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Asarco, Inc. v. United States Environmental Protection Agency

April 28, 2009

ASARCO, INCORPORATED, PLAINTIFF,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANT.



The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge

MEMORANDUM OPINION AND REPORT AND RECOMMENDATION

Currently pending and ready for resolution are the following motions: 1) Defendant's Motion for Summary Judgment [#10], 2) Asarco Incorporated's Objection and Motion to Strike Motion for Summary Judgment Used as Opposition to Application for Leave to Take Immediate Discovery [#14], 3) plaintiff's Memorandum in Support of Renewal of Asarco Incorporated's Application for Leave to Take Immediate Discovery ("Plains. Mot. for Discovery") [#24], 4) Defendant's Renewed Motion for Summary Judgment and Opposition to Plaintiff's Renewed Application for Discovery ("Defs. Renewed MSJ") [#30], and 5) defendant's Motion for Extension of Time [#38]. For the reasons stated below, the Court denies plaintiff's motion to take discovery and recommends that defendant's motion for summary judgment be granted.*fn1

MEMORANDUM OPINION

I. Plaintiff's Motion to Take Discovery

Asarco insists that it has made a sufficient showing of bad faith to justify discovery that, in turn, precludes the granting of summary judgment until at least that discovery is permitted. Asarco's Reply to the EPA's Opposition to Renewed Application for Discovery and Request for Oral Argument at 3. But, Asarco has not complied with Rule 56(f) of the Federal Rules of Civil Procedure by showing "by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition." See Fed. R. Civ. P. 56(f). While that requirement might be excused if the need for such discovery was otherwise evident*fn2, Asarco cannot overcome other more formidable obstacles.

The first obstacle is the consistent holding in case after case that discovery is not favored in Freedom of Information Act, 5 U.S.C. § 552, as amended, ("FOIA") cases and only allowed under rare circumstances. While there are phrases in the cases stating that a showing of bad faith is one such circumstance, it must be remembered that the entitlement to discovery occurs when there has emerged a genuine issue of material fact which can only be resolved by an evidentiary hearing. See Wash. Post Co. v. U.S. Dep't of State, 840 F.2d 26, 38 (D.C. Cir. 1988), reh'ing granted, judgment vacated on other grounds, 898 F.2d 793 (D.C. Cir. 1990); Wash. Post Co. v. HHS, 865 F.2d 320, 326 (D.C. Cir. 1989). Thus, if an agency claims for example that there is a possibility that harm will come to a certain person if a particular disclosure is made, and that factual assertion is contested such that the court is convinced that reasonable people could differ as to its truth, then summary judgment is inappropriate, as it would be in any case, FOIA or not. Wash. Post, 865 F.2d at 325. If, on the other hand, there is no genuine dispute as to how the agency collected the materials and the exemptions it claimed, there is no need for discovery and the court must then turn to the adequacy of the search and the legitimacy of the exemptions claimed.

It is in this context that the concept of "bad faith" must be understood. If the FOIA requestor makes a showing of "bad faith" by identifying an obvious deficiency in the agency's search that is utterly unjustified and inexplicable, a court may allow limited discovery that is appropriate to the deficiency shown and only where the circumstances suggest reason to impugn the integrity of the representations made by agency officials. See e.g., Carney v. U. S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (showing of bad faith must be sufficient to impugn agency's affidavits); Judicial Watch v. U.S. Dep't of Commerce, 34 F. Supp. 2d 28, 46 (D.D.C. 1988) (allowing discovery under supervision of Magistrate Judge concerning removal and destruction of records subject to FOIA subsequent to FOIA request); Caton v. Norton, No. 04-CV-439, 2005 WL 1009544, at *4 (D.N.H. May 2, 2005) (discovery as to alleged altered documents permitted in FOIA case). Stated differently, under those circumstances, there is a genuine issue of material fact as to whether the agency officials have told the truth in the representations submitted in support of the agency's motion for summary judgment, and it is appropriate to permit discovery to test the truthfulness of their contentions. It therefore follows that if the exemptions have been properly claimed and the search was adequate, the agency is entitled to summary judgment. See Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); Moore v. Bush, No. 07-CV-107, 2009 WL 504623, at *3 (D.D.C. Feb. 23, 2009); Coldiron v. U.S. Dep't of Justice, 310 F. Supp. 2d 44, 48 (D.D.C. 2004); Judicial Watch Inc. v. Export-Import Bank, 108 F. Supp. 2d 19, 25 (D.D.C. 2000); Judicial Watch of Fl. v. U.S. Dep't of Justice, 102 F. Supp. 2d 6, 10 (D.D.C. 2000).

In this case, Asarco's arguments as to its entitlement to discovery defeat themselves. The central premise of Asarco's claims of bad faith is that it is now self-evident that the agency has engaged in a bad faith search for the documents, motivated in part by the effect a more comprehensive search would have on the government's position in the Texas bankruptcy proceedings. Plains. Mot. for Discovery at 8. According to Asarco, this bad faith is established by the inherent contradictions in what the agency officials have said and by the deficiencies in the search itself. Id. at 8-9.

But, if the record is clear, why does Asarco need discovery? Asarco does not specifically identify the genuine issues of material fact to which such discovery should be devoted. Furthermore, in plaintiff's response to the defendant's statement of material facts not in dispute, plaintiff does not dispute the majority of defendant's statements. See Asarco Incorporated's Statement of Disputed Material Facts [#37-2]. In those instances where plaintiff does dispute a statement, it is either because plaintiff challenges the responding agency official's interpretation of plaintiff's FOIA request, see, e.g., id., at 2 (Response to SMFND No. 5); 8 (Response to SMFND No. 12); 11-13 (Response to SMFND No. 15). In support of its argument, plaintiff relies on the existing record that, as I have noted, it claims makes it indubitably clear that the agency has acted in bad faith and failed to adequately search for records. Thus, Asarco demands discovery in the very document in which it trumpets that the record is already so clear that the government's motion for summary judgment must be defeated. Discovery in a FOIA case, however, is not a punishment for a deficient agency performance. The remedy for such a deficiency is a remand to the agency to complete an adequate search, not discovery. Because Asarco fails to show how the discovery it seeks is necessary for the resolution of a genuine issue of material fact as to the adequacy of the agency's search, its motion to engage in such discovery may be denied.

II. The Adequacy of Defendant's Keyword Search

One final argument that plaintiff makes in support of its motion for leave to take discovery is that the electronic word search conducted by Feild, Project Coordinator for the Omaha Lead Superfund site in Omaha, Nebraska, evidences defendant's bad faith. According to plaintiff, Feild "used only one search term - 'recontamination' - to search the EPA's electronic files, even though using obvious additional search terms would have produced more complete results." Asarco Incorporated's Memorandum of Points and Authorities in Opposition to Defendant's Renewed Motion for Summary Judgment [#37] at 10. Even though the question of keyword searches is complicated and in fact keyword searches are no longer the favored methodology,*fn3 plaintiff's point is well taken and warrants one last search of Feild's electronic records. Therefore, Feild will be ordered to conduct, within seven days of the date of this Memorandum Opinion, another keyword search of his electronically stored files using the following terms, as specified by plaintiff: 1) "recontaminate," 2) "recontaminat," 3) "re-contamination," and 4) "contaminate again." See id. at 11.

An Order accompanies this Memorandum Opinion.

REPORT AND RECOMMENDATION

Defendant's Motion for Summary ...


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