Part of a public library containing court papers related to lawsuits involving Scientology in some way. Collected to help lawyers and critics of Scientology in future lawsuits from or against this cult. Please report back if this has been of help, or send new contributions to the collection. Thanks. Andreas Heldal-Lund (heldal@online.no)

        CHURCH OF SCIENTOLOGY OF SAN FRANCISCO;  Church of Scientology of
                    California et al., Plaintiffs-Appellants,
                  INTERNAL REVENUE SERVICE, Defendant-Appellee.
          CHURCH OF SCIENTOLOGY OF SAN FRANCISCO, Plaintiff-Appellant,
                  INTERNAL REVENUE SERVICE, Defendant-Appellee.
                            Nos. 91-15730, 91-15734.
                         United States Court of Appeals,
                                 Ninth Circuit.
                       Argued and Submitted Nov. 5, 1992.
                             Decided April 16, 1993.
  Plaintiffs brought suit under the Freedom of Information Act (FOIA) to gain
 access to records of IRS.  On appeal from decision of United States District
 Court for the Northern District of California, Charles A. Legge, J., granting
 IRS' motion for summary judgment.  The Court of Appeals, Beezer, Circuit Judge,
 held that summary judgment should not have been entered in favor of IRS until
 plaintiffs had reasonable opportunity to conduct discovery relevant to
 applicability of FOIA exemptions and to accuracy and completeness of IRS
  Reversed and remanded.
  *560 Kendrick L. Moxon, Bowles & Moxon, Los Angeles, CA, for plaintiffs-
  Shirley D. Peterson, Asst. Atty. Gen., Washington, DC, for defendant-appellee.
  Appeal from the United States District Court for the Northern District of

  Before:  BEEZER, KOZINSKI, and KLEINFELD, Circuit Judges.

  *561 BEEZER, Circuit Judge:
  We consider a plaintiff's right to conduct discovery prior to summary
 judgment in an action brought against the government under the Freedom of
 Information Act, 5 U.S.C. s 552 (1982) ("FOIA").
  In two consolidated appeals, member Churches of Scientology challenge the
 district court's grant of summary judgment in favor of the Internal Revenue
 Service ("IRS").  We must determine whether the district court erred in denying
 the Churches the opportunity to conduct discovery regarding the adequacy of the
 IRS's response to the Churches' FOIA requests.  We reverse and remand the
 judgments of the district court.
  A. Appeal No. 91-15730
  In virtually identical letters, the Church of Scientology of San Francisco,
 the Church of Scientology of Orange County and the Church of Scientology of
 California ("Churches") requested, pursuant to FOIA, access to records of the
 IRS relating to the designation or inclusion of each of the Churches or their
 parishioners in a so-called "tax shelter litigation project."  Each letter
 asked the IRS to conduct a thorough search of all record and file systems that
 may contain responsive information, including project files, tax shelter branch
 files, Regional Shelter Coordination Files, as well as various data bases.
  The IRS denied the requests on the grounds that all of the documents were
 exempt from disclosure under FOIA "Exemption 3," 5 U.S.C. s 552(b)(3), in
 conjunction with Section 6103 of the Internal Revenue Code, 26 U.S.C. s
 6103 (1986), and FOIA "Exemption 5," 5 U.S.C. s 552(b)(5). [FN1]

      FN1. 5 U.S.C. s 552(b)(3) exempts matters
     specifically exempted from disclosure by statute (other than section 552b
     of this title), provided that such statute (A) requires that the matters be
     withheld from the public in such a manner as to leave no discretion on the
     issue, or (B) establishes particular criteria for withholding or refers to
     particular types of matters to be withheld.
     5 U.S.C. s 552(b)(5) exempts "inter-agency or intra-agency memorandums
     or letters which would not be available by law to a party other than an
     agency in litigation with the agency."

  The Churches subsequently filed administrative appeals to which the IRS did
 not respond.  The Churches then filed suit in district court to compel
 disclosure.  In its answer, the IRS again claimed the documents at issue were
 exempt from disclosure.
  In response to the Churches' attempt to take depositions of IRS officials, the
 IRS filed a motion for a protective order to preclude all discovery prior to
 its motion for summary judgment.  The district court granted the IRS's motion
 for a protective order, agreeing with the IRS that discovery was, at this
 point, "very premature" and that the dispute was a "case management," not a
 legal, problem.
  The court then ordered the IRS to produce a "Vaughn Index," [FN2] of the
 withheld documents and informed the Churches that the court would consider
 permitting discovery only after the IRS had filed its summary judgment motion
 if the Churches then came forward and identified factually disputed issues.

      FN2. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied,
     415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

  The IRS subsequently filed a Vaughn Index and asserted that only 12 pages
 of records were responsive to the FOIA request.  Shortly thereafter, the IRS
 filed its motion for summary judgment.  In support of its motion, the IRS
 submitted a memorandum and declarations of IRS employees regarding the nature
 and adequacy of the search.  The Churches opposed the motion, and moved for a
 continuance pursuant to Federal Rule of Civil Procedure 56(f) and leave to
 take discovery.
  In a hearing on the motion, the district court expressed dissatisfaction
 with the declarations regarding the scope of the agency's search for records
 and gave the IRS 30 days to "beef up" its declarations.  The IRS subsequently
 filed a single supplemental declaration.
  *562 The Churches filed a supplemental opposition to the motion for summary
 judgment, contending that without discovery they could not "fully and
 reasonably oppose" the motion for summary judgment and that the declarations
 concerning the searches were defective and insufficient.  The court took the
 matter under submission, eventually ruling that the "declarations meet the
 standards required of the IRS by section 552(a)(3)(A), Truitt, and
 Miller." [FN3]

      FN3. Truitt v. Dept. of State, 897 F.2d 540, 542 (D.C.Cir.1990) and
     Miller v. United States Dept. of State, 779 F.2d 1378, 1383 (8th
     Cir.1985) both hold that the adequacy of a search under the Freedom of
     Information Act is judged by a standard of reasonableness.

  B. Appeal No. 91-15734
  In a separate case, the Church of Scientology of San Francisco requested
 access to IRS records maintained in the IRS Fresno Service Center concerning
 the Church and which related to the establishment and inclusion of the Church
 and its members in an "illegal tax protestor program."
  Repeating the pattern described in the first appeal, the IRS claimed exemption
 from FOIA and ignored the Church's administrative appeal.  The Church's attempt
 to depose the IRS was again challenged by an IRS motion for a protective order
 requesting the court to stay discovery until the IRS had prepared and filed its
 motion for summary judgment.  As in the first appeal, the Church opposed the
 motion, arguing that discovery was necessary in order to permit the Church
 competently to oppose any future summary judgment order by the IRS.  The
 district court granted the motion staying discovery.
  The IRS subsequently moved for summary judgment, submitting declarations by
 IRS employees in support of the motion.  Arguing that it was impossible for the
 Church to make a determination as to the completeness of the search, the Church
 opposed the motion and requested reasonable discovery under Rule 56(f).  On
 the same day it decided case No. 91-15730, and for the same reasons, the
 district court granted summary judgment in favor of the IRS.
  [1][2][3] A denial of a Rule 56(f) application is reviewed under the
 abuse of discretion standard.  VISA Int'l Serv. v. Bankcard Holders of Am.,
 784 F.2d 1472, 1475 (9th Cir.1986).  The adequacy of a search under the Freedom
 of Information Act is judged by a standard of reasonableness.  Zemansky v.
 United States EPA, 767 F.2d 569, 571 (9th Cir.1985).  We review a district
 court's grant of summary judgment de novo.  T.W. Elec. Serv., Inc. v.
 Pacific Elec. Contractors Ass'n., 809 F.2d 626, 629 (9th Cir.1987).
  Rule 56(f) of the Federal Rules of Civil Procedure gives the trial court
 discretion to allow discovery prior to the grant of summary judgment where "it
 appear[s] from the affidavits of a party opposing the motion that the party
 cannot for reasons stated present by affidavit facts essential to justify the
 party's opposition."
  [4][5] In general, a denial of a Rule 56(f) application is disfavored
 where the party opposing summary judgment makes a timely application which
 specifically identifies relevant information, and where there is some basis for
 believing that the information sought actually exists.  Visa, 784 F.2d at
 1475.  On the other hand, courts have denied a Rule 56(f) application where
 the evidence sought "was almost certainly nonexistent or was the object of pure
 speculation."  Id.  (citations omitted).  We have not previously addressed
 whether it is an abuse of discretion to deny any discovery prior to hearing a
 motion for summary judgment in a FOIA case.
  On its face, Rule 56(f) leaves the decision to grant discovery wholly
 within the discretion of the district judge. [FN4]  In determining whether the
 district court abused its discretion in the cases before us, we must first
 *563 consider the peculiar disadvantages facing a FOIA plaintiff.

      FN4. See Fed.R.Civ.P. 56(f) ("[T]he court may refuse the application
     for judgment or may order a continuance to permit affidavits to be obtained
     or depositions to be taken or discovery to be had or may make such other
     order as is just.")  (emphasis added).

  [6] In a FOIA case, the government agency has control of the information.
 This creates a situation where "the court is deprived of the benefit of
 informed advocacy to draw its attention to the weaknesses in the withholding
 agency's arguments."  Weiner v. FBI, 943 F.2d 972, 977 (9th Cir.1991), cert.
 denied, 505 U.S. 1212, 112 S.Ct. 3013, 120 L.Ed.2d 886 (1992).  It is
 "unreasonable to expect a trial judge to do as thorough a job of illumination
 and characterization as would a party interested in the case."  Id.
 (quotation omitted);  see also Washington Post Co. v. U.S. DHHS, 865 F.2d
 320, 325 (D.C.Cir.1989) ("The integrity of a court's de novo [FOIA] judgment
 rests upon an adversarial system of testing for truth when critical
 adjudicative facts are subjects of a contest.")  (quotation omitted).
  The IRS cites cases from the Fourth and District of Columbia Circuits for the
 proposition that courts "normally" do not allow discovery in a FOIA case prior
 to the government's motion for summary judgment.  See Simmons v. United
 States Dept. of Justice, 796 F.2d 709 (4th Cir.1986);  Goland v. CIA, 607
 F.2d 339 (D.C.Cir.1978), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63
 L.Ed.2d 759 (1980).
  [7] Unlike Simmons and Goland, the case before us does not threaten
 the disclosure of sensitive government information.  See Miller v. United
 States Dept. of State, 779 F.2d 1378, 1383 (8th Cir.1985) (noting the special
 considerations that come into play in a FOIA case that involves issues of
 national security).  Moreover, the D.C. Circuit itself has, since Goland,
 recognized the need of a party to use discovery to establish whether an
 adequate FOIA search has taken place.  See Weisberg v. Webster, 749 F.2d
 864, 868 (D.C.Cir.1984) ("[t]he government should be able to use the discovery
 rules in FOIA suits like any other litigant, to uncover facts which will enable
 it to meet its burden of proving ... the adequacy of its search.")  (emphasis
  We make no broad statement today regarding the general discretion of a
 district court to grant or deny a Rule 56(f) motion;  the special
 disadvantages facing this FOIA plaintiff make for a special case.  Considering
 the questionable sufficiency of the Vaughn index, the apparent evasiveness
 of the IRS responses, the slim showing of a need for as extensive a cloak of
 secrecy as the Government claimed, and the absence of any opportunity for the
 Churches to conduct discovery on the adequacy of the Vaughn index and
 completeness and truthfulness of the Government declarations, it was an abuse
 of discretion entirely to bar discovery by the plaintiffs prior to the granting
 of summary judgment against them.  On remand, the district court is directed to
 provide the plaintiffs in both appeals reasonable opportunity to conduct
 discovery relevant to applicability of the FOIA exemptions or accuracy and
 completeness of the Vaughn index and declarations.
  The judgments of the district court are REVERSED and REMANDED.

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