IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MARK A. MANN, 

Plaintiff, 

v. 

UNITED STATES OF AMERICA, 

Defendant. 

Mark A. Mann 

1123 NW Canyon Drive 

Redmond, OR 97756 

Plaintiff, appearing pro se 

S. Amanda Marshall 

United States Attorney 

Kevin Danielson 

Assistant United States Attorney 

1000 SW Third Avenue, Suite 600 

Portland, OR 97204-2902 

Attorneys for Defendant 

1 OPINION AND ORDER 

Civ. No. 6:14-CV-01774-AA 

OPINION AND ORDER 

Case 6:14-cv-01774-AA Document 24 Filed 05/05/15 Page 1 of 6
AIKEN, Chief Judge: 

Plaintiff Mark Mann filed suit against the United States of 

America (United States), alleging that the United States, through 

the Department.of Transportation (DOT), violated the Freedom of 

Information Act (FOIA) by withholding information plaintiff 

requested. Plaintiff seeks attorneys fees, an order to produce 

documents, and an order enjoining the United States from denying 

future FOIA requests for data in LandXML format when such data 

exists. Defendant now moves for a protective order pursuant to Fed. 

R. Ci v. P. 2 6 (c) to forbid discovery requested by plaintiff. 

Plaintiff opposes defendant's motion and in response filed a motion 

to compel discovery. 

Defendant's motion for a protective order is granted and 

plaintiff's motion to compel discovery is denied. 

I. BACKGROUND 

Plaintiff's claim arises from a FOIA request he made for 

design-related information in "LandXML format," regarding the 

Tiller Trail Highway Project in Oregon. De£.' s Mt. at 2; Pl.'s 

Comp. at 5. The DOT denied plaintiff's request in part, because it 

did not maintain the information in the format requested. Id. 

Plaintiff appealed this decision. On September 23, 2014, the DOT 

denied plaintiff's appeal, stating in relevant part: 

2 

You are seeking to have the Agency take a smaller amount 

of two-dimensional data from a larger data source and,_ 

through another software program, manipulate or process 

OPINION AND ORDER 

Case 6:14-cv-01774-AA Document 24 Filed 05/05/15 Page 2 of 6
that data in order to create a particular arrangement of 

that data, giving it new characteristics as a threedimensional model ... As fulfilling your request would 

constitute creating a new record, the Agency properly 

determined that there were no records responsive to your 

request. Pl.'s Comp. at 4. 

On September 29, 2014, plaintiff submitted another FOIA 

request clarifying · his original request and adding in some 

additional XSR files, which were not part of his original request. 

Pl.'s Comp. at 6. On October 14, 2014, plaintiff received a letter 

that concluded he was attempting to seek the same information as he 

did in his initial FOIA request; therefore, his request was subject 

to the original appeal determination. On October 16, 2014, 

plaintiff filed an appeal. On October 21, 2014, plaintiff received 

an email reply stating that since his "latest request for 

information is a duplicate of [his] initial request and [his] 

initial request was denied in full on September 23, 2014 ... there is 

no further right to appeal." Pl.'s Comp. at 6. 

On November 7, 2014, plaintiff filed a complaint in this 

action. Since then, plaintiff has submitted discovery requests 

related to his original FOIA request. On March 2, 2015, defendant 

filed this motion requesting a protective order to prohibit 

discovery, because FOIA cases are generally resolved on summary 

judgment and without discovery. 

II. DISCUSSION 

Defendant argues that plaintiff's discovery requests should be 

3 OPINION AND ORDER 

Case 6:14-cv-01774-AA Document 24 Filed 05/05/15 Page 3 of 6
denied and a protective order by this court granted because 

defendant has not moved for summary judgment and discovery is 

rarely allowed in FOIA cases. Plaintiff argues that his discovery 

requests do not request any information that was denied by 

defendant in response to his FOIA request; rather, plaintiff seeks 

to verify that defendant's original design files are readily 

reproducible in the format requested by him and to confirm the 

identity of the custodian of record. Pl.'s Ans. at 7. Plaintiff 

further argues that the party resisting discovery bears the burden 

of establishing lack of relevance or undue burden. Pl.'s Br. at 8. 

Defendant maintains that it is black letter law that discovery is 

rarely allowed in FOIA cases. Df.'s Rep. Br. at 2. I agree. 

Any party, from whom discovery is sought, may seek a 

protective order from the court. Fed. R. Civ. P. 26(c) (1). A court 

may issue a protective order in order to protect a party from 

"annoyance, embarrassment, oppression, or undue burden or expense." 

Id. A court may grant a protective order to limit or forbid 

discovery, or to specify the terms for discovery. Fed. R. Civ. P. 

26 (c) (1) (A-B). FOIA cases are usually decided on summary judgment; 

if discovery is allowed it is limited, because "the case revolves 

around the propriety of revealing of certain documents." Lane v. 

Dep't of Interior, 523 F.3d 1128, 1134 (9th Cir. 2008). 

Thus, defendant is correct that "discovery is rarely allowed 

in FOIA cases." Def.'s Br. at 2. Lane v. Dep't of Interior, 523 

4 OPINION AND ORDER 

Case 6:14-cv-01774-AA Document 24 Filed 05/05/15 Page 4 of 6
F.3d 1128, 1134 (9th Cir. 2008) (ruling that discovery is typically 

not a part of FOIA); Lawyers' Comm. for Civil Rights of S.F. Bay 

Area v. U.S. Dep't of Treasury, 534 F. Supp. 2d 1126, 1131 (N.D. 

Cal. 2 008) ("Procedurally, district courts typically decide FOIA 

cases on summary judgment before a plaintiff can conduct 

discovery."); Smith v. FAA, 2015 WL 456467 at *6 (D. Or. Feb. 2, 

2015) ("FOIA cases are generally decided via summary judgment and 

discovery is not typically part of FOIA cases." Yagman v. U.S. 

Dep't of Justice, 2014 WL 1245305 at *5 (C.D. Cal. March, 22, 

2 014) ("Discovery is the exception, not the rule in FOIA cases.") . 

Furthermore, discovery is only appropriate in FOIA cases when 

an agency has not taken adequate steps to find responsive 

documents. Therefore, discovery is usually not allowed "if the 

government's declarations were made in good faith and provide 

specific detail about the methods used to produce the information." 

Lawyers' Comm. for Civil Rights of S.F. Bay Area v. U.S. Dep't of 

Treasury, 534 F. Supp. 2d 1126, 1131 (N.D. Cal. 2008). Rather, to 

obtain discovery, the plaintif£ must make a sufficient showing of 

bad faith by the agency after the agency has moved for summary 

judgment. Id. 

Here, defendant has not moved for summary judgment, and 

plaintiff has not shown discovery is appropriate at this stage in 

the litigation. 

5 OPINION AND ORDER 

Case 6:14-cv-01774-AA Document 24 Filed 05/05/15 Page 5 of 6
CONCLUSION 

Therefore, defendant's motion for a protective order (doc. 14) 

is GRANTED and plaintiff's motion to compel discovery (doc. 15) is 

DENIED. 

IT IS SO ORDERED. 

Dated this ~ay of ~015. 

Ann Aiken 

United States District Judge 

6 OPINION AND ORDER 

Case 6:14-cv-01774-AA Document 24 Filed 05/05/15 Page 6 of 6