UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

Dallas Division

ROBERT HOPKINS, III, * 

 * 

Plaintiff, * 

 * 

 v. * Civil Action No. 3:22-cv-00706 (C) 

 * 

DEPARTMENT OF DEFENSE, *

 * 

 Defendant. * 

 * 

* * * * * * * * * * * * * 

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN FURTHER 

SUPPORT OF HIS MOTION TO STAY FUTURE DEADLINES AND IN OPPOSITION 

TO DEFENDANT’S CROSS-MOTION TO AMEND SCHEDULING ORDER

 On 18 May 2023, Plaintiff Robert Hopkins (“Hopkins”) filed a routine motion to stay all 

future deadlines in this case pending resolution of his Motion for Status Conference, Dkt. #13 

(filed May 9, 2023), and a forthcoming motion to compel Defendant to process his undersigned 

counsel for temporary access to classified information. He did so to avoid overlapping and 

confusing briefing and to give the parties time to engage in the mediation ordered by the Court 

over a year ago, which Defendant has steadfastly refused to commence. He also did so because it 

serves judicial economy for the Court to resolve the question of whether Hopkins is entitled to 

have competent assistance of informed counsel who can review Defendant’s evidence and 

participate in the administrative process before discovery is completed. Defendant now attempts 

to use its own delays and obstructions to bootstrap itself into an order not only negating the 

Court’s previous mediation order but also removing any ability for Hopkins to engage in 

discovery—or even argue that he is entitled to informed counsel—until after a round of summary 

judgment briefing in which the undersigned can see neither the Government’s evidence nor his 

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own client’s. The Court should grant Hopkins’s reasonable Motion and soundly reject 

Defendant’s attempt to avoid all meaningful judicial review. 

Defendant’s argument leans heavily on its assertion that its proposed process “has been 

uniformly applied in prepublication review challenges” (Def.’s Part. Opp’n Pl.’s Mot. Stay, 

Opposed Cross-Mot. Amend Sched. Order, & Unopposed Req. Expedited Consideration, Dkt. 

#17, at 5 (filed May 24, 2023) [hereinafter Def.’s Opp’n]), which, in addition to being an 

exaggerated reading of its previous statements (see id. at 2 (describing process as “routinely

adopted by courts” (emphasis added)), 4 (“[C]ourts have generally followed” process (emphasis 

added))), is transparently false according to the very cases cited by Defendant for this 

proposition. In McGehee v. Casey, the plaintiff and his counsel were allowed to review both of 

the Central Intelligence Agency’s (“CIA”) classified in camera affidavits and draft and file 

classified in camera affidavits in response. Br. for Appellants at 6-7, McGehee v. Casey, No. 81-

2233 (D.C. Cir.) (excerpt attached as Ex. A). McGehee’s attorney explained the procedure 

thusly:

[I]n McGehee the way that worked I had access to the manuscript that was in 

dispute. I went out to the CIA with my client, I read the affidavits that the CIA filed. 

My client and I drafted counter-affidavits. A secretary at the CIA typed them up. I 

delivered them to somebody in the General Counsel’s office, and after that, the 

lawyer got them filed with the court. Our notes and everything were kept out there. 

Tr. of 4/26/02 Mot. Hrg. at 105:25-106:8, Stillman v. DOD, No. 01-1342 (D.D.C.) (excerpt 

attached as Ex. B).1

McGehee was not the only such case where a comparable process was followed. In Alfred 

A. Knopf, Inc. v. Colby, the author and his counsel directly participated in negotiations with the 

agency, after which the agency reversed its position on 114 out of 339 items. 509 F.2d 1362, 

1 The line preceding this quote contains a scrivener’s error when it states, “I wasn’t the attorney 

in McGehee.” Id. at 105:24. Mr. Lynch was clearly the attorney in that case. See, e.g., Ex. A at 1.

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1365 (4th Cir. 1975). Moreover, regarding the question of whether discovery should be stayed 

pending the Court’s resolution of Hopkins’s forthcoming motion to compel—let alone 

Defendant’s intended motion for summary judgment—it should be noted that unclassified 

discovery was conducted without objection in the Stillman case on which Defendant so heavily 

relies while the plaintiff’s motion to compel was being briefed. See Pl.’s 1st Req. Upon Defs. 

CIA, DIA & DOD for Prod. of Docs., Dkt. #28-1 (filed Dec. 7, 2001), Stillman v. Dep’t of 

Energy, No. 01-1342 (D.D.C.); Defs.’ Resp. Pl.’s 1st Req. for Prod. of Docs., Dkt. #35-1 (filed 

Feb. 22, 2002), Stillman v. Dep’t of Energy, No. 01-1342 (D.D.C.) (collectively attached as Ex. 

C). Moreover, both the discovery and the motion to compel were addressed before the 

Government’s motion for summary judgment at the Government’s request. See Not. of Filing, 

Dkt. #24, at 1 (filed Oct. 23, 2001) (“Defendants believe . . . deferring the filing of defendants’ 

motion for summary judgment until after a ruling on Plaintiff’s Motion to Compel Defendants to 

Permit His Attorney’s Access to Classified Manuscript and Pleadings (filed Oct. 19, 2001) . . . is 

necessary in order to allow defendants a reasonable time to reassess their litigation strategy.”), 

Stillman v. Dep’t of Energy, No. 01-1342 (D.D.C.) (attached as Ex. D). 

At this point, Hopkins will digress, since, despite Defendant’s efforts to the contrary, the 

parties are not briefing the question of whether or not Hopkins’s counsel should be processed for 

access to classified information; they are briefing the question of whether the Court should allow 

mediation and discovery to continue while that briefing takes place, as well as whether 

Defendants should be allowed to refuse to brief that question until after the Court has adjudicated 

a motion for summary judgment. The above examples simply serve to show that the matter is far 

more complex than Defendant lets on, and its claim that its preferred course of litigation is 

ubiquitous is a transparent attempt to mislead the Court about the actual history of the cases it 

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cites. It should suffice to say that the line quoted by Defendant from McGehee that “[w]e 

anticipate that in camera review of affidavits, followed if necessary by further judicial inquiry, 

will be the norm” (Def.’s Opp’n at 5 (quoting 718 F.2d 1137, 1149 (D.C. Cir. 1983))), does not 

mean what Defendant makes it out to mean. In light of the factual history of that case, it is clear 

that the D.C. Circuit chose its words carefully, pointedly not including “ex parte” in the 

sentence. That court knew that the adversarial process was key to resolving the important 

questions at issue and was referring to a process wherein both parties submitted in camera

affidavits after the participation of both parties’ counsel, just as had been done in that case. 

Whether this Court agrees with this conclusion is a question for another day, but it cannot 

conclude that the answer is so obvious that Hopkins should not even be allowed to make the 

argument in a timely fashion.2

Hopkins will briefly respond to two of Defendant’s other arguments before concluding 

this brief, in roughly the order in which they are presented, so as to give the Court a more 

accurate picture of the matter in controversy. The first such argument is the subtle conflation of

“classified [and] sensitive information” (id. at 3), where Defendant cites case after case in which 

a court discussed the publication of classified information in support of its argument that it 

should be allowed to prevent the undersigned from learning “sensitive” information as well. The 

Court should take careful note of the fact that one of the key issues which gave rise to Hopkins’s 

original motion for a status conference is the fact that Defendant refuses to identify for the 

2 Furthermore, it is uncontroverted that if Defendant claims that a piece of information is 

classified, Hopkins cannot provide his countervailing evidence that it is not—which would 

necessitate identifying the allegedly classified information—to his undersigned counsel without 

Defendant complaining that he is revealing classified information to someone not entitled to 

receive it. By Defendant’s own argument, the undersigned would therefore be unable to read his 

own client’s declaration refuting the Government’s claims, grossly impairing Hopkins’s First 

Amendment right to be represented by competent counsel. This is the cost of following 

Defendant’s proposed course of litigation.

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undersigned the unclassified, “sensitive” information that it redacted from five of Hopkins’s 

seven manuscripts and continues to insist that he cannot participate in discussions about those

redactions either. (Pl.’s Unopposed Mot. Stat. Conf., Dkt. #13, at 7-10 (filed May 9, 2023).) The 

Court should not presume that all—or even most—of the information being redacted by 

Defendant is in fact alleged to be classified unless Defendant proves otherwise, and until then, it 

cannot presume that any of the cited case law—none of which originated in this Circuit, it should 

be further noted—is at all applicable to the question before it.

Secondly, Defendant makes the inexplicable claim, “By setting the deadline for motions 

for summary judgment before the deadline for completing discovery, the Court’s order appears 

to contemplate deciding the motions for summary judgment before the parties engage in 

discovery.” (Id. at 7 n.1.) This is a nonsensical statement. As this Court has previously held, “a

motion for summary judgment may be filed at any time after an ‘adequate time for discovery.’” 

Simpson v. Panhandle S. Plains Fair. Ass’n, No. 00-377, 2001 U.S. Dist. LEXIS 15080, at *4 

(N.D. Tex. Aug. 9, 2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The 

Court simply stated that summary judgment motions must be filed before discovery is completed, 

not before it is commenced. This conclusion is supported by the basic fact that the standard for a 

“good cause” extension of the end of discovery under Federal Rule of Civil Procedure 16(b)(4) is 

diligence, Squyres v. Heico Cos., LLC, 782 F.3d 224, 237 (5th Cir. 2015), and courts have held 

that failing to conduct discovery until the end of the discovery period demonstrates a lack of 

diligence on a party’s part. See, e.g., Neighborhood Networks Pub., Inc. v. Lyles, No. 19-89, 

2021 U.S. Dist. LEXIS 18445, at *20-21 (E.D.N.C. Jan. 31, 2021). It does not require a great 

deal of imagination to predict what Defendant’s response would have been if Hopkins had 

waited until August—after the parties had completed summary judgment briefing—to begin

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discovery, let alone requested an extension of the 11 September 2023 deadline simply because 

the summary judgment motion was pending. Its argument, then, that the Court intended for such 

an outcome while also pointedly stating that “[d]eadlines will not be extended except upon good 

cause shown and by order of the Court” (Sched. Order, Dkt. #12, at 1 (filed June 13, 2022) 

(quotation marks omitted)) defies credulity and further demonstrates the lack of good faith 

Defendant has exercised throughout this case.

 The Court should grant Hopkins’s Motion, deny Defendant’s cross-motion, and stay all 

future deadlines, without affecting the current course of mediation or discovery or tolling the 

briefing of Hopkins’s forthcoming motion to compel.

Date: June 1, 2023 

 Respectfully submitted,

/s/ Kelly B. McClanahan 

 Kelly B. McClanahan, Esq. 

 N.D. Tex. Bar #984704DC 

 National Security Counselors 

 4702 Levada Terrace 

 Rockville, MD 20853

 301-728-5908 

 240-681-2189 fax 

 Kel@NationalSecurityLaw.org

Counsel for Plaintiff

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