American Civil Liberties Union of Northern California et al v. Department of Justice

Filing 20

ORDER -Motions due by 6/6/2013. Cross Motions due by 6/27/2013. Motion Hearing set for 8/22/2013. Signed by Judge Maria-Elena James on 2/22/2013. (cdnS, COURT STAFF) (Filed on 2/22/2013)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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AMERICAN CIVIL LIBERTIES UNION
OF NORTHERN CALIFORNIA;
SAN FRANCISCO BAY GUARDIAN,

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Plaintiffs,
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v.
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DEPARTMENT OF JUSTICE
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Defendant.

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No. 12-cv-4008-MEJ

JOINT CASE
MANAGEMENT STATEMENT
AND ORDER THEREON

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The parties to the above-entitled action jointly submit this JOINT CASE

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MANAGEMENT STATEMENT pursuant to this Court’s January 4, 2013 Case Management

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Order. This is a lawsuit under the Freedom of Information Act by Plaintiffs American Civil

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Liberties Union of Northern California and San Francisco Bay Guardian seeking information

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about the government’s effort to seek or obtain location information from electronic devices.

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On October 25, 2012, the parties filed an Initial Case Management Statement addressing

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each of the items required in the Standing Order for All Judges of the Northern District of

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California. On January 3, 2013, the parties filed an updated Case Management Statement

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providing an update on scheduling issues. The parties have no further updates or changes with

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respect to the items previously addressed in their Initial Case Management State as to issues 1

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(jurisdiction and service), 2 (facts), 3 (legal issues), 4 (motions), 5 (amendment of pleadings), 6

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(evidence preservation), 7 (disclosures), 8 (discovery), 9 (class actions), 10 (related cases), 11

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(relief), 12 (settlement and ADR), 13 (consent to magistrate judge for all purposes), 14 (other

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references), 15 (narrowing of issues), 16 (expedited trial procedure), 18 (trial), 19 (disclosure of

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non-party interested entities or persons), and 20 (other).

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(scheduling) below.

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Case No. 12-cv-4008-MEJ

The parties address item 17

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17. Scheduling
As set forth in the parties’ prior Case Management Statements, Plaintiffs submitted a

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four-part FOIA request seeking records of the U.S. Attorney’s Office for the Northern District of

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California pertaining to efforts to seek or obtain location information which helps ascertain the

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location of an individual or a particular device.

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Items 2, 3, and 4 of plaintiffs’ FOIA request: At the time the parties filed the Initial Case
Management Statement, they were in the process of negotiating a Stipulation regarding the scope

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and procedures to be used by defendant in locating documents responsive to Items 2, 3 and 4 of
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plaintiffs’ FOIA request. In conjunction with the filing of the January 3, 2013 Case Management
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Statement, the parties executed that Stipulation, a copy of which was appended to the January 3,
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2013 CMS. Defendant stated in the January 3, 2013 Case Management statement that it “can
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and will now undertake a search consistent with that Stipulation,” and “will … expedite the
processing of Parts 2-4 of Plaintiffs’ FOIA request.”
Item 1 of plaintiffs’ FOIA request: In addition to the 3 items addressed by the parties’

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Stipulation, Plaintiffs’ FOIA request includes an additional item, for “[a]ll requests, subpoenas,

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and applications for court orders or warrants seeking location information since January 1,

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2008.” In their prior Case Management Statements, the parties explained their respective

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positions with respect to whether the request is or is not burdensome.

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The Court’s January 4, 2013 Case Management Order instructed Defendant to provide

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Plaintiffs with a proposed search protocol for Item 1 by February 3, 2013 and ordered the parties

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to meet and confer within 7 days thereafter. On February 1, 2013, Defendant proposed a search

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protocol, involving an electronic search of its Legal Information Office Network System

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(LIONS). On February 5, 2013, the parties held a telephonic meet and confer and discussed

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Defendant’s proposed search protocol, Plaintiffs’ factual questions about LIONS and the

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proposed search, and Defendant’s concern that most of the documents potentially responsive to
Plaintiffs’ FOIA request are under seal. On February 6, 2013, Plaintiffs sent Defendant a letter

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setting forth in writing factual questions about the LIONS database in an effort to determine
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Case No. 12-cv-4008-MEJ

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whether Plaintiffs would be able to stipulate to the adequacy of Defendant’s proposed search

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protocol, and asking Defendant to clarify its position with respect to the effect of sealing orders

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on its obligation to process this FOIA request.

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As of the filing of this Case Management Statement, the parties have not reached a

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stipulation on the adequacy of Defendants’ proposed search protocol but are continuing to meet

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and confer in good faith.

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Proposed schedule: The parties propose the following schedule:

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1) Within 30 days of the filing of this Case Management Statement, Defendant will produce
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non-exempt documents covered by the Stipulation reached by the parties as to Items 2, 3,
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and 4 of the FOIA request.
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2) The parties will thereafter meet and confer in an effort to narrow the issues in dispute, but
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anticipate that at least some issues – such as the impact of sealing orders on Defendant’s
obligation to process Item 1 of the FOIA request – will require resolution by the Court.
3) The parties propose the following schedule for cross-motions for summary judgment:

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a. Defendant’s opening brief shall be filed no later than June 6, 2013.

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b. Plaintiffs’ cross-motion (if any) and opposition shall be filed no later than June

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27, 2013.
c. Defendant’s reply and opposition (if any) shall be filed no later than July 18,
2013.

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d. Plaintiffs’ reply (if any) shall be filed no later than August 8, 2013.

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e. The hearing in this matter shall be held on August 22, 2013, or as soon thereafter

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as the parties may be heard.

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Should this Court order Defendant to retrieve and process these sealed matters following briefing

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on summary judgment, Defendant reserves the right to claim any applicable exemptions

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regarding those matters.

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If the Court adopts the parties’ proposed schedule, they see no need for the Court to hold
a Case Management Conference.

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DATED: February 21, 2013

Respectfully submitted,
/s/ Linda Lye
American Civil Liberties Union
Foundation of Northern California
39 Drumm Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

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Attorney for Plaintiffs
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STUART F. DELERY
Principal Deputy Assistant Attorney General,
Civil Division

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ELIZABETH J. SHAPIRO (D.C. Bar No. 418925)
Deputy Branch Director

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/s/ Brad P. Rosenberg
BRAD P. ROSENBERG (D.C. Bar No. 467513)
Trial Attorney
U.S. Department of Justice,
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, D.C. 20044
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

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