Brewer v. United States Department of Justice et al

Filing 39

Memorandum Opinion and Order re: 23 Defendants' Motion for Protective Order to Stay Discovery and Brief in Support. Defendants' motion for protective order is GRANTED, and discovery is stayed until after summary judgment motions have been filed. The scheduling order dated 6/26/2018 is hereby VACATED. Defendants shall file their motions for summary judgment within 30 days of the date of this order. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 11/20/2018) (mcrd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
STEVEN BREWER,
Plaintiff,
vs.
UNITED STATES DEPARTMENT
OF JUSTICE, et al.,
Defendants.

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§ Civil Action No. 3:18-CV-1018-B-BH
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§ Referred to U.S. Magistrate Judge1

MEMORANDUM OPINION AND ORDER
Before the Court is Defendants’ Motion for Protective Order to Stay Discovery and Brief in
Support, filed September 20, 2018 (doc. 23). Based on the relevant filings and applicable law, the
motion is GRANTED.
I. BACKGROUND
Steven Brewer, a federal inmate (Plaintiff), filed suit against the United States Department of
Justice and the National Personnel Records Center (collectively Defendants), under the Freedom of
Information Act (FOIA), 5 U.S.C. § 552 et seq, on April 23, 2018. (See doc. 3 at 1.)2 He seeks
production of documents concerning the appointment of the federal prosecutors who brought criminal
indictments against him that resulted in federal criminal convictions. (See id. at 1-3); see also United
States v. Brewer, No. 3:96-CR-293-K, 3:96-CR-294-K (N.D. Tex.). Defendants answered the lawsuit
on June 6, 2018. (See doc. 12.)
After the parties filed their scheduling proposals, a standard scheduling order was issued on
June 26, 2018. (See docs. 15, 21.) It set deadlines for completion of discovery and filing of discovery
motions. (See doc. 21 at 1.) Defendants contend that Plaintiff served them by mail with written
1

By Standing Order of Reference filed April 27, 2018, this case has been referred for full case management.

2

Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page
numbers at the bottom of each filing.

discovery requests on August 21, 2018; Plaintiff contends that he served discovery on August 14,
2018. (See doc. 23 at 4-5; doc. 33 at 2.) On September 20, 2018, Defendants moved for a protective
order staying all discovery until after summary judgment motions have been filed on grounds that
“[d]iscovery at this time, if ever, is not appropriate.” (doc. 23 at 3.)
II. ANALYSIS
Defendants argue that courts do not generally allow discovery in FOIA cases until after
motions for summary judgment have been filed. (Id. at 6-7.)
The FOIA requires government agencies to make their records available to the public and
embodies a general philosophy of full disclosure by the agency. See 5 U.S.C. § 552; Halloran v.
Veterans Admin., 874 F.2d 315, 318 (5th Cir. 1986). Many of these records must be published in the
Federal Register; the rest may be requested from an agency. 5 U.S.C. § 552(a). Upon receipt of a
request for records, an agency must make the requested records promptly available to the requesting
party, unless the records fall under one of nine exemptions listed in the FOIA. 5 U.S.C. § 552(a) and
(b). A district court can enjoin an agency from withholding agency records and can order the
production of those records if they do not fall under any of the nine exemptions. 5 U.S.C. §
552(a)(4)(B). The agency bears the burden of establishing that the withheld documents fall within a
claimed exemption. Batton v. Evers, 598 F.3d 169, 175 (5th Cir. 2010).
In FOIA actions, courts routinely delay discovery until after the government has filed a motion
for summary judgment and has had a chance to present the information necessary to make a decision
on the applicable exemptions. See Driggers v. United States, No. 3:11-CV-229-N, 2011 WL 2883283,
at *1 (N.D. Tex. July 18, 2011) (citing Lane v. Dep’t of Interior, 523 F.3d 1128, 1134 (9th Cir. 2008);
Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993); Rugiero v. U.S. Dep’t of Justice, 257 F.3d 534,
544 (6th Cir. 2001)); see also Schiller v. I.N.S., 205 F.Supp. 2d 648, 653 (W.D. Tex. 2002) (noting that

discovery is not typically a part of a FOIA case). The government may present the information in the
form of detailed affidavits which are entitled to a presumption of good faith, or a more detailed
“Vaughn index,” which is a means by which agencies describe the responsive documents and the
reasons for redactions or withholdings in enough detail for the court to assess the claims for
exemptions. Batton, 598 F.3d at 178-79; Rugiero, 257 F.3d at 544. Only after the government has
filed its “affidavits and supporting memorandum of law” can a factual issue arise that is properly the
subject of discovery. Driggers, 2011 WL 2883283, at *1 (citing Murphy v. F.B.I., 490 F.Supp. 1134,
1137 (D.D.C. 1980)). Even where discovery is permitted, it is “sparingly granted” and most often
limited to investigating the scope of the agency search for responsive documents. Schiller, 205
F.Supp. 2d at 653; Driggers, 2011 WL 2883283, at *1; Exxon Mobile Corp. v. United States Dept. of
Labor, No. 09-6732, 2010 WL 4668452, at * 5-6 (E.D. La. Nov. 4, 2010) (quotations omitted).
Here, Plaintiff’s discovery seeks detailed information from the withheld records. Allowing
Plaintiff to conduct this discovery before Defendants file a motion for summary judgment would
essentially provide the relief he seeks through this lawsuit. Only after they file a motion for summary
and supporting affidavits will the Court have the information necessary to appropriately limit the scope
of discovery or forgo it entirely. See Driggers, 2011 WL 2883283, at *1-2 (citing Taylor v. Babbitt,
673 F.Supp. 2d 20, 23 (D.D.C. 2009) (“Postponing discovery until the government has submitted its
dispositive motion and supporting documents allows the court to obtain information necessary to
appropriately limit the scope of discovery or forgo it entirely”)).
III. CONCLUSION
Defendants’ motion for protective order is GRANTED, and discovery is stayed until after
summary judgment motions have been filed. The scheduling order dated June 26, 2018 is hereby
VACATED. Defendants shall file their motions for summary judgment within 30 days of the date

of this order.
SO ORDERED on this 20th day of November, 2018.

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IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE