- This article is part of a series on Litigation
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.
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."
Recent district court cases regarding discovery
- CareToLive v. FDA, 631 F.3d 336, 345-46 (6th Cir. 2011)
- World Publ'g Co. v. DOJ, 672 F.3d 825, 832 (10th Cir. 2012); White v. City of San Diego, 605 F.2d 455, 461 (9th Cir. 1979); Wood v. FBI, 432 F.3d 78, 84-85 (2d Cir. 2005)
- Families for Freedom v. U.S. Customs & Border Protect., 837 F. Supp. 2d 331, 336-37 (S.D.N.Y. 2011)
- Electronic Frontier Foundation v. DOJ, 826 F. Supp. 2d 157, 174-75 (D.D.C. 2011); Martinez v. SSA, No. 07-01156, 2007 WL 4458121, at *3 (D. Colo. Dec. 13, 2007)
- Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994); Citizens for Resp. & Ethics in Wash. v. VA, 828 F. Supp. 2d 325, 334 (D.D.C. 2011); Alley v. HHS, No. 07-0096, 2008 U.S. Dist. LEXIS 106884, at *19-20 (N.D. Ala. May 8, 2008)
- Schoenman v. FBI, 763 F. Supp. 2d 173, 204 (D.D.C. 2011); Gold Anti- Trust Action Comm., Inc. v. Bd. of Governors of the Fed. Res. Sys., 762 F. Supp. 2d 123, 131- 34 n.4 (D.D.C. 2011); People for the Am. Way Found. v. Nat'l Park Serv., 503 F. Supp. 284, 308 (D.D.C. 2007)
- Trentadue v. FBI, 572 F.3d 794, 806-08 (10th Cir. 2009); Sharkey v. FDA, 250 F. App'x 284, 291 (11th Cir. 2007)
- Ajluni v. FBI, 947 F. Supp. 599, 608 (N.D.N.Y. 1996)
- Lane, 523 F.3d at 1135 (9th Cir. 2008); Tax Analysts v. IRS, 410 F.3d 715, 722 (D.C. Cir. 2005)
- Shannahan v. IRS, 672 F.3d 1142, 1151 (9th Cir. 2012); Flowers v. IRS, 307 F. Supp. 2d 60, 72 (D.D.C. 2004)
- Changzhou Laosan Group v. U.S. Customs & Border Prot. Bureau, No. 04-1919, 2005 WL 913268, at *7 (D.D.C. Apr. 20, 2005)
- Nat'l Whistleblower Ctr. v. HHS, 903 F. Supp. 2d 59, 71 (D.D.C. Nov. 9, 2012)