MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
In this
Freedom of Information Act (“FOIA”) case,
Plaintiff Freedom Watch once again seeks discovery from
Defendants Bureau of Land Management (“BLM”) and
U.S. Department of Justice-specifically the Federal Bureau of
Investigation (“FBI”)-due to developments in the
criminal prosecution of Cliven Bundy, who is not a party
here. Pl.'s Mot. for Leave to Conduct Discovery, ECF No.
51 (“Pl.'s Mot.”). Upon consideration of the
pleadings, [1] the relevant legal authorities, and the
record as a whole, the Court DENIES
Plaintiff's latest request for discovery.
The
Court shall also address certain of the parties' other
filings that affect further proceedings in this case. Among
these are the FBI's [39] Declaration of David M. Hardy,
and Plaintiff's [40] Response to Court's Order of
August 11, 2017. Based on these filings, the Court shall not
vary the FBI's current processing rate for
Plaintiff's FOIA request, nor, at this time, shall the
Court facilitate summary judgment briefing as to Exemption
7(A). Lastly, the Court considers various filings regarding
Defendants' live video feed that ultimately do not affect
the course of proceedings in this case.
A.
Relevant Background
The
Court begins by reviewing certain prior orders in this case
that are pertinent to both discovery and processing speed. At
the threshold, the Court observes that on at least three
prior occasions, Plaintiff has requested discovery in this
case, and the Court has denied each such request.
On May
15, 2017, the Court found that Plaintiff did not originally
request expedited treatment of its FOIA request to the BLM,
and rejected Plaintiff's argument that, inter
alia, alleged malfeasance of the Government in other
cases warranted expedited treatment now. Mem. Op. and Order,
ECF No. 29, at 2 & n.2. “[U]ntil Plaintiff can
proffer actual evidence of misconduct specific to this
matter, the Court shall pay no credence to Plaintiff's
generalized and unsupported claims of misconduct against
either Defendants or their attorneys.” Id. at
2. The Court also determined that, in “the absence of
any indicia of bad faith by the government in this matter,
” there was “no reason to permit discovery at
[that] time.” Id. at 2 n.2 (citing
Landmark Legal Found. v. E.P.A., 959 F.Supp.2d 175,
183 (D.D.C. 2013); Justice v. I.R.S., 798 F.Supp.2d
43, 47 (D.D.C. 2011), aff'd, 485 Fed.Appx. 439
(D.C. Cir. 2012)). Plaintiff's substantive basis for
requesting expedited treatment-the exigencies of Mr.
Bundy's criminal trial-was not justifiable because, among
other reasons, “the proper mechanism for Mr. Bundy to
obtain potentially exculpatory evidence is through the
criminal discovery process, ” or, failing that, through
a request to the judge hearing that case. Id. at
2-3.
Subsequently,
the FBI indicated that it expected to require approximately
500 months to complete the processing of Plaintiff's FOIA
request. See Min. Order of June 13, 2017.
Notwithstanding this long timeline, on June 13, 2017, the
Court adopted the FBI's proposed schedule of 500 pages
per month because Plaintiff did not provide any
“objective evidence” in support of its otherwise
unsubstantiated objections. Id. Yet, the Court
“remain[ed] amenable to receiving reasonable proposals
from Plaintiff to expedite the production of responsive
materials (e.g., by limiting the scope of its
requests).” Id.
On
August 11, 2017, the Court again denied a request from
Plaintiff for expedited production and for discovery. With
regard to production speed, the Court reiterated that the
immediacy predicated on Mr. Bundy's criminal case did not
warrant expedited treatment in this case; rather, Mr. Bundy
ought to take up the matter with the judge hearing his
criminal case. Min. Order of Aug. 11, 2017. As for discovery,
the Court found that Plaintiff had still failed to identify
any indicia in this case of Defendants' bad faith.
Id. The Court adopted BLM's proposed processing
schedule of 1, 000 documents per month and, yet again,
“for the time being, ” FBI's proposed
schedule of 500 pages per month. Id. The Court
ordered each party to submit further briefing regarding
aspects of FBI's production rate. That further briefing
resulted in the FBI's [39] Declaration of David M. Hardy,
and Plaintiff's [40] Response to Court's Order of
August 11, 2017, to which the Court shall turn below.
On
November 30, 2017, the Court once more denied Plaintiff's
request for discovery, referencing some of the prior orders
discussed above and finding that “Plaintiff [had] not
provided any details in support of its assertion that the
search is in bad faith.” Mem. Op. and Order, ECF No.
49, at 3-4.
B.
Plaintiff's Motion for Leave to Conduct
Discovery
Filed
December 19, 2017, Plaintiff's [51] Motion seeks
discovery once more, this time based on the purported
findings of a whistleblower report that came to light in Mr.
Bundy's criminal case. “A district court has
‘broad discretion' in denying discovery in FOIA
cases.” Cole v. Rochford, 285 F.Supp.3d 73, 77
(D.D.C. 2018) (quoting Beltranena v. Clinton, 770
F.Supp.2d 175, 187 (D.D.C. 2011)). “[I]n the FOIA
context, courts have permitted discovery only in exceptional
circumstances where a plaintiff raises a sufficient question
as to the agency's good faith in searching for or
processing documents.” Id. (citing, e.g.,
Baker & Hostetler LLP v. U.S. Dep't of
Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006)). The cases
cited by Plaintiff are consistent with these propositions and
resulted in denials of discovery requests. See
Pl.'s Mot. at 4; Defs.' Opp'n at 3.
According
to Plaintiff's Motion, the whistleblower report alleges
significant misconduct within the BLM and FBI in the events
precipitating the Bundy prosecution and in the prosecution
itself. See Pl.'s Mot. at 2-3. Ye t again,
however, Plaintiff has failed to substantiate his allegations
that any such misconduct taints Defendants' processing
and production in this case. See, e.g., id.
at 3 (“Given these damning revelations, it is no wonder
that Defendants here have provided blatantly inflated and
outrageous timelines for the production of documents in an
attempt to further the cover-up . . . .”).
Moreover,
the Court's review of the District of Nevada docket in
the criminal case against Cliven Bundy illustrates that any
urgency to uncover bad faith in this case appears to
be largely moot. Shortly after Plaintiff's Motion was
filed and fully briefed, the criminal case against M r. Bundy
in Nevada was dismissed with prejudice on January 8, 2018.
Judgment of Dismissal, United States v. Bundy,
2:16-cr-00046-GMN-PAL (D. Nev. Jan. 8, 2018)
(Bundy), ECF No. 3117. The Government sought
reconsideration of that decision, which the court denied on
July 3, 2018. Order, Bundy, ECF No. 3273. In
justifying its prior decision, the court stated that “a
universal sense of justice was violated by the
Government's failure to provide evidence that is
potentially exculpatory.” Id. at 11. The
District of Nevada docket reflects the Government's
filing of an appeal to the United States Court of Appeals for
the Ninth Circuit on August 2, 2018. Government's
Protective Notice of Appeal, Bundy, ECF No. 3306.
Regardless of the outcome of that appeal, however,
developments in Mr. Bundy's prosecution have vindicated
this Court's decision to defer, repeatedly, to the
criminal discovery process and the Nevada judge's
handling of any breakdowns in that process.[2]
The
closest Plaintiff comes to furnishing any basis for discovery
in this case is his argument that “what
Defendants have produced thus far are overwhelmingly only
press articles.” Pl.'s Reply at 2-3 (citing Aff. of
Dina James, Pl.'s Ex. 3, ECF No. 53-3). Plaintiff does
not mention, however, the reason that Defendants have given,
if any, for not producing many other kinds of documents. It
is quite possible, for example, that Defendants assert FOIA
exemptions, such as Exemption 7(A), as to other responsive
documents that they have reviewed. The ...