CHURCH OF SCIENTOLOGY OF BOSTON, Plaintiff,
v.
INTERNAL REVENUE SERVICE, Defendant.
Civ. A. No. 90-11069-N.
United States District Court,
D. Massachusetts.
July 16, 1991.
Agency that had been sued under Freedom of Information Act filed motions for
order staying deposition and for protective order pending resolution of its
motion for summary judgment. The District Court, Marianne B. Bowler, United
States Magistrate Judge, held that plaintiff could not claim existence of
factual dispute that would necessitate further discovery until agency released
or failed to release documents in question and filed dispositive summary
judgment motion.
Motions allowed.
[1] FEDERAL CIVIL PROCEDURE
Discovery pursuant to Freedom of Information Act is limited to certain factual
issues, including scope of agency's search and its indexing and classification
procedures. 5 U.S.C.A. s 552.
[2] FEDERAL CIVIL PROCEDURE
Plaintiff in suit under Freedom of Information Act could not claim existence of
factual dispute that would necessitate further discovery until agency released
or failed to release documents in question and filed dispositive summary
judgment motion, notwithstanding plaintiff's contention that discovery had been
ongoing and that further discovery was only means by which agency could be
required to produce documents. 5 U.S.C.A. s 552.
*201 Earle C. Cooley, Cooley, Manion, Moore & Jones, Boston, Mass., Laurie
Bartilson, Bowles & Moxon, Hollywood, Cal., for plaintiff.
Michael J. Martineau, Harry J. Giacometti, U.S. Dept. of Justice, Washington,
D.C., for defendant.
ORDER RE: DEFENDANT'S MOTION FOR ORDER STAYING DEPOSITION (DOCKET ENTRY # 57)
and DEFENDANT'S MOTION FOR PROTECTIVE ORDER (DOCKET ENTRY # 58)
MARIANNE B. BOWLER, United States Magistrate Judge.
The defendant has filed two motions: (1) Motion for Order Staying
Deposition (Docket Entry # 57); and (2) Motion For Protective Order (Docket
Entry # 58). The defendant, Internal Revenue Service ("IRS"), contends, in
support of the motions in question, that further discovery should be stayed
until the court rules on the defendant's motion for summary judgment. [FN1]
The defendant claims, further, that the plaintiffs will not have the knowledge
necessary to determine the existence of a factual dispute with respect to
release of the proper documents until such time as the court rules on the
defendant's motion for summary judgment.
FN1. The IRS argued that it has not yet filed the summary judgment motion
in question, because it is still in the process of determining which of the
3000 documents at issue are to be released pursuant to the order of this
court dated March 11, 1991. The IRS is, accordingly, Ordered to file its
motion for summary judgment on or before October 16, 1991.
The plaintiff opposes the defendant's motions, arguing that further discovery
should be allowed. The plaintiff claims, in support of its opposition, that
discovery has been ongoing as evidenced by the defendant's *202 production
of a Vaughn index and the taking of at least one deposition. As such, the
plaintiff argues that factual disputes exist with respect to what documents the
defendant should be required to produce, and that further discovery is the only
means by which the defendant can be required to produce the documents in
question.
DISCUSSION
[1] Discovery pursuant to the Freedom of Information Act ("FOIA") is limited
to certain factual issues, including the scope of the agency's search, its
indexing and classification procedures. 5 U.S.C. s 552; see Murphy v.
F.B.I., 490 F.Supp. 1134, 1135 (D.D.C.1980) (discussing issue of discovery
under FOIA).
[2] Numerous courts have held that such factual issues generally arise after
a party has filed a motion for summary judgment. See id. at 1136 (granting
protective order in FOIA action where notice of deposition was premature and
government had not prepared answer); Weisberg v. Department of Justice, 543
F.2d 308, 310 (D.C.Cir.1976) (factual dispute arising after government
responded to plaintiff's FOIA request). The court in Murphy solidified the
principle that discovery in FOIA actions is permissible insofar as it concerns
a factual issue with respect to the adequacy of the government search and
index. Murphy v. F.B.I., 490 F.Supp. at 1137. The Murphy court
concluded, however, that such factual issues can develop only at a time
subsequent to a party's filing of a dispositive motion. Id. In fact,
courts have consistently allowed discovery where a factual issue came to
fruition subsequent to the filing of a summary judgment motion. See
Weisberg v. Department of Justice, 543 F.2d at 310 (permitting discovery
subsequent to consideration of motion for summary judgment); Schaffer v.
Kissinger, 505 F.2d 389, 391 (D.C.Cir.1974) (allowing discovery as to whether
reports were classified subsequent to consideration of motion for summary
judgment).
In the present action, the IRS is immersed in the process of determining
which documents it believes are protected against release. The IRS has already
released numerous documents pursuant to the original FOIA request by the
plaintiff, and limited discovery has occurred as a result of the alleged
inadequacy of the original search. It is the position of this court, however,
that the plaintiff cannot claim the existence of a factual dispute which would
necessitate further discovery until such time as the IRS releases or does not
release the documents in question and files a dispositive summary judgment
motion.
CONCLUSION
Defendant's Motion for Order Staying Deposition (Docket Entry # 57) and Motion
For Protective Order (Docket Entry # 58) are, accordingly, ALLOWED to the
extent that no discovery shall be taken until such time as the court reviews
the government's motion for summary judgment. In addition, as stated above,
the government is Ordered to file its motion for summary judgment on or before
October 16, 1991.