CANNING v. U.S. DEPARTMENT OF JUSTICE
MEMORANDUM OPINION to the Order denying Plaintiff's Third Motion for Discovery, Plaintiff's Motion to Submit a Supplement to His Reply in Support of Partial Summary Judgment; and Plaintiff's Motion for Limited In Camera Review. Signed by Judge Gladys Kessler on 4/25/17. (CL)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 11-1295(GK)
U.S. DEPARTMENT OF JUSTICE,
On December 15, 2013,
the Parties completed briefing cross-
motions for summary judgment on Plaintiff's Freedom of Information
522 et seq. On January 2,
Discovery and for a Stay of the Case While Discovery Is Conducted
[Dkt. No. 66],
(2) a Motion to Submit a Supplement
to His Reply in Support of Partial Summary Judgment ("Mot. Supp.")
[Dkt. No. 67], and (3) a Motion for Limited In Camera Review ("Mot.
Plaintiff declined to file a Reply. For the reasons provided below,
the Court shall deny each of Plaintiff's motions.
Plaintiff's Third Motion for Discovery
In his Third Motion for Discovery,
Plaintiff contends that
Defendant's Motion for Summary Judgment.
discovery Plaintiff seeks concerns:
the presence of Lyndon
LaRouche's name on files provided to Plaintiff in response to his
Defendant's alleged nonFBI' s
this Court explained when it denied Plaintiff's Second
Motion for Discovery, discovery is rarely allowed in FOIA actions.
Wheeler v. C.I.A., 271 F. Supp. 2d 132, 129 (D.D.C. 2003). If the
Court deems the declarations of an agency deficient, then it may
request that the agency supplement those disclosures rather than
order discovery. Hall v. C.I.A.,
881 F. Supp. 2d 38,
This Court has already concluded that additional discovery
would not be appropriate in this case in view of the pending crossmotions for summary judgment. See Op. at 2 [Dkt. No. 44]. Because
the subjects of Plaintiff's most recent discovery motion have been
extensively briefed by the Parties, much of the discovery sought
may well be rendered moot after the Court resolves the pending
Motions for Summary Judgment. Moreover, Plaintiff admits that the
interrogatories and document requests"
discovery requests this
Court has twice denied. Not only is it clear that at least some of
the information that Plaintiff seeks is irrelevant or protected by
explanation as to why circumstances have changed since the Court's
previous denials so that discovery at this late stage in the case
Additional Discovery shall be denied.
Plaintiff's Motion to Submit a Supplement to His Reply
Plaintiff also requests that the Court permit him to file a
Supplement to his Reply in Support of his Cross-Motion for Partial
Summary Judgment. Plaintiff explains that "he discovered on a rereading of Mr. Hardy's Fourth Declaration ... that defendant has
substantial change in its factual account regarding the
2007 FOIA request to FBI Headquarters." Mot. Supp. at 1. Plaintiff
"would like to bring this to the Court's attention, in the event
it also missed that change on its first reading of the Fourth Hardy
seeks to file a
court "may grant leave to file a surreply at its discretion." Am.
Forest & Paper Ass'n, Inc. v. E.P.A., 1996 WL 509601, at *3 (D.D.C.
"The standard for granting leave to file a
whether the party making the motion would be unable to contest
matters presented to the court for the first time in the opposing
party's reply." Lewis v. Rumsfeld,
154 F.Supp.2d 56,
001); see also Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C.
(quoting Lewis, 154 F.Supp.2d at 61).
Plaintiff has not alleged that Defendant raised new arguments
or issues for the first time in his Reply in Support of its Motion
for Summary Judgment and Opposition to Plaintiff's Cross-Motion
for Partial Summary Judgment. On the contrary, Plaintiff explains
that he merely encountered information "on a re-reading of Mr.
"to bring ... to
Court's attention [.]" Mot. Supp. at 1. Even if Defendant had raised
in its motion,
last party to
respond pursuant to the summary judgment briefing schedule,
ample opportunity to address those arguments in his Reply Motion.
For this reason, and in light of the fact that the Court already
afforded Plaintiff an opportunity to supplement his Opposition
Motion, see Minute Entry of Sept. 10, 2013, the Court shall deny
Plaintiff's Motion to Submit a Supplement to His Reply in Support
of Partial Summary Judgment.
III. Plaintiff's Motion for Limited In Camera Review
Plaintiff moves the Court to conduct an in camera review of
demonstrates well-known or illegal investigative techniques. See
Mot. In Camera Review at 1.
Whether in camera inspection of contested FOIA material is
appropriate is a question that lies within the district court's
discretion. See Ctr.
for Auto Safety v. E.P.A.,
731 F.2d 16, 22
(D.C. Cir. 1984). "[W]hen the agency meets its burden [under FOIA]
by means of affidavits, in camera review is neither necessary nor
sufficient if they "show,
with reasonable specificity,
documents fall within the exemption," are not "conclusory ... too
vague or sweeping," and "there is no evidence in the record of
agency bad faith."
(citing Hayden v. N.S.A.,
608 F.2d 1381,
1387 (D.C. Cir. 1979)).
the Court has
agency bad faith.
found no evidence or allegations of
the appropriateness of the FBI's
techniques is an issue that has been well-briefed by the Parties
in their cross-motions for summary judgment.
In his Motion for
the Court will resolve the pending summary
judgment motions and deny Plaintiff's Motion for Limited In Camera
Discovery and for a Stay of the Case While Discovery is Conducted,
Motion to Submit a Supplement to His Reply In Support of Partial
Summary Judgment, and Motion for Limited In Camera Review shall be
denied. An Order shall accompany this Memorandum Opinion.
2 01 7
United States District Judge
Copies to: attorneys on record via ECF
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