UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

BRENT TAYLOR, : 

 : 

Plaintiff, : Civil Action No.: 03-0173 (RMU) 

 : 

 v. : Re Document No.: 60 

 : 

J. RANDOLPH BABBITT, Administrator, : 

Federal Aviation Administration, et al., : 

 : 

 Defendants. : 

MEMORANDUM OPINION

DENYING WITHOUT PREJUDICE THE PLAINTIFF’S MOTION TO ALLOW DISCOVERY 

I. INTRODUCTION 

This matter comes before the court on the plaintiff’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 Fairchild Corporation, the 

alleged record owner of the F-45 design specification, has intervened as a defendant. The 

plaintiff now seeks discovery related to his underlying FOIA request. Because discovery is not 

warranted at this time, the court denies the plaintiff’s motion without prejudice to reconsideration 

of a renewed motion filed after the defendants 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 filed a motion to allow discovery. See 

Pl.’s 1st Mot. for Disc. Through his motion, the plaintiff sought information related to whether 
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the requested F-45 design specifications were actually maintained as a trade secret, as asserted 

by the FAA. Id. The court denied the plaintiff’s motion, 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, the Fairchild Corporation intervened as a 

defendant. See Mem. Order (Nov. 15, 2004). Subsequently, on January 10, 2005, the defendants 

filed a motion to dismiss or, in the alternative, for summary judgment, arguing that claim 

preclusion barred the plaintiff’s action because, under 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 disclosure pursuant to the trade secret exemption of 

FOIA (“Exemption 4”). Id. at 22-36. 

The court granted the defendants’ motion for summary judgment, concluding that the 

action was barred by the doctrine of claim preclusion. See Mem. Op. (May 12, 2005). 

Consequently, the court declined to pass on the parties’ Exemption 4 arguments. Id. The Circuit 

affirmed the court’s holding on the claim preclusion 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 Supreme Court granted certiorari, see Taylor v. Sturgell, 128 S. 

Ct. 977 (2008), and vacated the Circuit’s ruling on the virtual representation issue, see Taylor v. 

Sturgell, 128 S. Ct. 2161, 2167 (2008). Following remand, 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.”). 
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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]iscovery 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 district 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 discovery 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. Executive Office of the President, 139 F. Supp. 2d 

55, 63-64 (D.D.C. 2001). If an agency’s affidavits regarding its search are 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 generally do not grant discovery but instead direct the 

agency to supplement its affidavits. Judicial Watch, 185 F. Supp. 2d at 65. 
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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 FOIA 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 information 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 should “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 question 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 information 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 court may order limited discovery but will typically 

only require the agency to supplement its supporting declarations). If, after the government has 

submitted its motion for summary judgment, the plaintiff is unable to oppose the motion without 

further discovery, he may file a Rule 56(f) motion. FED. R. CIV. P. 56(f) (providing that a court 

may stay a summary judgment motion and order discovery “if a party opposing the motion 
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shows by affidavit that, for specified reasons, it cannot present facts 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 discovery 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 owner of the F-45 certificate. Pl.’s Mot. at 5. The plaintiff claims 

that without this information, he will be unable to effectively oppose 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 through 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, the court will have had the opportunity to 

review the merits of the defendants’ exemption 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 previously 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 address 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). Furthermore, the defendants’ renewed motion 

may shed additional light on the exemption issue. 
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IV. CONCLUSION 

For the foregoing reasons, the court denies the plaintiff’s renewed motion for discovery 

without prejudice to reconsideration of a renewed motion filed after the defendants have moved 

for summary judgment. An Order consistent with this Memorandum Opinion is separately and 

contemporaneously issued this 15th day of December, 2009. 

 

 RICARDO M. URBINA 

United States District Judge