Anderson et al v. McCarthy et al

Filing 86

ORDER (1) REQUIRING IN CAMERA REVIEW OF DOCUMENTS; AND (2) DENYING LEAVE TO CONDUCT LIMITED DISCOVERY. Signed by Judge Alsup on 9/7/2016. (whalc2, COURT STAFF) (Filed on 9/7/2016)

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6
FOR THE NORTHERN DISTRICT OF CALIFORNIA
7
8
9

JEFF ANDERSON, ET AL.,

11
For the Northern District of California

United States District Court

10

No. C 16-00068 WHA

Plaintiffs.

ORDER (1) REQUIRING IN
CAMERA REVIEW OF
DOCUMENTS; AND (2)
DENYING LEAVE TO
CONDUCT LIMITED
DISCOVERY

v.

12
13
14

GINA McCARTHY, ET AL.,
Defendants.

15

/

16
17

The Court is in receipt of plaintiffs’ motion to compel completion of the administrative

18

record and production of a privilege log. This order concludes that this issue is best decided in

19

the context of the overall motion for summary judgment. The current deadline for filing

20

summary judgment motions of September 16, 2016, will remain in place. In their summary

21

judgment briefs, plaintiffs shall lay out any alleged shortfalls in the administrative record. Then

22

the Court will be in a position to review any alleged gaps in the administrative record in the

23

context of the issues to be decided.

24

By NOON ON OCTOBER 4, 2016, the EPA shall submit for in camera review and under

25

seal the documents that relate to the development of the guidance that are not a part of the

26

administrative record, including pre-decisional and deliberative documents. The Court will then

27

determine the extent to which these documents should be part of the administrative record.

28

As to plaintiff’s motion for limited discovery on the failure to act claim, the motion for
summary judgment should be based on the administrative record. In the course of briefing,

1

counsel can explain why further discovery is needed (even though discovery is the exception

2

rather than the rule with respect to review of agency action). The motion for limited discovery is

3

therefore DENIED WITHOUT PREJUDICE.

4

This order does not reach the issue of whether it was appropriate to file this motion as an

5

administrative motion under Local Rule 7-11.

6

No further extensions shall be granted.

7
8

IT IS SO ORDERED.

9
Dated: September 7, 2016.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2