UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRENT TAYLOR, : : Plaintiff, : Ci vil Action No.: 03-0173 (RMU) : v. : Re Document No.: 60 : J. RANDOLPH BABBITT, Administrator, : Federal Aviation Administration, et al. , : : Defendants. :

MEMORANDUM OPINION

D ENYING W ITHOUT P REJUDICE THE P LAINTIFF ’ S M OTION TO A LLOW D ISCOVERY I. INTRODUCTION This matter comes before the court on the pl aintiff’s renewed motion for discovery. The plaintiff commenced this action pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking to compel the Federal Aviation Administration (“FAA”) to disclose design specifications for an antique aircraft called the Fairchild F-45. The Fa irchild Corporation, the alleged record owner of the F-45 design specif ication, has intervened as a defendant. The plaintiff now seeks discovery related to his under lying FOIA request. Because discovery is not warranted at this time, the court denies the plai ntiff’s motion without prej udice to reconsideration

of a renewed motion filed after the defe ndants have moved for summary judgment.

II. FACTUAL & PROCEDURAL BACKGROUND The facts underlying this dispute are set forth in a prior memorandum opinion. See Mem. Op. (May 12, 2005). On January 5, 2004, the plaintiff file d a motion to allow discovery. See

Pl.’s 1st Mot. for Disc. Thr ough his motion, the plaintiff sought information related to whether2 the requested F-45 design specifica tions were actually maintained as a trade secret, as asserted by the FAA. Id. The court denied the plaintiff’s mo tion, holding that discovery in the FOIA action was unwarranted before the government filed its motion for summary judgment. See Mem. Op. (Aug. 12, 2004). On November 15, 2004, th e Fairchild Corporation intervened as a

defendant. See Mem. Order (Nov. 15, 2004). Subseque ntly, on January 10, 2005, the defendants filed a motion to dismiss or, in the alternativ e, for summary judgment , arguing that claim preclusion barred the plaintiff’s action because, unde r the doctrine of “virtual representation,” the plaintiff was in privity with a plaintiff that had previously initiated a similar action in the Tenth

Circuit. See Defs.’ Mot. for Summ. J. at 12-21. The defendants also argued that the materials requested by the plaintiff were exempt from disc losure pursuant to the trade secret exemption of FOIA (“Exemption 4”). Id. at 22-36. The court granted the defendants’ motion fo r summary judgment, concluding that the action was barred by the doctr ine of claim preclusion. See Mem. Op. (May 12, 2005). Consequently, the court dec lined to pass on the parties’ Exemption 4 arguments. Id. The Circuit affirmed the court’s holding on the claim preclus ion issue, and did not address whether the records sought were exempt from disclosure under Exemption 4. See Taylor v. Blakey , 490 F.3d 965, 977 (D.C. Cir. 2007). The Supr eme Court granted certiorari, see Taylor v. Sturgell , 128 S. Ct. 977 (2008), and vacated the Circuit’s ru ling on the virtual re presentation issue, see Taylor v. Sturgell , 128 S. Ct. 2161, 2167 (2008). Following rema nd, the plaintiff filed a renewed motion for discovery to which the court now turns. See generally Pl.’s 2d Mot. for Disc. (“Pl.’s Mot.”).3 II. ANALYSIS A. Legal Standard for Discovery in FOIA Cases As a general rule, “[d]iscovery in FOIA [actions] is rare and should be denied where an agency’s declarations are reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute remains.” Schrecker v. Dep’t of Justice , 217 F. Supp. 2d 29, 35 (D.D.C. 2002), aff’d , 349 F.3d 657 (D.C. Cir. 2003); see also Judicial Watch, Inc. v. Dep’t of Justice , 185 F. Supp. 2d 54, 65 (D.D.C. 2002) (noting that “[d]isc overy is not favored in lawsuits under the FOIA”). Discovery is only appropriate when it appears an agency has not undertaken an adequate search for responsive documents, Schrecker , 217 F. Supp. 2d at 35, or, when necessary, to determine the applicability of FOIA disclosure exemptions, see Miscavige v. Internal Revenue

Serv. , 2 F.3d 366, 369 (11th Cir. 1993); Ray v. Turner , 587 F.2d 1187, 1195 (D.C. Cir. 1978) (holding that the distri ct court may require in camera review to determine whether a disclosure exemption applies); Kay v. Fed. Commc’ns Comm’n , 976 F. Supp. 23, 33 (D.D.C. 1997). Discovery is not warranted “when it appears that di scovery would only . . . afford[] [the plaintiff] an opportunity to pursue a bare hope of falling upon something that might impugn the

affidavits.” Military Audit Project v. Casey , 656 F.2d 724, 751-52 (D.C. Cir. 1981) (internal quotations omitted); see also Broaddrick v. Execu tive Office of the President , 139 F. Supp. 2d 55, 63-64 (D.D.C. 2001). If an agency’s affidavits regarding its search ar e sufficient, the judge has broad discretion to forgo discovery. Meeropol v. Meese , 790 F.2d 942, 960-61 (D.C. Cir. 1986); see also Schleeper v. Dep’t of Justice , 1999 WL 325515, at *1 (D.C. Cir. Apr. 30, 1999) (per curiam) (affirming the lower court’s denial of discovery). Even if an agency’s affidavits regarding its search are deficient, courts genera lly do not grant discovery but instead direct the agency to supplement its affidavits. Judicial Watch , 185 F. Supp. 2d at 65.4 B. Discovery is Unwarranted at this Time As this court noted in a prior opinion, see Mem. Op. (Aug. 3, 2004), in the exceptional case in which a court permits discovery in a FO IA action, such discovery should only occur after the government has moved for summary judgment, see, e.g. , Miscavige , 2 F.3d at 369 (holding that a plaintiff’s request for discovery is inappropriate until the government has had an opportunity to provide the court with the info rmation necessary to make a decision on the applicable FOIA exemptions); Krieger v. Fadely , 199 F.R.D. 10, 14 (D.D.C. 2001) (stating that discovery in FOIA cases shoul d “ordinarily occur after the government moves for summary judgment”); Murphy v. FBI , 490 F. Supp. 1134, 1136 (D.D.C. 1980) (asserting that whether a case “warrants discovery is a quest ion of fact that can only be determined after the defendants file their dispositive motion and accompanying affidavits”). Postponing discovery until the government has submitted its dispositive motion and supporting documents allows the court to obtain information necessary to appropriately limit the scope of discovery or forgo it entirely.

See Murphy , 490 F. Supp. at 1137 (noting that requiring the government to submit its dispositive motion before ordering discovery provides informa tion as to whether discovery is necessary); see also Weisberg v. U.S. Dep’t of Justice , 627 F.2d 365, 371 (D.D.C. 1980) (asserting that courts have ample authority to set limitations to protect agencies from oppressive discovery); Judicial Watch, Inc. , 185 F. Supp. 2d at 65 (stating that when an agency’s supporting documents are insufficient to grant summary judgment, the cour t may order limited discovery but will typically only require the agency to supplement its supporti ng declarations). If, after the government has submitted its motion for summary judgment, the pl aintiff is unable to oppose the motion without further discovery, he may file a Rule 56(f) motion. F ED

. R. C IV

. P. 56(f) (providing that a court may stay a summary judgment motion and orde r discovery “if a party opposing the motion5 shows by affidavit that, for speci fied reasons, it cannot present f acts essential to justify its opposition”); see, e.g. , Schaffer v. Kissinger , 505 F.2d 389, 390-91 (D.C. Cir. 1974); Am. Broad. Co. v. U.S. Info. Agency , 599 F. Supp. 765, 768 (D.D.C. 1984). In this case, the plaintiff’s motion for disc overy seeks information related to (1) whether the design specifications sought were maintained as a trade secret and (2 ) whether the Fairchild Corporation is truly the record ow ner of the F-45 certificate. Pl.’s Mot. at 5. The plaintiff claims that without this information, he will be una ble to effectively oppos e a potential motion for summary judgment made by the defendants. Id. at 6. The appropriate mechanism for the plaintiff to seek such relief, however, is thr ough a Rule 56(f) motion filed after the government submits its renewed motion for summary judgment. 1 See, e.g . , Schaffer , 505 F.2d at 390-91;

Am. Broad. Co. , 599 F. Supp. at 768. At that point, th e court will have had the opportunity to review the merits of the defendants’ exempti on claim and will be better suited to make a discovery ruling. 2 Accordingly, the court denies the plaintiff’s motion without prejudice to

reconsideration of a renewed motion filed after the defendants have moved for summary judgment by the date specified in the accompanying Order.

1 In their opposition to the plaintiff’s motion for discovery, the defendants state that they will renew their motion for summary judgment but will not pursue the claim preclusion issue. Defs.’ Opp’n at 5.

2 The court is aware that the defendants have pr eviously submitted a motion for summary judgment and supporting documents. Because, however, the court resolved the previous motion solely on claim preclusion grounds, the court declined to a ddress the exemption issue and did not consider the substance of the defendants’ argument. See generally Taylor v. Blakey , 2005 WL 6003553 (D.D.C. May 12, 2005), aff’d, 490 F.3d 965, 977 (D.C. Cir. 2007), vacated and remanded sub. nom. Taylor v. Sturgell , 128 S. Ct. 2161 (2008). Furtherm ore, the defendants’ renewed motion may shed additional light on the exemption issue.6 IV. CONCLUSION For the foregoing reasons, the court denies the plaintiff’s renewe d motion for discovery without prejudice to reconsidera tion of a renewed motion filed af ter the defendants have moved for summary judgment. An Order consistent wi th this Memorandum Opinion is separately and contemporaneously issued this 15th day of December, 2009.

RICARDO M. URBINA United States District Judge