The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
Before the Court is Defendant's Motion to Strike, In Part, Plaintiff Hall's Declaration ("Motion"), which was referred to me for resolution by Judge Henry K. Kennedy, Jr. For the reasons stated below, the Motion will be granted.
The parties to this Freedom of Information ("FOIA") case have filed cross-motions for summary judgment. See Defendant's Motion to Dismiss and for Partial Summary Judgment ("Def. Mot."); Cross-Motion of Plaintiffs Roger Hall ("Hall") and Studies Solutions Results, Inc. ("SSRI") for Partial Summary Judgment, and Other Relief ("Cross-Motion"); Plaintiff Accuracy in Media's Opposition to Defendant's Motions to Dismiss and for Partial Summary Judgment, and Cross-Motion for Partial Summary Judgment.
Plaintiffs Hall and SSRI*fn1 submitted and rely upon a declaration by Hall (the "Declaration," or "Decl.") as part of their Cross-Motion. The purpose of the Declaration is to support plaintiffs' assertion that defendant has not undertaken an adequate search and production in response to their FOIA request.
The Declaration is essentially a laundry list of historical events alleged by Hall to have occurred, and to which no related documents have been produced by defendant. Some of the statements in the Declaration recount what was told to Hall in interviews and conversations with third parties, see, e.g., Decl. at ¶ 10 ("Admiral Elmo Zumwalt revealed to me in a conversation I had with him . . ."), others are descriptions by Hall of documents, see, e.g., id. at ¶ 31 ("In the declassified portion of his testimony, Admiral Inman confirms . . ."), and others are conclusory statements of fact or opinion, see, e.g., id. at ¶ 19 ("It is known that the CIA had certain guards on the payroll . . ."); id. at ¶ 32 ("While the identity of the agency which created these documents is not apparent, I believe they were either created by the CIA or based in substantial part on information provided by the CIA.").
B. Defendant's Motion to Strike
Defendant moves to strike the Declaration on the basis that, in violation of Rule 56(e), much of its content is hearsay, not based on personal knowledge, and/or is unsupported by the record or attached documentation. Memorandum of Points and Authorities in Support of Motion to Strike, in Part, Plaintiff Hall's Declaration ("Def. Memo") at 2-6.
Rule 56(e) of the Federal Rules of Civil Procedure governs such declarations and provides, in relevant part, that they:
must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matter stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit.
Fed. R. Civ. P. 56(e)(1).
Plaintiffs raise numerous arguments in opposition to the Motion: (A) defendant has waived its right to challenge the Declaration; (B) Hall should be able to testify to the statements that defendant challenges as beyond his personal knowledge; (C) Hall is an expert and meets the standards for expert testimony; (D) all previously missing exhibits have been attached to their Opposition; and (E) if the Declaration is stricken, plaintiffs should be able to conduct additional discovery.
As an initial matter, plaintiffs argue that prior inaction has resulted in a waiver by defendant of its right to contest the Declaration. Plaintiffs claim that the Declaration is "drawn largely from the declaration that Hall" submitted in a prior case, Hall v. Central Intelligence Agency, No. 98-cv-1319. Opposition of Plaintiffs Roger Hall and Studies Solutions Results, Inc. to Defendant's Motion to Strike Parts of Declaration of Roger Hall ("Opp.") at 2. Because defendant did not move to strike that declaration, plaintiffs argue, it has waived the right to so move here. Id. This argument fails for several reasons.
First, plaintiffs have not attached that declaration to their brief. As it is not accessible from the Court's electronic docketing system (ECF/PACER), this Court and defendant have no way to determine whether plaintiffs are correct that the two declarations are "largely similar." Id. This alone is a sufficient basis to reject plaintiffs' argument.
Second, the one case cited by plaintiffs to support their argument, Cattrett v. Johns-Manville Sales Corp., 826 F.2d 33, 38 (D.C. Cir. 1987), is inapposite. In Cattrett, a plaintiff appealed an entry of summary judgment by arguing, in part, that a letter she had attached to her opposition brief evidenced a genuine issue of material fact. Id. at 36-37. Defendant, in response, argued that the letter "should be ignored by virtue of its asserted inadmissibility at trial." Id. at 37. The court of appeals held that defendant had waived that argument by not timely raising it before the district court. Id. at 37-38. There is nothing in Cattrett that supports plaintiffs' argument that a party cannot move to strike a declaration if it had not moved to strike a similar declaration in an entirely different case.
Finally, to the extent that plaintiffs are arguing that defendant is somehow estopped because of action it did not take in another case, the Court notes that "the doctrine of estoppel is applied against the Government with the utmost caution and restraint." Estate of Carberry v. C.I.R., 933 F.2d 1124, 1127 (2d Cir. 1991) (internal quotation omitted). See also Konstantinidis v. Chen, 626 F.2d 933, 938 (D.C. Cir. 1980) ("the judicial estoppel doctrine has no vitality in" ...