UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRENT TAYLOR, : : Plaintiff, : Civil Action No.: 03-0173 (RMU) : v. : Re Document No.: 60 : J. RANDOLPH BABBITT, Administrator, : Federal Aviation Administration, et al., : : Defendants. :

MEMORANDUM OPINION

DENYING WITHOUT PREJUDICE THE PLAINTIFF’S MOTION TO ALLOW DISCOVERY

I. INTRODUCTION

This matter comes before the court on the plaintiff’s renewed motion for discovery. The

plaintiff commenced this action pursuant to the Freedom of Information Act (“FOIA”),

, seeking to compel the Federal Aviation Administration (“FAA”) to disclose design

specifications for an antique aircraft called the Fairchild F-45. The Fairchild Corporation, the

alleged record owner of the F-45 design specification, has intervened as a defendant. The

plaintiff now seeks discovery related to his underlying FOIA request. Because discovery is not

warranted at this time, the court denies the plaintiff’s motion without prejudice to reconsideration

of a renewed motion filed after the defendants have moved for summary judgment.

II. FACTUAL & PROCEDURAL BACKGROUND

The facts underlying this dispute are set forth in a prior memorandum opinion. See Mem.

Op. (May 12, 2005). On January 5, 2004, the plaintiff filed a motion to allow discovery. See

Pl.’s 1st Mot. for Disc. Through his motion, the plaintiff sought information related to whether the requested F-45 design specifications were actually maintained as a trade secret, as asserted

by the FAA.

The court denied the plaintiff’s motion, holding that discovery in the FOIA

action was unwarranted before the government filed its motion for summary judgment. See

Mem. Op. (Aug. 12, 2004). On November 15, 2004, the Fairchild Corporation intervened as a

defendant. See Mem. Order (Nov. 15, 2004). Subsequently, on January 10, 2005, the defendants

filed a motion to dismiss or, in the alternative, for summary judgment, arguing that claim

preclusion barred the plaintiff’s action because, under the doctrine of “virtual representation,” the

plaintiff was in privity with a plaintiff that had previously initiated a similar action in the Tenth

Circuit. See Defs.’ Mot. for Summ. J. at 12-21. The defendants also argued that the materials

requested by the plaintiff were exempt from disclosure pursuant to the trade secret exemption of

FOIA (“Exemption 4”).

.

The court granted the defendants’ motion for summary judgment, concluding that the

action was barred by the doctrine of claim preclusion. See Mem. Op. (May 12, 2005).

Consequently, the court declined to pass on the parties’ Exemption 4 arguments.

The Circuit

affirmed the court’s holding on the claim preclusion issue, and did not address whether the

records sought were exempt from disclosure under Exemption 4. See Taylor v. Blakey,

(D.C. Cir. 2007). The Supreme Court granted certiorari, see Taylor v. Sturgell,

(2008), and vacated the Circuit’s ruling on the virtual representation issue, see Taylor v.

Sturgell,

(2008). Following remand, the plaintiff filed a renewed motion

for discovery to which the court now turns. See generally Pl.’s 2d Mot. for Disc. (“Pl.’s Mot.”).

2 II. ANALYSIS

A. Legal Standard for Discovery in FOIA Cases

As a general rule, “[d]iscovery in FOIA [actions] is rare and should be denied where an

agency’s declarations are reasonably detailed, submitted in good faith and the court is satisfied

that no factual dispute remains.” Schrecker v. Dep’t of Justice,

(D.D.C.

2002), aff’d,

(D.C. Cir. 2003); see also Judicial Watch, Inc. v. Dep’t of Justice,

(D.D.C. 2002) (noting that “[d]iscovery is not favored in lawsuits under the

FOIA”). Discovery is only appropriate when it appears an agency has not undertaken an

adequate search for responsive documents, Schrecker,

, or, when necessary,

to determine the applicability of FOIA disclosure exemptions, see Miscavige v. Internal Revenue

Serv.,

(11th Cir. 1993); Ray v. Turner,

(D.C. Cir. 1978)

(holding that the district court may require in camera review to determine whether a disclosure

exemption applies); Kay v. Fed. Commc’ns Comm’n,

(D.D.C. 1997).

Discovery is not warranted “when it appears that discovery would only . . . afford[] [the plaintiff]

an opportunity to pursue a bare hope of falling upon something that might impugn the

affidavits.” Military Audit Project v. Casey,

(D.C. Cir. 1981) (internal

quotations omitted); see also Broaddrick v. Executive Office of the President,

(D.D.C. 2001). If an agency’s affidavits regarding its search are sufficient, the judge

has broad discretion to forgo discovery. Meeropol v. Meese,

(D.C. Cir.

1986); see also Schleeper v. Dep’t of Justice,

, at *1 (D.C. Cir. Apr. 30, 1999)

(per curiam) (affirming the lower court’s denial of discovery). Even if an agency’s affidavits

regarding its search are deficient, courts generally do not grant discovery but instead direct the

agency to supplement its affidavits. Judicial Watch,

.

3 B. Discovery is Unwarranted at this Time

As this court noted in a prior opinion, see Mem. Op. (Aug. 3, 2004), in the exceptional

case in which a court permits discovery in a FOIA action, such discovery should only occur after

the government has moved for summary judgment, see, e.g., Miscavige,

(holding

that a plaintiff’s request for discovery is inappropriate until the government has had an

opportunity to provide the court with the information necessary to make a decision on the

applicable FOIA exemptions); Krieger v. Fadely,

(D.D.C. 2001) (stating that

discovery in FOIA cases should “ordinarily occur after the government moves for summary

judgment”); Murphy v. FBI,

(D.D.C. 1980) (asserting that whether a

case “warrants discovery is a question of fact that can only be determined after the defendants

file their dispositive motion and accompanying affidavits”). 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.

See Murphy,

(noting that requiring the government to submit its dispositive

motion before ordering discovery provides information as to whether discovery is necessary); see

also Weisberg v. U.S. Dep’t of Justice,

(D.D.C. 1980) (asserting that courts

have ample authority to set limitations to protect agencies from oppressive discovery); Judicial

Watch, Inc.,

(stating that when an agency’s supporting documents are

insufficient to grant summary judgment, the court may order limited discovery but will typically

only require the agency to supplement its supporting declarations). If, after the government has

submitted its motion for summary judgment, the plaintiff is unable to oppose the motion without

further discovery, he may file a Rule 56(f) motion. FED. R. CIV. P. 56(f) (providing that a court

may stay a summary judgment motion and order discovery “if a party opposing the motion

4 shows by affidavit that, for specified reasons, it cannot present facts essential to justify its

opposition”); see, e.g., Schaffer v. Kissinger,

(D.C. Cir. 1974); Am. Broad.

Co. v. U.S. Info. Agency,

(D.D.C. 1984).

In this case, the plaintiff’s motion for discovery seeks information related to (1) whether

the design specifications sought were maintained as a trade secret and (2) whether the Fairchild

Corporation is truly the record owner of the F-45 certificate. Pl.’s Mot. at 5. The plaintiff claims

that without this information, he will be unable to effectively oppose a potential motion for

summary judgment made by the defendants. Id. at 6. The appropriate mechanism for the

plaintiff to seek such relief, however, is through a Rule 56(f) motion filed after the government

submits its renewed motion for summary judgment.1 See, e.g ., Schaffer,

;

Am. Broad. Co.,

. At that point, the court will have had the opportunity to

review the merits of the defendants’ exemption claim and will be better suited to make a

discovery ruling.2 Accordingly, the court denies the plaintiff’s motion without prejudice to

reconsideration of a renewed motion filed after the defendants have moved for summary

judgment by the date specified in the accompanying Order.

1 In their opposition to the plaintiff’s motion for discovery, the defendants state that they will renew their motion for summary judgment but will not pursue the claim preclusion issue. Defs.’ Opp’n at 5. 2 The court is aware that the defendants have previously submitted a motion for summary judgment and supporting documents. Because, however, the court resolved the previous motion solely on claim preclusion grounds, the court declined to address the exemption issue and did not consider the substance of the defendants’ argument. See generally Taylor v. Blakey,

(D.D.C. May 12, 2005), aff’d,

(D.C. Cir. 2007), vacated and remanded sub. nom. Taylor v. Sturgell,

(2008). Furthermore, the defendants’ renewed motion may shed additional light on the exemption issue.

5 IV. CONCLUSION

For the foregoing reasons, the court denies the plaintiff’s renewed motion for discovery

without prejudice to reconsideration of a renewed motion filed after the defendants have moved

for summary judgment. An Order consistent with this Memorandum Opinion is separately and

contemporaneously issued this 15th day of December, 2009.

RICARDO M. URBINA United States District Judge

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