A.N.S.W.E.R. Coalition v. Salazar

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
A.N.S.W.E.R. COALITION, )
)
Plaintiff, )
)
v. ) Civil Action No. 05-0071 (PLF)
)
KEN SALAZAR, )
Secretary of the Interior, et al., )
)
Defendants.1 )
__________________________________________)
MEMORANDUM OPINION AND ORDER
This matter is before the Court as a result of the parties’ dispute about the
meaning of the Court’s Memorandum Opinion and Order of November 14, 2008. By that
Opinion, the Court granted in part plaintiff’s motion to compel the defendants to provide
additional discovery under Rule 56(f) of the Federal Rules of Civil Procedure. See
A.N.S.W.E.R. Coalition v. Kempthorne, Civil Action No. 05-0071, Memorandum Opinion and
Order at 3 (Nov. 14, 2008) (the “Opinion”).
At a status conference on November 17, 2008, counsel for defendants requested
clarification about the requirements of the Opinion. Following the status conference, the Court
issued the following Minute Order:
As ordered at the November 17, 2008 status conference, on or
before November 19, 2008, defendants shall file copies of all
memoranda, e-mails, or other written documents issued to
1
The Court has substituted Ken Salazar, the current Secretary of the Interior, for
the former Secretary, Dirk Kempthorne, as a defendant in this case pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure.
individuals charged with searching files at the Secret Service and
the Department of the Interior regarding the scope of the searches
that were to be conducted for documents relating to Count II of
plaintiff’s amended complaint. On or before November 26, 2008,
plaintiff shall file a notice identifying the perceived areas of
deficiency, if any, in these searches and the language it proposes be
used in memoranda to be issued to these individuals directing them
to conduct further searches in compliance with this Court’s
Memorandum Opinion and Order of November 14, 2008.
Defendants shall file a response to this notice on or before
December 2, 2008.
A.N.S.W.E.R. Coalition v. Kempthorne, Civil Action No. 05-0071, Minute Order (D.D.C. Nov.
18, 2008).
Defendants subsequently filed hundreds of pages of documents regarding the
scope of their searches. As required by the Court’s Minute Order, plaintiff then identified what it
saw as multiple areas of deficiency, and proposed its own directive for a supplemental search.
See Plaintiff’s Praecipe to the Court Pursuant to November 18, 2008 Minute Order. In their
Response to Plaintiff’s Praecipe, defendants argued that no further search should be required.
After reviewing its earlier Opinion as well as the parties’ filings, the Court maintains its position
that defendants must conduct additional searches; it also concludes, however, that the searches
plaintiff proposes are broader than the Court intended and not necessary under Rule 56(f) of the
Federal Rules of Civil Procedure.2
The essence of the parties’ discovery dispute is whether defendants have met their
discovery obligations with respect to Count II of plaintiff’s Amended Complaint by searching
2
Limited discovery is permitted under Rule 56(f) of the Federal Rules of Civil
Procedure when a party opposing summary judgment shows by affidavit or declaration that “for
specified reasons, it cannot present facts essential to justify its opposition.” FED . R. CIV . P. 56(f);
see also Bourbeau v. Jonathan Woodner, Co., 600 F. Supp. 2d 1, 3-4 (D.D.C. 2009).
2
only for documents that relate to the Secret Service’s decision to ban sign supports. In its earlier
Opinion the Court stated:
The Court’s Order of November 13, 2007, directing the defendants
to provide discovery under Rule 56(f), was not, as defendants
characterize it, limited to discovery relating to “the decision by the
Secret Service to ban supports for signs at the 2005 inauguration.”
. . . [T]he Court’s Order was broader, encompassing the
production of all documents respecting plaintiff’s “claims relating
to the prohibition of sign supports” at the 2005 Presidential
Inaugural Parade. . . .
Opinion at 1-2. The word “prohibition” connotes something much broader than a particular
“decision.” Through defendants’ filings, as well as in defendants’ counsel’s representations in
open court, it has become clear to the Court that defendants have not been willing to
acknowledge this distinction — a distinction between the decision by the Secret Service to ban
sign supports at the 2005 Inauguration and the full scope of plaintiff’s claims which are
embodied in Count II: Does the prohibition of sign supports violate the First Amendment and the
Equal Protection Clause? See A.N.S.W.E.R. Coalition v. Kempthorne, 537 F. Supp. 2d 183, 191
(D.D.C. 2008); see also Defendants’ Response to Plaintiff’s Praecipe to the Court (“Def. Resp.”)
at 3. Although documents uncovered as a result of a search for records relating to a decision
made by the Secret Service to ban sign supports may constitute a significant part of the discovery
that is relevant to the prohibition claim in Count II, such a search is not sufficient. Defendants
have yet to convince either plaintiff or this Court that they have not unduly limited the scope of
their search for responsive documents.
In addition, defendants do not account for the other two areas of deficiency
identified in the Court’s November 2008 Opinion. First, they do not address the Secret Service’s
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failure to produce communications with various governmental entities and individuals. See
Opinion at 2. Such communications must be provided if they relate to plaintiff’s claims.
Second, defendants’ filings have yet to convince the Court that they have conducted adequate
searches for copies of the Presidential Advance Manual from October 2002. See Opinion at 3.
Defendants correctly point out that the Court did not grant plaintiff a whole new
bite at the discovery apple, see Def. Resp. at 2, and that many of the searches requested by
plaintiff in its Praecipe go beyond what the Court ordered or intended (for example, documents
relating to the 2001 Inauguration) and are otherwise overbroad. Therefore the Court will
eliminate subsections a, b, and f as well as the proposed search terms: “protest,” “protestor,”
“protester,” “demonstration,” “demonstrate,” “demonstrator,” and “parade” from plaintiff’s
proposed directive. In addition, it will direct the parties to meet and confer and attempt to agree
upon (1) a methodology for defendants’ searches that is consistent with this Memorandum
Opinion; (2) a list of files and electronic databases likely to contain responsive records and a list
of individuals likely to possess, have possessed or have responsibilities relating to the records to
be searched for and produced; and (3) a list of search directives that are likely to result in
documents relating to the prohibition on sign supports and plaintiff’s corresponding
constitutional claims in Count II, but that are not broader than the limited discovery provided for
by Rule 56(f) of the Federal Rules of Civil Procedure and by this Memorandum Opinion.
Accordingly, it is hereby
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ORDERED that the Court will adopt in part the recommendations in plaintiff’s
Praecipe to the Court [82], and will order defendants to conduct additional searches, as described
in this Memorandum Opinion, utilizing the method and protocol described in the immediately
preceding paragraph; it is
FURTHER ORDERED that on or before July 2, 2009, the parties shall file a joint
written report to inform the Court of the expected deadline for the production of the documents
by defendants to plaintiff, as well as how the parties wish to proceed with the remainder of the
case.
SO ORDERED.
/s/_______________________
PAUL L. FRIEDMAN
United States District Judge
DATE: June 18, 2009
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