Harrison v. Executive Office for United States Attorneys

Filing 13

ORDER denying 10 Motion for Leave to Take Discovery from Defendant. Plaintiff seeks leave to conduct discovery to obtain the records he believes he has been improperly denied under FOIA. Plaintiff is not entitled to this discovery at this stage of the case. Therefore, the Motion for Leave to Take Discovery is denied. Signed by Magistrate Judge Bernard G. Skomal on 11/16/2016. (All non-registered users served via U.S. Mail Service)(kcm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID SCOTT HARRISON,

Case No.: 16cv1310 JLS (BGS)
Plaintiff,

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v.

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ORDER DENYING MOTION FOR
LEAVE TO TAKE DISCOVERY
FROM DEFENDANT

EXECUTIVE OFFICE FOR UNITED
STATES ATTORNEYS,

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[Docket No. 10]

Defendant.

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Pro se Plaintiff David Scott Harrison brought this action pursuant to the Freedom

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of Information Act (“FOIA”). (Docket No. 1.) Defendant United States filed an Answer

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on September 28, 2016. (Docket No. 8.) On October 17, 2016, Plaintiff filed a Motion

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for Leave to Take Discovery.1 (Docket Nos. 10.)

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In February 2015, Plaintiff sent a letter to the Hon. Larry Burns in which he

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asserted that Judge Burns should remedy Plaintiff’s wrongful convictions because he was

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the prosecutor on the underlying conviction. (Compl., Ex. A.) Assistant United States

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Attorney Michael Wheat sent a letter, dated March 10, 2015, in response in which he

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Defendant has since filed a Motion for Summary Judgment that has been set for briefing
before the district judge. (Docket No. 11.)
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16cv1310 JLS (BGS)

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referenced providing Plaintiff’s letter to Judge Burns and his response to it to

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investigative agencies. (Compl., Ex. B.) Generally, Plaintiff’s FOIA request sought

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records and documents identifying those investigative agencies. (Compl., Ex. E.) The

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Executive Office for United States Attorneys informed Plaintiff that no responsive

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documents were located and this litigation followed. (Compl., Ex. O.) Plaintiff now

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seeks to use discovery, specifically, interrogatories, requests for production, and

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admissions to locate records and documents identifying the investigative agencies

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referenced in the March 10, 2015 letter. (Mot. for Leave to Take Discovery at 2-3.)

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“While ordinarily the discovery process grants each party access to evidence, in

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FOIA and Privacy Act cases discovery is limited because the underlying case revolves

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around the propriety of revealing certain documents.” Lane v. Dep’t of the Interior, 523

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F.3d 1128, 1134 (9th Cir. 2008) (citing Wiener v. FBI, 943 F.2d 972, 977 (9th Cir.

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1991)). “Courts routinely delay discovery until after summary judgment in such cases

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and this circuit has affirmed denials of discovery where . . . the plaintiff’s requests

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consisted of ‘precisely what defendants maintain is exempt from disclosure to plaintiff

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pursuant to FOIA.’” Id. at 1134-35 (internal citations omitted) (quoting Pollard v FBI,

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705 F.2d 1151, 1154 (9th Cir. 1983)). Here, Plaintiff seeks leave to conduct discovery to

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obtain the records he believes he has been improperly denied under FOIA. Plaintiff is not

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entitled to this discovery at this stage of the case. Therefore, the Motion for Leave to

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Take Discovery is DENIED.

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IT IS SO ORDERED.

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Dated: November 16, 2016

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16cv1310 JLS (BGS)