RIVERA v. FEDERAL BUREAU OF INVESTIGATIONS (FBI) et al

Filing 15

MEMORANDUM OPINION and ORDER that Plaintiff's Motion to compel a Vaughn index is DENIED without prejudice; that the Scheduling Order will be modified accordingly. Signed by Magistrate Judge Douglas E. Arpert on 12/12/2013. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANGEL RIVERA,

:
:
Plaintiff,
:
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v.
:
:
:
FEDERAL BUREAU OF
:
INVESTIGATIONS, et al.,
:
:
Defendants.
:
____________________________________:
I.

Civil Action No. 12-04174 (PGS)

MEMORANDUM OPINION
AND ORDER

INTRODUCTION
This matter comes before the Court on the Motion of Plaintiff Angel Rivera to compel

Defendant Federal Bureau of Investigation to produce a Vaughn index [dkt. no. 11]. Defendant
opposes this Motion [dkt. no. 12]. After carefully considering the Parties’ submissions, and for
the reasons specified below, Plaintiff’s Motion is DENIED.
II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The facts and procedural history of this matter are well known to the parties and need not

be recited here at length. Briefly, Plaintiff is a prisoner serving a sentence in New Jersey State
Prison. See Pl.’s Compl., at ¶ 3, dkt. no. 1. On July 9, 2012, Plaintiff filed his Complaint under
the Freedom of Information Act (“FOIA”), seeking “all records pertaining to his own name.” Id.
at ¶ 5. However, Plaintiff did not serve the Complaint on Defendant until October 19, 2012. See
dkt. no. 3. Since that time, the parties have not engaged in discovery or motion practice. On
October 22, 2013, the Court issued a Scheduling Order, which directed the parties to complete
discovery by April 22, 2014, and dispositive motions by May 22, 2014. See dkt. no. 10.

Plaintiff now seeks an index of the documents and portions of documents withheld by
Defendant, pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). “A Vaughn index is an
itemized list compiled by the governmental agency which cross-references each withheld
document (or portion thereof) with a specific FOIA exemption and the relevant portions of the
agency’s nondisclosure justification.” Manna v. U.S. Dep’t. of Justice, 815 F. Supp. 798, 816
(D.N.J. 1993). See dkt. no. 11. Defendant opposes this Motion and correspondingly seeks
modification of the current Scheduling Order. See dkt. no. 12.
III.

DISCUSSION
Plaintiff argues that he is entitled to an index because it would be “useful” in narrowing

the issues and would enable Plaintiff to “test the basis for the government’s exemption claims.”
See Pl.’s Brief, at p. 2. In response, Defendant maintains that Plaintiff’s request for an index is
premature.

See Def.’s Brief, at p. 1.

Defendant also seeks modification of the current

Scheduling Order, maintaining that discovery should occur, if at all, after the filing of its
dispositive motion. Id. The Court will consider these issues in turn.
A. Plaintiff’s Request for a Vaughn Index
Ordinarily, courts do not require a defending agency to produce a Vaughn index before
the filing of a dispositive motion. See, e.g., Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993)
(noting that the plaintiff’s “early attempt in litigation of this kind to obtain a Vaughn Index…is
inappropriate until the government first has a chance to provide the court with information
necessary to make a decision on the applicable exemption.”); U.S. Comm. on Refugees v. Dep’t
of State, Civ. No. 91-3303, 1992 WL 35089 at *1 (D.D.C. Feb. 7, 1992) (finding that “the
preparation of a Vaughn index is unwarranted before the filing of dispositive motions in FOIA
action”). This is consistent with precedent from this District. See, e.g., Berger v. I.R.S., 487

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F.Supp.2d 482, 490, n.3 (D.N.J. 2007) (“The requirement for detailed declarations and Vaughn
indices is imposed in connection with a motion for summary judgment filed by a defendant in a
civil action pending in court.”) (quoting Schwartz v. U.S. Dep’t of Treasury, 131 F.Supp.2d 142,
147 (D.D.C.2000)); Small v. I.R.S., 820 F. Supp. 163, 164 n.1 (D.N.J. 1992) (noting that the
Court would consider the plaintiff’s motion for a Vaughn index as part of its opposition to
defendant’s summary judgment motion).
Given the applicable case law and the procedural posture of this case, the Court finds that
Defendant should have an opportunity to file a dispositive motion and supporting affidavits
before it is required to produce a Vaughn index. Depending on the sufficiency of Defendant’s
affidavits and the issues presented in the dispositive motion, the Court may decide that a Vaughn
index is, or is not, necessary. Accordingly, Plaintiff’s request for a Vaughn index is premature
prior to the filing of a dispositive motion.
B. Modification of the Scheduling Order
Defendant also argues that the Scheduling Order should be modified to allow dispositive
motions to proceed prior to discovery. The Court agrees. In a FOIA case, a court can only
determine the need for discovery after the defending agency files its dispositive motion and
supporting affidavits. Prior to that point, a court cannot properly evaluate whether a factual issue
exists sufficient to warrant discovery. See, e.g., Miscavige, 2 F.3d at 369; Simmons v. U.S.
Dep’t of Justice, 796 F.2d 709, 711-12 (4th Cir. 1986) (approving district court’s decision
denying discovery because agency affidavit filed with summary judgment motion made the need
for discovery “moot”); Murphy v. F.B.I., 490 F. Supp. 1134, 1137 (D.D.C. 1980) (noting that the
cases “establish a self-evident principle: a factual issue that is properly the subject of discovery
can arise only after the government files its affidavits and supporting memorandum of law.”).

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After Defendant files its motion and supporting affidavits Plaintiff may seek discovery if he finds
that the motion creates issues of fact. The Court will reserve judgment on any future discovery
dispute until such time as it occurs.
IV.

CONCLUSION AND ORDER
The Court having considered the papers submitted and the opposition thereto, and for the

reasons set forth above;
IT IS on this 12th day of December, 2013,
ORDERED that Plaintiff’s Motion to compel a Vaughn index [dkt. no. 11] is DENIED,
without prejudice, as set forth above.
ORDERED that the Scheduling Order will be modified accordingly.

s/ Douglas E. Arpert
DOUGLAS E. ARPERT
UNITED STATES MAGISTRATE JUDGE

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