COLE v. FEDERAL EMERGENCY MANAGEMENT AGENCY (2022)

ORDER ON DISCOVERY

The parties in this case have been engaged in decade-long dispute over a request for government records related to the terrorist attacks on September 11, 2001. In 2011, David Cole (“Plaintiff”) sought records from the Federal Emergency Management Agency (“FEMA”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. ECF No. 1 at 2. After several years of unsatisfactory responses from the government, in 2015 Plaintiff brought suit against FEMA and the National Institute of Standards and Technology (“NIST”) and sought an injunction compelling production of the records. See generally ECF No. 1. Although Plaintiff's FOIA request was directed at FEMA, NIST evidently possessed documents responsive to the request. Id. In March 2017, Plaintiff moved for limited discovery to determine the adequacy of the government's search for the documents he requested. See ECF No. 15-1. Judge Sullivan denied the motion as premature, but explained that the Court “may reconsider [Plaintiff's] request for discovery at the summary judgment stage” if the Defendants’ affidavits proved “insufficient.” ECF No. 19 at 9–10. The government's subsequent representations indeed proved insufficient. In a Report & Recommendation issued in March 2020, the undersigned recommended that Plaintiff be permitted to engage in limited discovery “but only to the extent that it seeks discovery regarding Defendants’ searches.” ECF No. 37 at 20. Judge Sullivan agreed and ordered the parties to submit a “plan for obtaining discovery limited to the adequacy of the Defendants’ searches, excluding the question of whether responsive records were stored in the Region II warehouses.” ECF No. 48 at 41.

The parties, however, were unable to agree on a singular framework for discovery, and instead submit competing proposals to the Court. See ECF No. 49. Plaintiff desires 20 interrogatories, 20 requests for production, and potentially 20-plus depositions. Id. at 2–7. Plaintiff's contemplated deponents include not just the individuals who searched for the documents he requested, but also persons who had a hand in creating those documents nearly 20 years ago and persons who handled those documents in the intervening years. Id. at 3–4. In Plaintiff's proposal, this discovery would focus on the “creation, storage, handling, inventory, transfer, search for, and ultimate disposition” of the requested records, including the records of a FEMA contractor. Id. at 4–5.

Defendants, for their part, are satisfied with 20 interrogatories—with 10 directed at FEMA and 10 at NIST—but otherwise disagree with Plaintiff's discovery plan. Id. at 8. Requests for production are not necessary, Defendants say, because the government has already produced “relevant available documentation regarding its searches.” Id. at 11. As to depositions, Defendants prefer two—one Rule 30(b)(6) deposition of a representative from each of the two agencies involved. Id. at 8–9. Finally, Defendants contend that the scope of Plaintiff's contemplated discovery goes “beyond what the Court has authorized and what is even legally or practically feasible” and should instead be narrowly focused on the adequacy of the government's search. Id. at 9.

The undersigned permitted the parties to file short legal memoranda supporting their requests, see Minute Order (Jan. 11, 2022), ECF Nos. 50 and 51, and held a hearing on February 4, 2022. Having considered Plaintiff's original motion for discovery, Judge Sullivan's initial denial of that motion, the Report & Recommendation, Judge Sullivan's memorandum opinion adopting the Report & Recommendation, the parties’ respective discovery proposals, and the arguments made at the hearing, the undersigned will permit limited discovery focused on the adequacy of the Defendants’ search for documents responsive to Plaintiff's FOIA request, as further described in this Order.

Discovery in FOIA cases is “rare,” and when, as here, it is granted its scope is heavily circumscribed. In re Clinton, 973 F.3d 106, 110, 116–17 (D.C. Cir. 2020). Typically, discovery in FOIA matters is “limited to the scope of the agency's search and its indexing and classification procedures.” Heily v. U.S. Dep't of Com., 69 F. App'x 171, 174 (4th Cir. 2003); see also Voinche v. FBI, 412 F. Supp. 2d 60, 71 (D.D.C. 2006) (explaining that discovery in FOIA matters is “limited to the adequacy of the agency's search and similar matters”); Pub. Citizen Health Research Grp. v. FDA, 997 F. Supp. 56, 72 (D.D.C. 1998) (holding that FOIA discovery would be limited to “investigating the scope of the agency search for responsive documents, the agency's indexing procedures, and the like”), rev'd in part on other grounds, 185 F.3d 898 (D.C. Cir. 1999); Church of Scientology v. IRS, 137 F.R.D. 201, 202 (D. Mass. 1991) (explaining that discovery in a FOIA case is limited to “certain factual issues, including the scope of the agency's search, its indexing and classification procedures”). So, “[w]hether a thorough search for documents has taken place and whether withheld items are exempt from disclosure are permissible avenues for discovery.” Niren v. Immigration & Naturalization Serv., 103 F.R.D. 10, 11 (D. Or. 1984) (concluding that the scope of discovery is limited in FOIA cases to “whether complete disclosure has been made by the agency in response to an individual's request for information.”). Other appropriate lines of inquiry include how agency employees “conducted a search, which files were reviewed, what search terms were used, how the documents were produced to [the agency's FOIA specialist], whether any documents were withheld from production, who made the decisions about withholding, and other relevant questions.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1246 (11th Cir. 2008).

Here, Plaintiff's proposal to depose the individuals who two decades ago created the documents he seeks, and to inquire into how they handled or stored those records, runs outside these bounds. It is not the purpose of the limited discovery the Court has permitted for Plaintiff to conduct his own search for the documents responsive to his FOIA request. Rather, discovery should be focused solely on the adequacy of the Defendants’ search for those documents. Indeed, Plaintiff's proposal extends far beyond what was permitted in Citizens for Responsibility & Ethics in Washington v. U.S. Department of Justice, No. CIV. 05-2078, 2006 WL 1518964 (D.D.C. June 1, 2006)—which the undersigned cited favorably in the Report & Recommendation. In that case, Judge Sullivan permitted depositions of a limited number of individuals, including the “individual ․ responsible for assembling documents responsive to [the plaintiff's] FOIA requests” and the “attorney in charge of the [Department of Justice's] Civil Division's FOIA processing.” Id. at *1. Similarly, in Miccosukee Tribe of Indians, the plaintiff was permitted to take depositions of “the chief responsible for supervising FOIA search efforts and maintaining the [agency's] records,” “the EPA FOIA Specialist [who] had conducted the search,” and an “environmental scientist who helped with the FOIA search.” 516 F.3d at 1240–42. Likewise, the Tenth Circuit concluded that certain depositions requested in a FOIA matter were improper because the putative deponents “clearly have no knowledge regarding FBI procedures in filing and searching for records—which are the only relevant matters in FOIA litigation challenging an agency's records search.” Trentadue v. FBI, 572 F.3d 794, 808 (10th Cir. 2009).

Thus, the scope of Plaintiff's discovery must be limited to the adequacy of FEMA and NIST's search for the documents he requested. Plaintiff may investigate what the Defendants actually did to search for the records, and should necessarily focus on the agency personnel who conducted the searches or those who advised them (e.g., subject matter experts). Among the possible areas Plaintiff may probe include who searched for responsive documents and what they were told to look for; where the government searched for responsive documents and why it searched in those areas (and conversely, why it did not search in other areas); the methodology the government used in conducting the searches (e.g., search terms, etc.); and the records and information the government relied upon to decide where to search (e.g., document and archive indices and inventories) or which reflect the government's searches or search methodologies.

As to the specific types of discovery to be permitted, the undersigned finds that interrogatories, requests for production, and depositions are all appropriate in this case. See, e.g., Jud. Watch v. U.S. Dep't of State, No. CV 13-1363, 2016 WL 11530536, at *5–6 (D.D.C. May 4, 2016) (permitting depositions and interrogatories in FOIA case to determine the adequacy of the agency's search for documents); Long v. U.S. Dep't of Just., 10 F. Supp. 2d 205, 210 (N.D.N.Y. 1998) (“The plaintiffs’ demands for interrogatories and requests for production of documents are appropriate to test the adequacy of the search.”). The Court will permit a total of 20 interrogatories that Plaintiff is free to allocate between FEMA and NIST in the manner he believes is best suited to lead to the disclosure of relevant, non-privileged information. As to requests for production, the undersigned recognizes that the Defendants have already turned over a significant number of documents to the Plaintiff concerning their searches. ECF No. 49 at 11. However, it is unclear whether they have turned over all documents that may be relevant to assessing the adequacy of their searches. The undersigned therefore will permit Plaintiff to propound a total of 10 requests for documents which Plaintiff is free to split between FEMA and NIST as he chooses. Finally, the undersigned shares Defendants’ concern that Plaintiff's initial request for up to 20 depositions is unduly burdensome and not proportional to the needs of this case, especially when considering that discovery in FOIA matters is to be “limited.” Id. And yet the Court is cognizant that two depositions may be insufficient depending on how many persons were involved in the search for the documents Plaintiff requested. Thus, the undersigned will adopt a hybrid of Plaintiff and Defendants’ proposals with respect to depositions: Following the exchange of written discovery, Plaintiff will be permitted to conduct two Rule 30(b)(6) depositions—one directed at FEMA and one at NIST. If after those depositions the Plaintiff believes further depositions are necessary, and the parties are unable to reach agreement in that regard, Plaintiff may seek leave of the Court to permit further depositions, which Defendants may oppose. The Court encourages the parties to work collaboratively in good faith to make the Rule 30(b)(6) depositions as efficient and productive as possible so as to avoid the need for further depositions.¹

Accordingly, it is hereby

ORDERED that Plaintiff shall be limited to the following discovery requests consistent with the scope of discovery set forth in this Order: a total of 20 interrogatories and 10 document requests to be allocated between FEMA and NIST as Plaintiff chooses, and two Rule 30(b)(6) depositions. It is further

ORDERED that the parties shall appear for a status conference before the Court on Friday, May 6, 2022 at 11:00 a.m. Eastern time.

SO ORDERED.

FOOTNOTES

1.   By agreement of the parties, Plaintiff and Defendants will meet and confer with respect to (i) the identity of the Rule 30(b)(6) deponents and (ii) the topics to be covered during the depositions.

G. Michael Harvey, United States Magistrate Judge