1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

___________________________________ 

 ) 

DAVID COLE, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civil Action No. 

 ) 15-1991 (EGS) 

KENT B. ROCHFORD,1 et al., ) 

 ) 

 Defendants. ) 

___________________________________) 

MEMORANDUM OPINION AND ORDER 

Plaintiff David Cole seeks records from the Federal 

Emergency Management Agency ("FEMA") under the Freedom of 

Information Act ("FOIA"), 5 U.S.C. § 552. Although Mr. Cole 

submitted his request in May 2011, FEMA failed to produce any 

documents until April 2016, approximately five months after Mr. 

Cole filed this lawsuit. Since that time, FEMA has produced 

responsive records and a Vaughn index, and the parties have made 

efforts to narrow the areas of dispute remaining between them. 

Unable to make further progress, but before either party had 

filed a motion for summary judgment, Mr. Cole filed the instant 

motion for leave to take limited discovery. See Pl.'s Mot. for 

 

1 Pursuant to Federal Rule of Civil Procedure 25(d), the 

Court substitutes as defendant the Acting Director of the 

National Institute for Standards and Technology, Kent B. 

Rochford, for former Director of the National Institute for 

Standards and Technology, Willie E. May. 
2 

Discovery ("Pl.'s Mot."), ECF No. 15. As explained more fully 

below, Mr. Cole's motion for discovery is denied. 

I. BACKGROUND 

A. Plaintiff's FOIA Request 

On May 20, 2011, plaintiff David Cole submitted a FOIA 

request to FEMA for certain documents related to the collapse of 

World Trade Center buildings on September 11, 2001. See Compl. ¶ 

9, ECF No. 1. Specifically, Mr. Cole requested "all background 

or raw data used for the FEMA 403 Building Performance Study" 

regarding the World Trade Center buildings, "including 

photographs, video, audio, field notes, memoranda, lab samples, 

and lab results." Id. 

B. The Government's Efforts to Respond to Plaintiff's 

FOIA Request 

FEMA acknowledged receipt of Mr. Cole's request six days 

after receiving it, and the agency advised Mr. Cole that it had 

"queried the appropriate component of FEMA for responsive 

records." See Pl.'s Mot. Ex. 9, ECF No. 15-14. On December 23, 

2011, FEMA sent Mr. Cole a letter explaining that, while it had 

been unable to locate any responsive records, it understood that 

the information sought by Mr. Cole was "under the purview of the 

National Institute of Standards and Technology ("NIST")." Pl.'s 

Mot. Ex. 6, ECF No. 15-11. FEMA therefore transferred Mr. Cole's 

FOIA request to NIST for processing. Id. On June 29, 2012, NIST 

confirmed that it had searched for records responsive to Mr. 
3 

Cole's request and had determined that 3,789 pages of records 

were releasable in whole or in part. Pl.'s Mot. Ex. 7, ECF No. 

15-12. 

On August 30, 2012, FEMA notified Mr. Cole that it had 

approximately 490,000 pages of boxed records pertaining to the 

World Trade Center in storage at the National Archives and 

Records Administration ("NARA"). Pl.'s Mot. Ex. 8, ECF No. 15-

13. Although the inventory of those records did "not readily 

indicate any additional responsive material," FEMA explained 

that Mr. Cole could "submit a new FOIA request if [he] was 

interested in searches being conducted on these records." Id.

Having not received any documents from either FEMA or NIST, 

Mr. Cole filed this lawsuit on November 12, 2015. See Compl. ¶ 

23, ECF No. 1; Pl.'s Mot. Ex. 5 ¶ 8, ECF 15-10. FEMA finally 

produced documents in April 2016, almost five years after Mr. 

Cole submitted his FOIA request. See Second Joint Status Report 

at 1 (June 7, 2016), ECF No. 9. Mr. Cole reviewed the records he 

received and, on June 7, 2017, sent an email to defendants' 

counsel identifying "a preliminary list of responsive records, 

and in some cases individually identifiable responsive records, 

not provided" to him in FEMA's production. Pl.'s Mot. Ex. 1 at 

1, ECF No. 15-3. For example, Mr. Cole noted that a document 

produced by FEMA "show[ed] that a set of WTC7 drawings was sent 

. . . to FEMA contractor Gilsanz Murray Steficek" but that those 
4 

drawings were not produced by FEMA. Id. Mr. Cole also pointed to 

an inventory of records transferred from FEMA to NIST which 

listed CDs and drawings that he believed were responsive to his 

FOIA request but had not been produced. Id. at 1-2. 

The government responded to Mr. Cole's email on August 23, 

2016. See Pl.'s Mot. Ex. 2, ECF No. 15-7. With respect to the 

CDs and video Mr. Cole had specifically inquired about in his 

June email, FEMA explained that it had been "unable to locate 

any additional drawings" in its search for responsive records. 

Id. at 1 (emphasis added). With respect to drawings and other 

documents requested by Mr. Cole, FEMA explained that it had 

"been unable to locate" those records "in a search of the 

materials in the Disclosure Branch, where the documents returned 

by NIST have been retained because of Mr. Cole's FOIA requests." 

Id. at 1-2. FEMA further stated that the requested materials 

"may be available in [FEMA Region 2's] Regional off site 

archives" and that the agency would be "willing to send two of 

its personnel to the warehouse to perform a reasonable search" 

for the records. Id. 

Mr. Cole agreed that FEMA should conduct a search of its 

Region 2 archives and proposed that, if the records were not 

found, FEMA should "explain how it could be that these records . 

. . cannot be found, and state what happened to them." Pl.'s 

Mot. Ex. 3, ECF No. 15-8. Approximately six weeks later, FEMA 
5 

responded that, "[a]fter consulting with the [subject-matter 

expert], it was determined that there is no FEMA Region 2 

archive and the responsive records were not sent to the NARA 

archives." See Pl.'s Mot. Ex. 4 at 2-4, ECF No. 15-9. FEMA 

explained that this was its "final response" and that no 

additional records would be produced. Id. at 1. 

C. Plaintiff's Request for Discovery 

On March 27, 2017, Mr. Cole filed the instant motion for 

leave to conduct limited discovery. See Pl.'s Mot., ECF No. 15. 

Mr. Cole argues that discovery "is appropriate in a FOIA action 

when it is apparent that the Defendant agency had not provided 

complete disclosure of the records responsive to the plaintiff's 

FOIA request." Pl.'s Mem. in Supp. of Pl.'s Mot. at 2, ECF No. 

15-1. According to Mr. Cole, the Court should allow discovery 

"regarding the nature and scope of Defendants' records searches 

(or lack thereof)" here because Mr. Cole has "presented evidence 

that raises serious doubt about . . . whether Defendants have 

made a complete disclosure and conducted an adequate search." 

Id. at 8. 

Mr. Cole further argues that FEMA's responses to his FOIA 

request "raise serious questions regarding whether Defendants' 

search for and production of documents . . . has been in good 

faith." Id. at 10. For example, Mr. Cole points to FEMA's 

"completely off point" statement that it was unable to locate 
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"additional drawings" in response to Mr. Cole's inquiry about 

CDs and a video. Id. In addition, Mr. Cole asserts that FEMA's 

responses raise questions as to whether it "engaged in blatantly 

inadequate search efforts" and whether it had "complied with 

FOIA's mandate that the agency conduct a reasonable search for 

the records in electronic form or format." Id. at 14-15. 

Based on these allegations, Mr. Cole seeks leave to conduct 

limited discovery pursuant to a joint discovery plan that he 

intends to submit after consultation with government counsel. 

Id. at 20. As part of this limited discovery, Mr. Cole requests 

that the Court grant him leave to take "at least some 

depositions" because "[d]epositions have the greatest potential 

for determining the adequacy of Defendants' search efforts and 

why key records have not been produced." Id.

II. LEGAL STANDARD 

It is well established that discovery is rare in FOIA 

cases. See, e.g., Harrison v. Fed. Bureau of Prisons, 681 F. 

Supp. 2d 76, 80 (D.D.C. 2010) ("'[d]iscovery is not favored in 

lawsuits under the FOIA'") (citation omitted); Thomas v. Food & 

Drug Admin., 587 F. Supp. 2d 114, 115, n.1 (D.D.C. 2008) 

("discovery is an extraordinary procedure in a FOIA action"). 

Indeed, in the FOIA context, courts have permitted discovery 

only in exceptional circumstances where a plaintiff raises a 

sufficient question as to the agency's good faith in searching 
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for or processing documents. See, e.g., Citizens for 

Responsibility & Ethics in Washington v. U.S. Dep't of Justice, 

No. 05-CV-2078, 2006 WL 1518964, at *3-6 (D.D.C. June 1, 2006) 

(permitting discovery in a FOIA action where the government 

engaged in extreme delay); Landmark Legal Found. v. E.P.A., 959 

F. Supp. 2d 175, 184 (D.D.C. 2013) (ordering discovery in a FOIA 

action on the question of whether senior administrators used 

personal emails for official business and whether the EPA 

excluded key officials from their initial search); see also 

Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 

318 (D.C. Cir. 2006) (district court properly denied plaintiff's 

discovery request where plaintiff "offered no evidence of bad 

faith to justify additional discovery"). Discovery may also be 

appropriate if agency affidavits "do not provide information 

specific enough to enable [the plaintiff] to challenge the 

procedures utilized." Weisberg v. Dep't of Justice, 627 F.2d 

365, 371 (D.C. Cir. 1980). 

A district court has "broad discretion" in denying 

discovery in FOIA cases. Beltranena v. Clinton, 770 F. Supp. 2d 

175, 187 (D.D.C. 2011). In determining whether limited discovery 

may be appropriate, a court typically evaluates an agency's 

affidavits regarding its search; where such affidavits are 

"reasonably detailed" and "submitted in good faith," discovery 

is ordinarily denied. See SafeCard Servs., Inc. v. S.E.C., 926 
8 

F.2d 1197, 1200 (D.C. Cir. 1991); Pinson v. U.S. Dep't of 

Justice, 55 F. Supp. 3d 80, 82 (D.D.C. 2014). Because an agency 

usually submits these affidavits in support of its summary 

judgment motion, courts generally do not allow discovery in FOIA 

actions until after the government has moved for summary 

judgment. See, e.g., Taylor v. Babbitt, 673 F. Supp. 2d 20, 23 

(D.D.C. 2009) ("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"); Murphy v. 

F.B.I., 490 F. Supp. 1134, 1136 (D.D.C. 1980) ("Whether the 

instant case warrants discovery is a question of fact that can 

only be determined after the defendants file their dispositive 

motion and accompanying affidavits."). 

III. ANALYSIS 

Based on the facts above, Mr. Cole has raised significant 

questions as to whether FEMA has processed documents in good 

faith in response to Mr. Cole's FOIA request. Indeed, the Court 

is troubled by multiple aspects of the government's actions at 

issue here. Mr. Cole submitted his FOIA request in May 2011 but 

did not receive any documents until after he filed this lawsuit 

almost five years later in April 2016. This is all the more 

concerning given that NIST had determined that it possessed 

3,789 pages of responsive records by the end of June 2012. 

The Court is also troubled by the government's 
9 

inconsistent, even contradictory, responses to Mr. Cole's 

inquiries regarding his FOIA request. For example, FEMA 

initially represented that it had located 490,000 pages of 

potentially responsive records in storage at NARA. See Pl.'s 

Mot. Ex. 8, ECF No. 15-13. Later, FEMA also represented that 

potentially responsive records may be located in regional 

offsite archives. Pl.'s Mot. Ex. 2, ECF No. 15-7. But in its 

final response, FEMA stated that no such archives existed and 

that it had been unable to find any additional responsive 

documents. Pl.'s Mot. Ex. 4, 15-9. In this correspondence, FEMA 

nowhere provided a clear explanation as to its changing position 

regarding the availability of additional records. 

Despite these concerns, the Court concludes that discovery 

is premature at this juncture. Discovery in FOIA cases is the 

exception, and it is generally limited to cases in which factual 

disputes persist – for example, where "the adequacy of the 

[agency's] search remains in doubt." Weisberg v. U.S. Dep't of 

Justice, 627 F.2d 365, 371 (D.C. Cir. 1980). Although that may 

indeed be the case here, because the government has not yet 

moved for summary judgment – and therefore has not submitted any 

declarations setting forth details related to its search for 

documents responsive to Mr. Cole's request – the Court does not 

have sufficient information to determine whether a genuine 

factual dispute exists or whether Mr. Cole requires additional 
10 

facts essential to oppose the government's motion. Therefore, 

the Court cannot determine at this time whether discovery is 

warranted and, if it is, how it should be limited in scope. See, 

e.g., Murphy v. F.B.I., 490 F. Supp. 1134, 1137 (D.D.C. 1980) 

("In the instant case, the government has yet to file its 

affidavits. The plaintiff therefore cannot possess the 

prescience to predict whether a factual issue will emerge."). 

Once the government moves for summary judgment, Mr. Cole 

may renew his motion for discovery if he is able to show "by 

affidavit or declaration that, for specified reasons, [he] 

cannot present facts essential to justify [his] opposition" to 

the government's motion. See Fed. R. Civ. P. 56(d); Taylor v. 

Babbitt, 673 F. Supp. 2d 20, 23 (D.D.C. 2009) ("The plaintiff 

claims that without this information, he will be unable to 

effectively oppose a potential motion for summary judgment made 

by the defendants. The appropriate mechanism for the plaintiff 

to seek such relief, however, is through a Rule [56(d)] motion 

filed after the government submits its renewed motion for 

summary judgment."). Moreover, if Mr. Cole believes that FEMA's 

declarations are insufficient to show that its search was 

adequate, he may oppose the government's motion for summary 

judgment on that ground. If the Court agrees with Mr. Cole, it 

may reconsider Mr. Cole's request for discovery at the summaryjudgment stage. See Leopold v. Nat'l Sec. Agency, No. 14-CV-
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0919, 2015 WL 12964654, at *1 (D.D.C. Feb. 20, 2015) (explaining 

that an argument that an agency's affidavits are deficient is 

often "best presented in the context of an opposition to 

Defendant's motion for summary judgment or as a cross-motion for 

summary judgment, rather than as a basis for seeking 

discovery"); North v. U.S. Dep't of Justice, 729 F. Supp. 2d 74, 

77–78 (D.D.C. 2010) (explaining that "if Plaintiff believes that 

the declarations submitted by [the agency] are inadequate to 

establish that the agency's searches were adequate," plaintiff 

should "explain his argument in his opposition" to the agency's 

summary-judgment motion). 

IV. CONCLUSION 

For the foregoing reasons, it is hereby ORDERED that [15] 

Mr. Cole's motion for discovery is DENIED. It is FURTHER ORDERED

that the parties shall submit a joint status report with a 

recommendation for further proceedings, including, if 

appropriate, a proposed schedule for briefing on summary 

judgment, by no later than January 22, 2018. 

SO ORDERED. 

Emmet G. Sullivan 

United States District Court 

January 3, 2018