Case 1:14-cv-00403-ESH Document 39 Filed 07/10/14 Page 1 of 11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Sai, ) ) Plaintiff, ) v. ) Case No: 14-0403 (ESH) ) TRANSPORTATION SECURITY ) ADMINISTRATION, ) ) Defendant. ) ) DEFENDANT S COMBINED OPPOSITION TO MOTION TO COMPEL AND MOTION FOR SANCTIONS AND REPLY IN SUPPORT OF MOTION FOR PROTECTIVE ORDER Defendant, by undersigned counsel, replies as follows in support of its motion for protective order (ECF No. 26) and also opposes Plaintiff s motion to compel production of documents (ECF No. 28) and cross-motion to compel and for sanctions (ECF No. 29 and 30). I. General Background BACKGROUND Plaintiff has filed this action under the Freedom of Information Act ( FOIA ) and Privacy Act seeking responses to requests for information that he submitted under those statutes to the Transportation Security Administration ( TSA ) for information about certain TSA policies and procedures, as well as for information regarding certain incidents involving him at TSA checkpoints at various airports. Plaintiff is separately pursuing a grievance against TSA under the Rehabilitation Act in connection with those incidents based on an alleged disability. As Plaintiff has stated in both the existing Complaint (Compl. 4-5), and in his proposed Amended Complaint (Proposed Am. Compl. 5), this action does not assert a claim under the Rehabilitation Act. To the contrary, that issue still remains at the administrative stage before an 1
Case 1:14-cv-00403-ESH Document 39 Filed 07/10/14 Page 2 of 11 office at TSA (the office that handles complaints regarding civil rights issues) that is distinct from TSA s FOIA office. As this action is limited to claims under FOIA (and the Privacy Act to the extent the records sought are about Plaintiff), the issues before the Court are limited to (a) the adequacy of TSA s search for responsive documents subject to FOIA, (b) whether any withholdings, in whole or in part, are supported by applicable FOIA exemptions, and (c) whether TSA reasonably segregated nonexempt from exempt material in connection with any withheld information. The standard practice in a FOIA action, moreover, is for these issues to be addressed by the Court through summary judgment motion(s) after the requests have been processed by the agency according to a schedule set by the Court. As discussed more fully in the Deplitch declaration that accompanied Defendant s opposition to Plaintiff s motion for preliminary injunction (ECF No. 27-1), TSA is still processing the requests at issue in the Complaint and, as to several of the requests, expects to complete that processing within 45 days of the date of the declaration. A schedule for the filing of summary judgment motions, moreover, has not yet been set in this case. Defendant has not yet answered the Complaint and its obligation to do so has been stayed by the Court s order dated June 9, 2014, by virtue of Plaintiff having filed a motion for leave to amend his Complaint. II. Plaintiff s Discovery Requests and Defendant s Motion for Protective Order On June 3, 2014, Plaintiff served on Defendant a set of written discovery that consisted of 346 requests for admission as well as at least the same number of interrogatories, if not more. Although the discovery requests refer to a single interrogatory, that interrogatory actually has three discrete parts that seeks information with respect to each of the 346 requests for admission (and, therefore, far exceeds the 25 interrogatory limit under Rule 33). The written discovery, 2
Case 1:14-cv-00403-ESH Document 39 Filed 07/10/14 Page 3 of 11 totaling 33 pages, was accompanied by several attachments consisting of approximately 200 or more pages. Counsel for Defendant advised Plaintiff of Defendant s objection to any discovery in this FOIA action, both in a telephone conversation and through email communications, and also advised Plaintiff of Defendant s intention to file a motion for a protective order in response to the discovery requests. Before Defendant filed its motion for protective order, the parties jointly contacted chambers on June 10, 2014, to bring this dispute to the Court s attention and to seek guidance from the Court as to how the Court would like the parties to proceed. The parties were thereafter directed to raise their dispute through the filing of written motions. Accordingly, on June 18, 2014, Defendant filed a motion for protective order, seeking an order that Defendant is not required to respond to any discovery in this action, including requests for admission, that has already been propounded by Plaintiff or that may subsequently be propounded by Plaintiff absent a Court order permitting such requests to be propounded. 1 (ECF No. 26). On June 26, 2014, Plaintiff sent an email to undersigned counsel attaching a Request for Production of Documents directed to statements made in the Declaration of Amanda Deplitch attached to Defendant s opposition to Plaintiff s motion for preliminary injunction (ECF No. 27-1). Plaintiff s email attaching the discovery requests asked counsel for Defendant to advise if Defendant intend[ed] to object and, if so, to please give a list of times when you are available for conference with the Court. Counsel for Defendant responded by email that same day that Defendant objected to this discovery for all of the reasons stated in Defendant s pending motion 1 Plaintiff has recently contacted Defendant to schedule the deposition of Ms. Deplitch, and Defendant has objected for the reasons stated in the pending motion for protective order. Defendant requested in that motion an order precluding any discovery in this action absent leave of Court. That relief also would encompass any request for depositions. 3
Case 1:14-cv-00403-ESH Document 39 Filed 07/10/14 Page 4 of 11 for protective order, which sought as relief an order providing that Defendant is not required to respond to any discovery in this action. Counsel for Defendant also advised that, because the Requests for Production were encompassed within the same dispute over discovery already raised with chambers on June 10, 2014, that Defendant did not believe it was necessary to contact chambers again about this issue (as stated above, the parties already were directed by the Court to address their discovery dispute through motions to the Court). Plaintiff filed a motion to compel (ECF No. 28) that same day, claiming that Ms. Deplitch s declaration contained false statements and that the requested discovery seeks the production of documents specifically calculated to procure evidence as to whether [the declaration] is perjurious or contains other false statements. (ECF No. 28 at 2). Plaintiff also asserted in his motion to compel that undersigned counsel refused to confer on this matter. As the above discussion reflects, that is not correct. Counsel for Defendant provided Plaintiff with Defendant s position, referred Plaintiff to the pending motion for protective order, and also referred Plaintiff to the prior direction received from the Court to address their discovery dispute through motions to the Court. On June 29, 2014, Plaintiff filed his response to Defendant s motion for protective order, cross-moved for an order compelling responses to his Requests for Admission and Interrogatories, and moved for the imposition of sanctions for Defendant s alleged failure to confer regarding the motion for protective order. (ECF No. 29 and 30). The latter assertion is belied by the email communications attached to Plaintiff s filing (which reflect that the parties conferred regarding their discovery dispute), the fact that the parties jointly contacted chambers on June 10, 2014 about their dispute, and the fact that the Court thereafter directed Defendant to 4
Case 1:14-cv-00403-ESH Document 39 Filed 07/10/14 Page 5 of 11 proceed with a motion for protective order to the extent Defendant wanted to present the issue for the Court s consideration. The following constitutes Defendant s reply in support of its motion for protective order, opposition to Plaintiff s motions to compel, and opposition to Plaintiff s motion for sanctions. It also constitutes Defendant s response under Rule 34 to the Request for Production served on June 26, 2014. 2 ARGUMENT I. The Court Should Grant A Protective Order Precluding Any Discovery In This Action Absent Leave Of Court. As established in Defendant s motion for protective order, discovery is disfavored in FOIA actions and only is permitted in limited circumstances (not present here) in which a plaintiff has raised a sufficient question as to agency affidavits regarding the adequacy of the agency s search, and/or the basis for agency withholdings, in the context of the briefing of summary judgment motions. Contrary to Plaintiff s assertion, Requests for Admission constitute discovery under the Federal Rules of Civil Procedure and thus fall within this general prohibition. See, e.g., Walsh v. Jones, Case No. 13-844 (RCL), Order dated Nov. 13, 2013 (ECF No. 24, 42) (granting motion for protective order filed in response to requests for admission in a FOIA action). Even in the rare FOIA action where discovery is considered to be a possibility, moreover, the government must first be permitted to submit its dispositive motion and supporting affidavits and have an opportunity to rebut allegations that its affidavits are insufficient. This case has not yet reached this stage. The requests at issue are still being processed by Defendant and 2 The motion for protective order constituted Defendant s response under Rule 33 and Rule 36 to the Requests for Admissions and Interrogatories that are attached to that motion. 5
Case 1:14-cv-00403-ESH Document 39 Filed 07/10/14 Page 6 of 11 Defendant s obligation to answer the Complaint currently is stayed pending resolution of Plaintiff s pending motion for leave to amend the Complaint. Accordingly, it is premature for Plaintiff to request any discovery. The discovery that Plaintiff has served to date, moreover, has no bearing on the substantive issues presented in a FOIA action (adequacy of search, basis for withholdings under applicable exemptions). Plaintiff s Request for Admissions and Interrogatories instead seek to develop a record in connection with Plaintiff s distinct grievance under the Rehabilitation Act, which Plaintiff acknowledges is a claim that has not been raised in this lawsuit (e.g., ECF No. 26-2, RFA Nos. 64-90), seek admissions regarding certain conclusions of law, including with respect to his grievance under the Rehabilitation Act (e.g., ECF No. 26-2, RFA Nos. 1-5, 220-346), seek admissions as to the authenticity of various documents already in Plaintiff s possession (e.g., ECF No. 26-2, RFA Nos. 6-63), and otherwise seeks admission of alleged specific facts that have no bearing on the substantive issues presented in this action (e.g., ECF No. 26-2, RFA Nos. 91 219). The Requests for Admission and Interrogatories therefore are objectionable because they are overly broad, not reasonably calculated to lead to the discovery of admissible evidence, unduly burdensome, and otherwise fall outside the scope of permissible discovery under Rule 26(b)(1). Moreover, the purported single interrogatory, which contains three subparts seeking information pertaining to each of the 346 admission requests, exceeds the 25-interrogatory limit in Rule 33. Plaintiff s assertion that such an interrogatory should constitute a single interrogatory is contrary to the weight of authority. See, e.g., Saliga v. Chemtura Corp., 2013 U.S. Dist. LEXIS 164812, at *10-11 (D. Conn. Nov. 20, 2013) (characterizing as a widely adopted approach the treatment of an interrogatory seeking the basis for the denial of each 6
Case 1:14-cv-00403-ESH Document 39 Filed 07/10/14 Page 7 of 11 request for admission as multiple interrogatories correlating to the number of admission requests). The Request for Production of Documents (ECF No. 28-1) also has no bearing on any substantive issue in this case. As stated in Plaintiff s motion to compel, Plaintiff s stated purpose in serving these document requests is to procure evidence as to whether Amanda Deplitch s sworn declaration [filed in support of Defendant s opposition to the motion for preliminary injunction] is perjurious or contains other false statements. (ECF No. 28, at 2). The stated purpose of this discovery, therefore, is unrelated to claims under FOIA that are at issue in this action. The Court, moreover, already has denied Plaintiff s motion for preliminary injunction (to which the Deplitch declaration related) and also denied Plaintiff s motion for sanctions based on statements made in the Deplitch declaration. (ECF No. 34, Mem. Op. at 9). Defendant also observes that the premise of the Request for Production of Documents that false statements were made in the Deplitch declaration is not supported by the record. Defendant addresses each of the alleged false statements in turn. As the following discussion establishes, the statements in the Deplitch declaration (which were based on information contained in TSA s FOIA system) were not false. Plaintiff first takes issue with the statement in the Deplitch declaration regarding Request 2013-TSPA-00339 (originally labeled as RequestTSA13-0488 and 2013-TSFO-01179), in which Ms. Deplitch stated that: On March 25, 2013, TSA sent a letter to Sai informing him that his request was determined to be too broad in scope... [and] requested that Sai resubmit his request with a reasonable description of the records he was seeking. TSA never received a response from Sai. (ECF No. 27-1, Deplitch Decl. 8.) Plaintiff attaches an email to his motion to compel that he contends was a response to the March 25, 2013 letter (ECF No. 28-2) and, 7
Case 1:14-cv-00403-ESH Document 39 Filed 07/10/14 Page 8 of 11 based on that email, contends that the statement that TSA never received a response is false. However, the relevant point is that TSA never received a response from Sai in the manner TSA had requested, that is, a resubmitted request with a reasonable description of the records he was seeking. Plaintiff does not contend that he resubmitted his request as was requested in the March 25, 2013 letter. Instead, to the extent the email attached to the motion to compel refers to Request No. 2013-TSPA-00339, the email is not responsive to the request made in the March 25, 2013 letter. (ECF No. 28-2, at Page 2 of 3). Accordingly, the email does not establish that the statement in the Deplitch declaration was false. While Plaintiff may have provided a response in an email, he did not respond in the manner requested by TSA. The second statement that Plaintiff claims to be false pertains to Request 2013-TSFO- 00239 (originally labeled as Request TSA13-0494), in which Ms. Deplitch stated that: On March 25, 2013, the TSA FOIA office sent a letter to Sai... informing him that, after careful review, the request was determined to be too broad in scope... [and] request[ed] that Sai resubmit his request containing a reasonable description of the records he is seeking.... The TSA FOIA office never received a perfected request from Sai providing more specificity as to what he was seeking in his request. (ECF No. 27-1, Deplitch Decl. 10-11.) Plaintiff contends that the same email (ECF No. 28-2) was a response to this aspect of the March 25, 2013 letter and, based on that email, contends that the statement that TSA never received a perfected request is false. However, to the extent the email attached to the motion to compel refers to Request 2013-TSFO-00239, it does not constitute a perfected request as requested in the March 25, 2013 letter. (ECF No. 28-2, at Page 2 of 3). Accordingly, the email does not establish that the statement in the Deplitch declaration was false. 8
Case 1:14-cv-00403-ESH Document 39 Filed 07/10/14 Page 9 of 11 The third statement that Plaintiff claims to be false is Ms. Deplitch s statement that [t]he TSA FOIA office does not have a record in its FOIA system of any requests from Plaintiff in November 2013. (ECF No. 27-1, Deplitch Decl. 5.) Plaintiff attaches an email dated November 23, 2013 (ECF No. 28-3 at Page 11 of 14) that he contends renders this statement false. As the email chain attached to the motion to compel reflects, however, the November 23, 2013 email was not treated as a new FOIA request by TSA and thus does not contradict the referenced statement in the Deplitch declaration. 3 The portion of that email directed to the FOIA office seeks the same information sought by Plaintiff in two of his prior requests. Indeed, Plaintiff acknowledges in his Complaint that the November 2013 email clearly incorporated and reiterated the contents of Sai s previous requests (Compl. 115) and TSA responded to the November 2013 email, not by assigning it a new request number, but by stating that it was looking into the status of Plaintiff s open requests. (ECF No. 28-3 at Page 12 of 14.) Thus, TSA did not treat that aspect of the November 2013 email as a new FOIA request and it was not entered in TSA s FOIA system as a new request. Moreover, the remainder of the November 23, 2013 email is not a FOIA request and is expressly not directed to the FOIA office. To the contrary, the remaining portion of the email is expressly directed to a different office within TSA (the office that handles civil rights complaints) and is seeking from that office an administrative response to Plaintiff s grievance filed under the Rehabilitation Act. (ECF No. 28-3, at Page 11 of 14). Accordingly, Ms. 3 Defendant recognizes that the Court, in its decision denying the motion for preliminary injunction, referred to this statement as false (albeit not knowingly false) based on the November 23, 2013 email. (ECF No. 34, Mem. Op. at 9 n.7). Defendant respectfully submits that, as the above discussion reflects, the November 2013 email was not treated as a new FOIA request and thus the statement in the Deplitch declaration (and any related statements in the opposition to Plaintiff s motion for preliminary injunction) was not false. 9
Case 1:14-cv-00403-ESH Document 39 Filed 07/10/14 Page 10 of 11 Deplitch s statement that [t]he TSA FOIA office does not have a record in its FOIA system of any requests from Plaintiff in November 2013 is not false. Additionally, Plaintiff claims that Ms. Deplitch s statements that Plaintiff Sai did not provide the TSA FOIA office with any information that would notify the FOIA office of the existence of [Rehabilitation Act grievance] claims and that TSA has only now received notice that Sai apparently intends to request records relating to his Rehabilitation Act claims are false. (ECF No. 27-1, Deplitch Decl. 13). However, as Plaintiff s own exhibits to his motion to compel demonstrate, the portion of the November 23, 2013 email that pertained to Plaintiff s Rehabilitation Act grievance was not directed to the FOIA office. (ECF No. 28-3, at Page 11 of 14). The portion of the November 2013 email that was directed to the FOIA office, moreover, did not seek documents pertaining to that grievance but instead was duplicative (as Plaintiff has acknowledged) of prior requests. (Id.; see also Compl. 115). Thus, as stated by Ms. Deplitch in her declaration, it was not until Plaintiff filed his motion for preliminary injunction that TSA was on notice that Plaintiff interpreted his requests as seeking records under FOIA relating to his Rehabilitation Act grievance. In conclusion, for all of the reasons stated above, the Court should grant Defendant s motion for protective order and deny Plaintiff s motions to compel. II. Plaintiff s Motion for Sanctions Should Be Denied. Plaintiff moves for sanction based on the contention that Defendant failed to confer prior to the filing of Defendant s motion for protective order. (ECF No. 29-30, at 11-12) There is no basis, however, for that assertion. As the email communications attached to Plaintiff s filing establish, the parties conferred by telephone and email regarding their dispute over whether discovery is appropriate in a FOIA action. The parties also jointly contacted chambers on June 10
Case 1:14-cv-00403-ESH Document 39 Filed 07/10/14 Page 11 of 11 10, 2014 about their dispute, and the Court thereafter directed Defendant to proceed with a motion to the extent Defendant wanted to present the issue for the Court s consideration. Defendant, moreover, has a good faith basis to contend that any discovery is inappropriate in a FOIA action, and also to object specifically to the discovery that has been propounded by Plaintiff to date. In addition, as a result of Defendant s threshold objection to any discovery in this action, Defendant was not obligated to confer with Plaintiff over whether the requested discovery could be narrowed. Accordingly, Plaintiff s motion for sanctions should be denied. CONCLUSION For the foregoing reasons, Defendant s motion for protective order should be granted, Plaintiff s motions to compel should be denied, and Plaintiff s motion for sanctions should be denied. Respectfully submitted, RONALD C. MACHEN, JR., D.C. BAR #447889 United States Attorney for the District of Columbia DANIEL F. VAN HORN, D.C. BAR # 924092 Civil Chief By: /s/ JEREMY SIMON, D.C. BAR #447956 Assistant United States Attorney Civil Division 555 4 th Street, N.W. Washington, D.C. 20530 (202) 252-2528 Jeremy.Simon@usdoj.gov 11