United States District Court, D. Arizona
BRIDGET S. BADE, Magistrate Judge.
Plaintiff has filed a Motion for Leave to Take Discovery and Interrogatories, and Make Requests for Admissions, and Submit Subpoenas Prior to Responding to Defendants' Cross Motion for Summary Judgment (motion for discovery). (Doc. 101.) Defendants have filed a response opposing this motion, and Plaintiff has replied. (Docs. 106, 107.) For the reasons below, the Court denies Plaintiff's motion for discovery.
I. Procedural Background
In July 2012, Plaintiff filed the complaint in this matter, asserting claims under the Freedom of Information Act (FOIA) related to three separate FOIA requests he made in 2011 related to "stingray" technology. These FOIA requests were directed to the Federal Bureau of Investigation (FBI) and the Executive Office for United States Attorneys (EOUSA). (Doc. 1.) The case was assigned to an expedited track and the Court entered a scheduling order that set a deadline for filing dispositive motions. (Doc. 35.)
On July 23, 2013, Plaintiff filed a thirty-six page motion for partial summary judgment (Doc. 36), with a sixty-six page supporting statement of facts and his first and second declarations. (Docs. 36, 37, 38, and 39.) The Court struck Plaintiff's motion for failure to comply with Local Rule 7.2(e)(1), but granted Plaintiff leave to refile his motion. (Doc. 41.) The Court also amended the scheduling order to extend the dispositive motions deadline by sixty days. ( Id. ) The Court did not strike Plaintiff's supporting statement of facts (Doc. 37), or his first and second declarations. (Docs. 38, 39, and 46.)
On September 4, 2013, Plaintiff filed another motion for partial summary judgment (Doc. 42), his third declaration (Doc. 43), and his first supplemental statement of facts. (Doc. 44.) On November 7, 2013, Plaintiff filed his fourth, fifth, and sixth declarations (Docs. 58, 59, and 60), and his second supplemental statement of facts. (Doc. 57.) He also filed a "notice of support" for his supplemental filings. (Doc. 61.) On November 12, 2013, the Court struck Plaintiff's first and second supplemental statements of fact, and his third, fourth, fifth and sixth declarations. (Doc. 63.) The Court stayed the briefing schedule and provided Plaintiff the opportunity to proceed with his pending motion for partial summary judgment, or to withdraw that motion and file one motion to address all of the issues raised in his multiple filings. ( Id. ) In response, Plaintiff filed a motion to withdraw his pending motion for partial summary judgment (Doc. 68), and the Court granted that motion. (Doc. 69.) The Court also amended the scheduling order to extend the deadline for filing dispositive motions (Doc. 70), and then further amended the scheduling order to allow the parties to file staggered dispositive motions. (Doc. 76.)
On February 4, 2014, Plaintiff filed a motion for partial summary judgment (Doc. 84), supporting statement of facts (Doc. 85), and a first and second declaration. (Docs. 87 and 87.) On March 14, 2014, Defendants filed a cross motion for summary judgment and a response to Plaintiff's motion for partial summary judgment. (Docs. 91 and 92.) On April 2, 2014, Defendants filed a motion for leave to file a supplemental memorandum and declaration, or to withdraw a portion of their argument in their cross motion for summary judgment. (Doc. 97.) The Court granted that motion. (Doc. 103.) The Court also granted Plaintiff's motion for an extension of time to file his response to Defendants' cross motion for summary judgment and his reply in support of his motion for partial summary judgment, and extended that deadline from April 17, 2014 to May 19, 2014. (Docs. 94, 95.) Plaintiff filed the pending motion for discovery on April 3, 2014 (Doc. 101), and it was fully briefed when Plaintiff filed his reply on May 5, 2014. (Doc. 107.)
II. Plaintiff's Motion for Discovery
In the pending motion for discovery and supporting declaration, Plaintiff argues that he needs to take discovery to properly respond to Defendants' cross-motion for summary judgment and he seeks leave to do so pursuant to Fed.R.Civ.P. 56(d). (Docs. 101 and 102.) As set forth below, Plaintiff seeks discovery for the following two reasons: (1) to authenticate documents submitted with his motion for partial summary judgment (Doc. 102 at ¶¶ 4-12); and (2) to discover information about the manner in which Defendants produced documents in response to his FOIA requests. ( Id. at ¶¶ 13-16.)
First, Plaintiff explains that he needs discovery to authenticate documents that he submitted with his motion for partial summary judgment. (Doc. 102 at ¶ 1.) Plaintiff states that "placing these documents into evidence is vital" to the arguments he intends to assert in response to Defendants' cross motion for summary judgment. ( Id. at ¶ 3.) Specifically, Plaintiff asserts these documents support his response to Defendants' argument that certain privileges apply to the documents sought in Plaintiff's FOIA requests. ( Id. ) Therefore, Plaintiff seeks discovery to authenticate documents submitted with his statement of facts in support of his motion for partial summary judgment. (Doc. 102 at ¶¶ 7-12.)
Second, Plaintiff seeks discovery to obtain information about Defendants' document processing software and systems, and their capabilities regarding the format of documents produced in response to FOIA requests. (Doc. 102 at ¶¶ 13-16.) He asserts that he needs this discovery to counter Defendants' arguments about their document production capabilities, specifically whether they can produce documents in native format with metadata intact. ( Id. at ¶ 13.)
III. Federal Rule of Civil 56(d)
Rule 56(d) of the Federal Rules of Civil Procedure permits a party to resist a summary judgment motion by "show[ing] by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition" to the motion. A party may invoke Rule 56(d) to ask the court to deny the summary judgment motion outright or delay consideration while the party completes necessary discovery.
A party relying on Rule 56(d) must offer specific reasons that it needs additional discovery to oppose a summary judgment motion. The affidavit must set out "the specific facts it hopes to elicit from further discovery" and show that "the sought-after facts are essential to oppose summary judgment." Family Home & Fin. Ctr., Inc. v. Fed Home Loan Mtg. Corp., 525 F.3d 822, 827 (9th Cir. 2008); see State of Cal., on Behalf of Cal. Dept. of Toxic Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998) (explaining that for a continuance under Rule 56(f), predecessor to 56(d), parties must show "(1) that they have set forth in affidavit form the specific facts ...