Discovery


 * This article is part of a series on Litigation

Introduction
Discovery refers to a series of tools used in litigation to gather information in advance of a trial or summary judgement. For general information on this process, see Discovery

Discovery in FOIA cases is not impossible to obtain, but is difficult, and an order for discovery is generally considered to be the exception rather than the rule. The decision to grant discovery and the conditions under which it is permitted are within the discretion of the district court.

Courts may permit discovery but limit its scope.

When Is An Order for Discovery Most Likely to be Granted?
There is no prescriptive list of circumstances in which discovery will be permitted. However, an order for discovery is perhaps most likely to be granted where:


 * The agency has not met its burden with respect to demonstrating the adequacy of its searches


 * The agency has not met its burden with respect to demonstrating its compliance with the segregability obligation


 * The plaintiff raises a sufficient question as to the agency's good faith in processing documents

When Is An Order for Discovery Unlikely to be Granted?

 * Where an agency's declarations are reasonably detailed and submitted in good faith


 * Where the FOIA plaintiff fails to demonstrate that the discovery requested will uncover information that would create a genuine issue of material fact


 * Where the FOIA plaintiff is attempting to probe the agency's "thought processes" for claiming particular exemptions
 * Where the FOIA plaintiff seeks to utilize discovery as a way to uncover the contents of the withheld documents


 * Where the FOIA plaintiff attempts to use a FOIA lawsuit as a means of questioning investigatory action taken by the agency or the underlying reasons for undertaking such investigations
 * Where the FOIA plaintiff appears to be using discovery "as a fishing expedition [for] investigating matters related to separate lawsuits."


 * Where in-camera inspection has been undertaken. See In Camera Inspection