Henson v. Department of Health and Human Services et al

Filing 51

ORDER STRIKING 43 Requests to Admit filed by J. Donald Henson, Sr., DENYING WITHOUT PREJUDICE 44 MOTION to Compel filed by J. Donald Henson, Sr., DENYING WITHOUT PREJUDICE 45 MOTION to Void Aggregation Determination filed by J. Donald Henso n, Sr., DENYING WITHOUT PREJUDICE 46 MOTION to Compel filed by J. Donald Henson, Sr., GRANTING 49 Emergency MOTION for Protective Order to Stay Discovery filed by Sarah Kotler, Food & Drug Administration, Department of Health and Human Services, Federick J. Sadler. Defendants' Motion for Summary Judgment due by 3/30/2015. Signed by Magistrate Judge Donald G. Wilkerson on 2/18/15. (sgp)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
)
)
Plaintiff,
)
)
v.
)
DEPARTMENT OF HEALTH AND HUMAN)
SERVICES,
FOOD
&
DRUG)
ADMINISTRATION,
FEDERICK
J.)
)
SADLER, and SARAH KOTLER,
)
)
Defendants.
J. DONALD HENSON, SR.,

Case No. 3:14-cv-908-DRH-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are the Requests to Admit (Doc. 43), Motion to Compel
Production of a Vaughn Index (Doc. 44), Motion to Void Aggregation Determination (Doc. 45),
and Motion to Compel (Doc. 46) filed by Plaintiff, J. Donald Henson, Sr., and the Emergency
Motion for Protective Order (Doc. 49) filed by Defendants. Plaintiff’s Motions are DENIED
WITHOUT PREJUDICE, the Requests to Admit are STRICKEN, and Defendant’s Motion is
GRANTED.
BACKGROUND
This matter is proceeding on a Second Amended Complaint, filed on December 15, 2014
(Doc. 39), in which Plaintiff seeks relief pursuant to the Freedom of Information Act (FOIA).
Plaintiff not only seeks responses to the information requests that he submitted to the Food and
Drug Administration and the Department of Health and Human Services, but he also seeks a
finding that Defendants violated FOIA in various ways.
In Plaintiff’s three motions, he seeks various discovery, including a Vaughn Index.

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Plaintiff also has submitted Requests to Admit pursuant to Federal Rule of Civil Procedure 36
(Doc. 43). For the reasons set forth below, Plaintiff’s discovery requests are premature.
DISCUSSION
Federal Rule of Civil Procedure 26(b) provides that a party “may obtain discovery
regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . .”
While the materials that Plaintiff seeks may be relevant to his claim that the FDA and DHHS
improperly withheld documents, discovery in this Freedom of Information Act, 5 U.S.C. §552,
case is unique because discovery generally is not permitted until Defendants have filed a Vaughn
Index along with a motion for summary judgment. The Vaughn Index is usually an affidavit from
Defendants detailing the steps taken in responding to the Plaintiff’s FOIA request. Thus, the
Defendants assert that they are entitled, for good cause shown, to a protective order pursuant to
Rule 26(c).
FOIA provides that a person may file suit in order to challenge the improper withholding of
agency documents.
In such a case the court shall determine the matter de novo, and may examine the
contents of such agency records in camera to determine whether such records or
any part thereof shall be withheld under any of the exemptions set forth in
subsection (b) of this section, and the burden is on the agency to sustain its action.
Id.
The statute specifically allows for the Court to conduct an in camera inspection of documents
responsive to a FOIA request that are withheld based on a privilege. In considering such lawsuits,
a number of federal courts have discussed the propriety of allowing discovery prior to the filing of
a motion for summary judgment. The Tenth Circuit Court of Appeals has stated that:
Affidavits submitted by an agency [in support of a motion for summary judgment]
are accorded a presumption of good faith; accordingly, discovery relating to the
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search and the exemptions it claims for withholding records generally is
unnecessary if the agency’s submissions are adequate on their face. When this is
the case, the district court may forgo discovery and award summary judgment on
the basis of affidavits. In order to justify discovery once the agency has satisfied its
burden, the plaintiff must make a showing of bad faith on the part of the agency
sufficient to impugn the agency’s affidavits or declarations, or provide some
tangible evidence that an exemption claimed by the agency should not apply or
summary judgment is otherwise inappropriate.
Liverman v. Office of Inspector General, 139 Fed.Appx. 942, 945 (10th Cir. 2005)
(quotation marks and citations omitted).
This conclusion and procedure was directly quoted from a Second Circuit Court of Appeals case,
Carney v. United States Department of Justice, 19 F.3d 807, 812–813 (2nd Cir. 1994). See also
Simmons v. United States Department of Justice, 796 F.2d 709, 711-712 (4th Cir. 1986) (noting
that “the district court has the discretion to limit discovery in FOIA cases and to enter summary
judgment on the basis of agency affidavits in a proper case”); Allen v. United States Secret Service,
335 F.Supp.2d 95, 99 (D.D.C. 2004) (“It is well-settled in a FOIA action, the court must deny
discovery when the affidavits are sufficiently detailed and submitted in good faith . . . .” (citation
omitted)). Each case follows the same procedure in FOIA cases: the Defendant files a motion for
summary judgment and only thereafter is discovery permissible. Discovery in this matter also
will not occur (if at all) until after Defendants file their motion for summary judgment. After
Defendants file their motion for summary judgment and supporting affidavit, Plaintiff may seek
discovery through Federal Rule of Civil Procedure Rule 56(d). Thus, if Plaintiff believes, and
makes a showing, that the affidavit(s) provided by Defendants are defective or otherwise
insufficient, he may petition the District Court to conduct whatever discovery he believes is
necessary.
Defendants are accordingly ORDERED to file their Motions for Summary Judgment by
March 30, 2015.
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CONCLUSION
For the foregoing reasons, the Requests to Admit are STRICKEN (Doc. 43), the Motion to
Compel Production of a Vaughn Index is DENIED WITHOUT PREJUDICE (Doc. 44), the
Motion to Void Aggregation Determination is DENIED WITHOUT PREJUDICE (Doc. 45),
the Motion to Compel is DENIED WITHOUT PREJUDICE (Doc. 46), and the Emergency
Motion for Protective Order is GRANTED (Doc. 49). Defendants shall file their Motions for
Summary Judgment by March 30, 2015.
DATED: February 18, 2015

DONALD G. WILKERSON
United States Magistrate Judge

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