on January 20, 2012.
6.

To date, there have been seven time modifications in this case:
a. On June 10, 2010, the parties filed a stipulation and proposed order requesting
that the Court change the time for the filing of dispositive motions, which the
Court granted on July 6, 2010.
b. On July 9, 2010, the parties filed a Joint Case Management Statement and
appeared for the Case Management Conference on July 16, 2010. At that time
the parties informed the court that they planned to meet and confer by August
31, 2010 to determine the issues remaining in this action and to propose a
timeline for the resolution of those issues. The parties met again on August 30,
2010 and discussed a tentative motion schedule as well as Defendant
Department of Justice Criminal Division’s final document production,

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NO. CV 09-5640 SI
DECLARATION OF KIMBERLY L. HERB IN SUPPORT OF STIPULATION TO AMEND BRIEFING SCHEDULE

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scheduled for September 30, 2010. Because Plaintiff needed time to review
Defendant’s final disclosures, on September 3, 2010, the parties filed a
stipulation and proposed order to continue the Case Management Conference.
The Court granted the motion on September 8, 2010 and continued the Case
Management Conference to October 26, 2010.
c. On October 19, 2011, the parties filed a stipulation and proposed order to
continue the Case Management Conference because the parties had submitted
a proposed schedule for resolution of the case. The Court granted the motion
on October 21, 2010 and continued the Case Management Conference to
January 14, 2011.
d. On January 7, 2011, the parties filed a stipulation and proposed order to change
the time of the Case Management Conference from January 14, 2011 to
January 28, 2011. EFF had filed a motion to consolidate the present action
with a related case, and the motion was scheduled for a hearing on January 28,
2011. The parties’ stipulation sought to consolidate the hearing with the Case
Management Conference. The Court granted the parties’ stipulation on
January 10, 2011.
e. On January 27, 2011, the parties filed a stipulation and proposed order to
change the time of the Case Management Conference from January 28, 2011 to
February 25, 2011. The Court granted EFF’s motion to consolidate and
ordered the parties to confer regarding a briefing schedule for the filing of
dispositive motions in the consolidated action. The parties sought to continue
the Case Management Conference so that they could negotiate the briefing
schedule. The Court granted the parties’ stipulation on January 28, 2011.
f. On February 25, 2011, during the Case Management Conference, the parties
presented the Court with a joint proposed briefing schedule for the filing of
dispositive motions. The proposed briefing schedule amended an earlier

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NO. CV 09-5640 SI
DECLARATION OF KIMBERLY L. HERB IN SUPPORT OF STIPULATION TO AMEND BRIEFING SCHEDULE

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schedule for the filing of such motions and was necessitated by the Court’s

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order consolidating cases. The Court granted the parties’ joint briefing

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schedule on March 1, 2011.

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g. On September 22, 2011, the parties stipulated to extend the briefing schedule

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for the filing of dispositve motions due to the unavailability of counsel for one

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of the defendant agencies. The Court granted the parties’ stipulation on

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September 27, 2011.
7.

While the requested enlargement will affect the present briefing schedule for this

case, the parties believe a short extension of the briefing schedule is warranted given the
circumstances. Furthermore, the parties believe this case will be resolved on summary judgment,
and thus this case can be resolved expeditiously after the filing of the parties’ motions.

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I declare under penalty of perjury that the foregoing is true and correct. Executed in
Washington, DC on December 1, 2011.
/s/ Kimberly L. Herb
Kimberly L. Herb

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NO. CV 09-5640 SI
DECLARATION OF KIMBERLY L. HERB IN SUPPORT OF STIPULATION TO AMEND BRIEFING SCHEDULE

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