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

Filing 22

ORDER by Magistrate Judge Maria-Elena James granting 21 Stipulation Re: Briefing Schedule. (rmm2S, COURT STAFF) (Filed on 5/13/2013)

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

STIPULATION RE:
BRIEFING SCHEDULE

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The parties agree, subject to the Court’s approval, to modify the current briefing schedule

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so that defendant will file a partial motion for summary judgment on Parts 2, 3 and 4 of

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plaintiffs’ FOIA request, pursuant to the current briefing schedule (see Dkt. No. 20), on or before

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June 6, 2013, and will file a partial motion for summary judgment on Part 1 of that request on or

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before August 15, 2013. Part 1 and Parts 2-4 of the FOIA request involve completely different

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legal and factual issues. Accordingly, and as set forth in more detail below, bifurcating the

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summary judgment motion will allow the Court to resolve the remaining legal issues relating to

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Parts 2-4 of the FOIA request in an expeditious manner while allowing the parties to continue to

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negotiate in good faith regarding Part 1 of the FOIA request, and potentially reduce the issues in

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dispute:

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1.

As set forth in the parties’ prior Case Management Statements, Plaintiffs

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

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Northern District of California pertaining to efforts to seek or obtain location information which

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helps ascertain the location of an individual or a particular device. Specifically, Part 1 of

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plaintiffs’ FOIA request seeks “[a]ll requests, subpoenas, and applications for court orders or

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warrants seeking location information since January 1, 2008.” Parts 2, 3, and 4 of plaintiffs’

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FOIA request seeks various other categories of documents relating to efforts to obtain location

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information.

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STIPULATION RE: BRIEFING SCHEDULE
Case No. 12-cv-4008-MEJ

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2.

On January 3, 2013, the parties filed a Joint Case Management Statement. See

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Dkt. No. 17, 01/03/2013. In that JCMS, the parties indicated that they had entered into a

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Stipulation regarding Parts 2, 3, and 4 of the FOIA request; that Stipulation was attached to the

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JCMS. See Dkt. No. 17, 01/03/2013. As to Part 1 of plaintiffs’ FOIA request, defendant

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indicated it had been working diligently to ascertain whether and, if so, how it could respond.

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Plaintiffs requested that the Court order defendant to propose a search protocol for Part 1 within

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30 days of the JCMS. See id. By Order dated January 4, 2013, this Court instructed defendant to

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provide plaintiffs with a proposed search protocol, or alternatively provide a written explanation
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as to why it should not be required to process Part 1 of the FOIA request, by February 3. Order,
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Dkt. No. 18, 01/04/2013.
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3.

In early February, defendant proposed a search protocol involving an electronic

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search of its Legal Information Office Network System (“LIONS”). Specifically, defendant
indicated that it can conduct a search of the “Caption” field within the LIONS database as a first

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step in identifying potentially responsive records. Plaintiffs raised several questions regarding

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that proposed search protocol including, among other things, whether a similar search could also

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be conducted in the “Comments” field of the LIONS database.

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4.

On February 21, the parties filed a JCMS. In that JCMS, the parties indicated that

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they had not yet reached a stipulation on the adequacy of defendants’ proposed search protocol

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regarding Part I of the request, but were continuing to meet and confer in good faith. Dkt. No.

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19, 02/21/2013. At that time, the parties proposed a schedule whereby defendant would produce

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non-exempt documents covered by the Stipulation as to Parts 2-4 of the FOIA request within 30

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days. Moreover, the parties proposed the following schedule for summary judgment motions:

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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

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June 27, 2013.
c.

Defendant’s reply and opposition (if any) shall be filed no later than July

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18, 2013.
STIPULATION RE: BRIEFING SCHEDULE
Case No. 12-cv-4008-MEJ

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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

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thereafter as the parties may be heard.

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Dkt. No. 19. Defendant also specifically noted that, should the Court order defendant to retrieve

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and process sealed matters following briefing on summary judgment, defendant reserved the

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right to claim any applicable exemptions regarding those matters. Dkt. No. 19. This Court

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adopted the parties’ proposed schedule by Order dated February 22, and set a hearing in this

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matter for August 22, 2013. See Order, Dkt. No. 20.
5.

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Pursuant to the parties’ agreed-upon schedule, defendant has produced non-

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exempt documents covered by the Stipulation as to Parts 2-4 of the FOIA request. Pursuant to

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the parties’ Stipulation, the only issue for this Court to resolve regarding Parts 2-4 of plaintiffs’

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FOIA request is the adequacy of various exemptions that defendant has claimed; plaintiffs do not

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challenge the adequacy of defendant’s searches pursuant to the Stipulation. Those issues

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regarding exemptions can be resolved by the Court on cross-motions for summary judgment

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pursuant to the current briefing schedule set by the Court.
6.

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The parties have continued to negotiate regarding Part 1 of the FOIA request.

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Specifically, and pursuant to plaintiffs’ inquiries, defendant has determined that it can also

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conduct a search in the “Comments” field of the LIONS database. Unfortunately, the process of

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ascertaining whether such an additional search could be conducted took substantially longer than

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expected. In addition, and in mid-March, plaintiffs requested that the defendant utilize an

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additional search term; defendant has complied with that request. These changes to the search

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parameters that defendant had originally identified has not only increased the number of

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potentially responsive matters, but also has required the devotion of substantial time and

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resources. 1 Among other things, because a search had already been conducted of the “Caption”

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field, conducting the new search required the de-duplication of entries, as well as numerous other

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database-related tasks. Moreover, defendant has been attempting to confirm the current status of

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Defendant also expanded slightly the date range of its LIONS search.

STIPULATION RE: BRIEFING SCHEDULE
Case No. 12-cv-4008-MEJ

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the matters identified in its LIONS searches by checking this Court’s docket via the Court’s CM-

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ECF system; as the number of potentially-responsive matters identified through the LIONS

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searches has doubled, it has taken a longer amount of time than anticipated to conduct that

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analysis.

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As a result of undertaking these additional tasks, defendant will not be in a

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position to file a summary judgment motion as to Part 1 of the FOIA request on the Court’s

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current schedule. Moreover, the parties continue to negotiate in good faith regarding Part 1 of

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the FOIA request; as indicated above, those discussions have been fruitful for both sides. At the

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same time, the parties agree that this Court’s resolution of the adequacy of defendant’s

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exemptions regarding Parts 2-4 is ripe for the Court’s review on the current briefing schedule.

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Finally, the legal and factual issues raised by Part 1 of the FOIA request are completely separate

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and distinct from the legal and factual issues raised by Parts 2-4 of the FOIA request.

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Accordingly, the parties respectfully request that the Court retain the current briefing schedule,

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but limit it to Parts 2-4 of the FOIA request. The parties also request that if plaintiffs file a cross-

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motion, the Court grant leave for the parties to file briefs up to 25 pages for all briefs, including

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reply briefs, in order to ensure that the parties have equal briefing space. The parties note that,

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even with 4 25-page briefs, briefing will still be substantially shorter than if plaintiffs filed, and

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the parties separately briefed, a cross-motion, which would entail a total of 6 briefs.

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8.

The parties further request that the Court set a separate partial summary judgment

briefing schedule, limited to Part 1 of the FOIA request, as follows:

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a.

Defendant’s opening brief shall be filed no later than August 15, 2013.

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b.

Plaintiffs’ cross-motion (if any) and opposition shall be filed no later than
September 5, 2013.

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c.

Defendant’s reply and opposition (if any) shall be filed no later than
September 26, 2013.

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d.

Plaintiffs’ reply (if any) shall be filed no later than October 10, 2013.

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e.

The hearing on this matter shall be held on October 24, 2013, or as soon

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thereafter as the parties may be heard.
STIPULATION RE: BRIEFING SCHEDULE
Case No. 12-cv-4008-MEJ

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Should the Court order defendants to retrieve and process sealed matters following briefing on

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summary judgment, defendant reserves the right to claim any applicable exemptions regarding

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those matters. The parties also request that if plaintiffs file a cross-motion, the Court grant leave

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for the parties to file briefs up to 25 pages for all briefs, including reply briefs, in order to ensure

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that the parties have equal briefing space. The parties note that, even with 4 25-page briefs,

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briefing will still be substantially shorter than if plaintiffs filed, and the parties separately briefed,

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a cross-motion, which would entail a total of 6 briefs.

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IT IS SO STIPULATED THIS 10TH DAY OF MAY, 2013:
/s/ Linda Lye
MICHAEL RISHER
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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Attorneys for Plaintiffs
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ELIZABETH J. SHAPIRO
Deputy Branch Director
Civil Division, Federal Programs Branch
/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]
Attorneys for Defendant

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STUART F. DELERY
Acting Assistant Attorney General
Civil Division

IT IS SO ORDERED THAT THE FOLLOWING BRIEFING SCHEDULE IS ADOPTED:
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For the parties’ forthcoming partial motions for summary judgment regarding

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Parts 2-4 of plaintiffs’ FOIA request, the briefing schedule shall remain as previously set by the

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Court, but limited to Parts 2-4 of the FOIA request, as follows:

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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

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June 27, 2013.

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STIPULATION RE: BRIEFING SCHEDULE
Case No. 12-cv-4008-MEJ

c.

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Defendant’s reply and opposition (if any) shall be filed no later than July

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18, 2013. If plaintiffs file a cross-motion, defendant may file a reply and

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opposition not to exceed 25 pages.
d.

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than August 8, 2013.

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e.

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Plaintiffs’ reply (if any), not to exceed 25 pages, shall be filed no later

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The hearing in this matter shall be held on August 22, 2013.

For the parties’ forthcoming partial motions for summary judgment regarding Part

1 of plaintiffs’ FOIA request, the briefing schedule shall be re-set as follows:

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a.

Defendant’s opening brief shall be filed no later than August 15, 2013.

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b.

Plaintiffs’ cross-motion (if any) and opposition shall be filed no later than
September 5, 2013.

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c.

Defendant’s reply and opposition (if any) shall be filed no later than

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September 26, 2013. If plaintiffs file a cross-motion, defendant may file a

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reply and opposition not to exceed 25 pages.

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d.

than October 10, 2013.

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Plaintiffs’ reply (if any), not to exceed 25 pages, shall be filed no later

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The hearing on this matter shall be held on October 24, 2013.

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_____________________________________
Judge Maria-Elena James
United States Magistrate Judge

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May 13, 2013
_____________________________________
Date

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STIPULATION RE: BRIEFING SCHEDULE
Case No. 12-cv-4008-MEJ

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DECLARATION PURSUANT TO LOCAL RULE 5-1(i)(3)
Pursuant to Local Rule 5-1(i)(3), the undersigned filer declares that concurrence in the
filing of this document has been obtained from the other signatory to this document.
I declare under penalty of perjury that the foregoing is true and correct. Executed this
10th day of May, 2013.

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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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STIPULATION RE: BRIEFING SCHEDULE
Case No. 12-cv-4008-MEJ