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Watch v. Bureau of Land Management

United States District Court, District of Columbia

September 25, 2018

FREEDOM WATCH, Plaintiff,
v.
BUREAU OF LAND MANAGEMENT, et al., Defendants.

          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 ...


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