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Freedom Watch, Inc. v. U.S. Department of State

United States District Court, District of Columbia

February 21, 2018




         In this long-running case under the Freedom of Information Act (“FOIA”), Defendant Department of State seeks dismissal for want of prosecution. Joint Status Report, ECF No. 45, at 1. Defendant's request arises from Plaintiff's counsel's failure to comply with two orders issued by the court that required the parties to meet and confer in good faith to attempt to narrow the issues in dispute. Id.

         Although the court declines at this time to impose the ultimate sanction of dismissal, it will impose a lesser sanction. Plaintiff is barred from challenging Defendant's withholdings, searches, and segregability determinations as to item numbers 1-27, 29, 33-35, 37-38, and 40-43 of Plaintiff's FOIA request. See Compl., ECF No. 1, at 2-9 (listing Plaintiff's requested items). The court will give Plaintiff one more opportunity to meet and confer in good faith as to the remaining requests-item numbers 28, 30-32, 36, 39, and 44-50, i.e., those that the court previously defined as the “Unanswered Requests.” See Order, ECF No. 23, at 1. If Plaintiff fails to comply, the court will dismiss what is left of this matter for want of prosecution.


         Plaintiff's counsel has twice failed to meet and confer in good faith with Defendant in violation of court orders. The first time came in response to the court's Order of September 1, 2017. Order, ECF No. 40 [hereinafter Sept. 1st Order]. The September 1 Order required the parties to “meet and confer” and “endeavor in good faith to identify and, hopefully, narrow the aspects of Defendant's FOIA production [Plaintiff] intends to challenge.” Id. at 1. In view of the breadth of Plaintiff's FOIA demand-consisting of 50 separate requests directed at obtaining a trove of records concerning former Secretary of State Hillary Clinton, see Compl., ECF No. 1, at 2-9-the court ordered the meet-and-confer process so that Defendant would not have to “brief[ ] issues that will not ultimately be subject to challenge.” Sept. 1st Order at 1. The court unambiguously expressed its expectations of the parties, particularly Plaintiff:

To be clear, Plaintiff must identify with specificity, as to each component of its FOIA request, the withholdings it intends to challenge, as well as indicate whether it intends to contest the Defendant's search. Simply stating that Plaintiff “wants all requested documents” [1] will not do.

Sept. 1st Order.

         Plaintiff's counsel did not, however, follow this clear instruction. Instead, as reported by Defendant, “Plaintiff's counsel (1) did not identify any withholdings or types of withholdings Plaintiff intended to challenge, (2) did not state whether Plaintiff intended to challenge Defendant's search, and (3) did not propose a briefing schedule.” Joint Status Report, ECF No. 41, at 1-2. Inexplicably, when contacted by Defendant, Plaintiff's counsel conceded he had not reviewed any of the responsive records posted online and later expressed that “I don't care to narrow the issues.” Id. at 2. Instead, Plaintiff's counsel demanded that “all redacted and claimed exempted documents and records should be submitted to the court for in camera inspection.” Id. at 3. Counsel's justification for taking this position was that Defendant had “engaged in a pattern and practice” “of not being candid or truthful with regard to the search for documents and records and the production of documents and records.” Id. Plaintiff's counsel did not, however, deny Defendant's description of his words and actions, and counsel offered no evidence to support his allegations of misconduct. Id.

         The second violation of a court order came some three months later. Following a status conference on November 21, 2017, at which Plaintiff's counsel complained that he did not have access to any Vaughn indexes to evaluate Defendant's withholdings, the court directed the parties to give the meet-and-confer process another try. Order, ECF No. 43[hereinafter Nov. 21st Order], at 1. To facilitate the parties' discussions, the court ordered Defendant to produce Vaughn indexes to Plaintiff so that its counsel could review the withholdings and the asserted exemptions in advance of the parties' meet and confer. Id. at 1-2. The November 21 Order further provided that, “[o]nce produced by the State Department, Plaintiff's counsel shall review the produced Vaughn indices within 21 days, ” and that seven days thereafter the parties “shall meet and confer in accordance with the court's September 1, 2017 Order.” Nov. 21st Order at 1 (emphasis added).

         Despite this straightforward directive, Plaintiff's counsel apparently viewed compliance as optional. Defendant produced the Vaughn indexes, as ordered, on December 21, 2017. Notice of Service of Vaughn Indexes, ECF No. 44. Yet, when Defendant reached Plaintiff's counsel 26 days later-beyond the 21 days ordered by the court-on January 16, 2018, in an attempt to meet and confer, Plaintiff's counsel admitted “that he had not even looked at the Vaughn indices” and asked that they be re-sent, which Defendant agreed to do. Joint Status Report, ECF No. 45, at 2. Three days later, on January 19, 2018, Plaintiff's counsel again stated that “he had still not reviewed the indices sufficiently to discuss them” and asked to speak three days later on January 22, 2018. Id. The parties never did speak on that day, despite Defendant's efforts to do so. Id. at 2-3. Instead, Plaintiff's counsel e-mailed Defendant, asking that the following be reflected in the parties' Joint Status Report:

Plaintiff Freedom Watch has reviewed the Vaughn indexes provided by the Department of State and given Defendant's now well documented pattern and practice of improperly withholding documents and redactions thereof as relates to the time that Hillary Clinton was secretary of state, and thereafter, it is respectfully requested that any and all withheld documents be produced in camera for this Court for its review, and/or alternatively that discovery depositions of the records custodians who signed sworn declarations be ordered.

Id. at 3. Thus, once again, instead of meeting and conferring as ordered, Plaintiff's counsel asked the court to consume substantial time and resources to conduct an in camera review of thousands of pages. Plaintiff's counsel did not dispute Defendant's recitation of his words and actions and, once more, offered no proof to support his attack on Defendant.


         Federal Rule of Civil Procedure 16(f)(1)(C) authorizes the court “on its own” to issue “any just orders” if a party “fails to obey a . . . pretrial order.” “The choice of sanction must be guided by the ‘concept of proportionality' between the offense and sanction.” Cf. Bonds v. District ofColumbia, 93 F.3d 801, 808 (D.C. Cir. 1996) (discussing sanctions under Fed.R.Civ.P. 37) (quoting Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1077 (D.C. Cir. 1986)). The ultimate sanction of dismissal is one of last resort, to be used only after “less dire” alternatives have been explored without ...

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