285 F. Supp. 3d 73
D.C. Cir.2018Background
- Cole's May 2011 FOIA request to FEMA sought WTC 1–7 raw data and related materials.
- FEMA did not produce any documents until April 2016, years after the request and before suit.
- NIST later advised it had 3,789 responsive pages; FEMA notified ~490,000 pages at NARA but indicated no further responsive material.
- In 2016, Cole identified missing responsive records not produced by FEMA; discrepancies noted in productions and inventories.
- FEMA proposed region 2 search; FEMA later said no Region 2 archive existed and that no further records would be produced.
- March 2017: Cole moved for limited discovery; the court denied discovery as premature pending summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether limited discovery is warranted in this FOIA action | Cole argues discovery is appropriate to probe FEMA's search. | FEMA argues discovery is rare in FOIA and unwarranted before summary judgment. | Denied; discovery not warranted at this stage. |
| Whether FEMA's search was conducted in good faith and adequately described | Cole questions completeness and consistency of FEMA's search. | FEMA contends affidavits support a reasonable search. | Not resolved; discovery denied pending summary judgment. |
| Whether discovery should occur before the government moves for summary judgment | Cole seeks discovery to oppose anticipated summary judgment. | Discovery is ordinarily after a motion for summary judgment; premature here. | Denied; may be reconsidered after government moves for summary judgment. |
Key Cases Cited
- Weisberg v. Dep't of Justice, 627 F.2d 365 (D.C. Cir. 1980) (limits on discovery; agency affidavits must be specific)
- Murphy v. F.B.I., 490 F.Supp. 1134 (D.D.C. 1980) (discovery in FOIA cases often tied to summary judgment posture)
- Taylor v. Babbitt, 673 F.Supp.2d 20 (D.D.C. 2009) (discovery in FOIA after government affidavits; context for timing)
- SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197 (D.C. Cir. 1991) (standard for denying discovery when affidavits are detailed and good-faith)
- Landmark Legal Found. v. E.P.A., 959 F.Supp.2d 175 (D.D.C. 2013) (discovery in FOIA exceptional circumstances)
- Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312 (D.C. Cir. 2006) (summary judgment affidavits; applicability to discovery decisions)
- North v. U.S. Dep't of Justice, 729 F.Supp.2d 74 (D.D.C. 2010) (arguments about adequacy of agency declarations in opposition to SJ)