STUART M. GERSON Assistant Attorney General JOHN A. MENDEZ United States Attorney STEPHEN L. SCHIRLE Chief, Civil Division MARY BETH UITTI Assistant United States Attorney (415) 556-6181 ELIZABETH A. PUGH JOHN S. MARTIN Attorneys, Department of Justice Civil Division Room 1024 901 E Street N.W. Washington, D.C. 20530 (202)616-0179 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA John C. Gilmore, ) Plaintiff ) Civil Action No. C-92-3646 ) TEH vs . ) ) National Security ) Date: December 14, 1992 Agency, ) Time: 10.00 a. m. Defendant. ) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR PROTECTIVE ORDER STAYING DISCOVERY PRELIMINARY STATEMENT In this suit under the Freedom of Information Act ("FOIA"),5 U. S. C. 552, plaintiff John Gilmore seeks the release of two treatises on cryptanalysis (codebreaking) which are in the possession of defendant National Security Agency ("NSA") but have been withheld pursuant to Exemptions 1 and 3 of the FOIA, 5 U.S.C. ¤¤ 552(b)(1) and (3). Plaintiff also alleges that NSA has failed to make a timely response to his request, and that its FOIA response policies routinely result in the untimely and otherwise unlawful processing of FOIA requests. Plaintiff has served on NSA interrogatories, requests for admissions, and requests for production of documents concerning both the withheld treatises and NSA's FOIA response policies. (Copies attached). This discovery should be stayed pending disposition of NSA's motion for summary judgment, submitted concurrently herewith. Because NSA's motion for summary judgment and supporting papers show that there is no issue of material fact, to conduct such discovery now would waste the time of both the parties and the court. Moreover, the law is clear that discovery may not be had in a FOIA suit before the government has submitted its dispositive motion and supporting declarations; discovery becomes permissible in a FOIA suit only if the government's declarations raise material factual issues. Therefore, the discovery plaintiff seeks should not be had, and all further discovery should be stayed pending a ruling on NSA's motion for summary judgment. ARGUMENT I. DISCOVERY SHOULD BE STAYED UNTIL THE COURT RULES ON NSA'S SUMMARY JUDGMENT MOTION It is well established that the discovery rules rest in this Court broad discretion to control not only the scope of, but also the procedures for discoverv in this suit. Fed. R. Civ. P. [1 All material facts sought in plaintiff's discovery request have been addressed in NSA's accompanying summary judgment materials.] 26(c); Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988); Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175, 1181 (9th Cir. 1988). Federal Rule of Civil Procedure 26(c) provides that upon a showing of good cause, the Court "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense," including an order that discovery not proceed. The U.S. Supreme Court has emphasized that courts should not hesitate to exercise their power to restrict unnecessary discovery: [T]he discovery provisions, like all of the Federal Rules of Civil Procedure, are subject to the injunction of Rule 1 that they "be construed to secure the just, speedy, and inexpensive determination of every action." (Emphasis added). To this end, the requirement of Rule 26(b)(1) that the material sought in discovery be "relevant" should be firmly applied, and the district courts should not neglect their power to restrict discovery where "justice requires [protection for] a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . ." Rule 26(c). With this authority at hand, judges should not hesitate to exercise appropriate control over the discovery process. Herbert v. Lando, 441 U.S. 153, 177 (1979) (emphasis in Court's opinion). Accordingly, where appropriate, courts may issue protective orders under Rule 26(c) to deny, limit or delay discovery to protect an individual from undue burden or expense, or to promote justice. See Chen Chi Wan v. United States, 757 F.2d 1000, 1004 (9th Cir. 1985) (district court has discretion to deny or restrict discovery); United Presbyterian Church v. Reagan, 738 F.2d 1375, 1382 (D.C. Cir. 1984) (same). Thus, until it is determined that a plaintiff's claims are properly before the court, "a defendant should not be put to the trouble and expense of any further proceedings." United Transp. Serv. Employees v. National Mediation Bd., 179 F.2d 446, 454 (D.C. Cir. 1949). That is particularly true when there is a dispositive motion pending that could resolve the issues raised, thus obviating the need for discovery. See, e.q., Chagnon v. Bell, 642 F.2d 1248, 1265-66 tD.C. Cir. 1980), cert. denied, 453 U.S. 911 (1981). Discovery is not needed in this case because NSA has served, concurrently with this motion, a motion for summary judgment. Attached to that motion is the declaration of Michael A. Smith, NSA's Director of Policy, which shows that the records requested by plaintiff were properly withheld and that NSA's procedures for responding to FOIA requests are lawful. Because the Court will be able to decide defendants' dispositive motion with reference to that declaration, this Court should exercise its sound discretion to protect NSA from plaintiff's discovery requests pending a decision on NSA's motion for summary judgment. See Coastal States Gas v. Department of Eneroy, 84 F.R.D. 278, 282 (D. Del. 1979) (staying discovery pending resolution of dispositive motion is "eminently logical means to prevent wasting the time and effort of all concerned, and to make the most efficient use of judicial resources"). Not only is a stay of discovery proper in order to promote the efficient use of resources, it is particularly appropriate because FOIA case. FOIA cases are categorically different from other civil matters subject to the discovery provisions of the Federal Rules of Civil Procedure -- discovery is not essential for the plaintiff because the defendant bears the burden of proving that its claims of exemption are supported. See 5 U.S.C. ¤ 552(b); Lewis v. I.R.S., 823 F.2d 375, 378 (9th Cir. 1987); Spannaus v. Department of Justice, 813 F.2d 1285, 1288 (4th Cir. 1987). Therefore, it is well established that "'discovery is only proper in a [FOIA] case after the defendant has had an opportunity to submit its justification for withholding documents responsive to a FOIA request by means of a dispositive motion.'" Bay Area Lawyers Alliance for Nuclear Arms Control v. Department of State, 1992 U.S. Dist. LEXIS 12491 (N.D. Ca. 1992) (Henderson, J.). This is because no factual issue warranting discovery can arise until the government submits its dispositive motion and supporting affidavits. Murphy v. FBI, 490 F. Supp. 1134, 1136-37 (D.D.C. 1980); see also Diamond v. FBI, 487 F. Supp. 774, 77778 (S.D.N.Y. 1979) (discovery stayed until defendant filed affidavits in support of a summary judgment motion); Friedman v. FBI, 605 F. Supp. 306, 316 (N.D. Ga. 1984) (supplemental order) (denying plaintiffs' Fed. R. Civ. P. 56(f) motion for a continuance pending discovery and granting defendant's motion for a protective order). As the Ninth Circuit has recognized, to meet its burden of establishing that any withheld documents are exempt from disclosure, the government may rely upon affidavits submitted by its officials, and "[i]f the affidavits contain reasonably detailed descriptions of the documents and allege facts sufficient to establish an exemption, the district court need look no further.2 Lewis, 823 F.2d at 378 (citations omitted). Even where the government's affidavits prove inadequate, the court should first afford the government the opportunity to remedy any inadequacies by the submission of further affidavits. See e.g., Founding Church of Scientology v. United States Marshals Service, 516 F. Supp. 151, 156 (D.D.C. 1980) (motion for protective order granted and defendants ordered to submit further affidavits regarding the adequacy of a search). Only if these measures are unsuccessful should the court consider "the appropriateness of limited discovery such as has been ordered by some courts." Porter v. Department of Justice, 717 F.2d 787, 793 (D.C. Cir. 1983) (citing, inter alia, Murphy, supra). In summary, this case is not ripe for discovery, which will be appropriate, if at all, only if the court denies NSA's motion for summary judgment.3 [2 This is particularly clear where, as is the case for the records at issue here, the government invokes Exemption l's protection of classified national security documents, since "courts have long been required to accord substantial weight to an agency's affidavit concerning national security matters." Inqle v. Department of Justice, 698 F.2d 259, 268 (6th Cir. 1983), citing Taylor v. Department of Army, 684 F.2d 99, 106-07 (D.C. Cir. 1982). In analyzing such FOIA cases, courts "'must recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosures of a particular classified record."' Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981), quoting S. Rep. No. 93-1200, 93d Cong., 2d Sess. 12 (1974), rePrinted in 1974 U.S. Code Cong. & Admin. News 6267, 6290.] [3 In the event that discovery should become appropriate at some point in the future, NSA reserves the right to assert at that time any further objections it may have to specific aspects of plaintiff's requested discovery, including, but not limited to, the relevance and burdensomeness of particular items. In addition, in the event this motion is denied, NSA respectfully requests the Court to grant it 30 days from the date of such denial to respond to plaintiff's discovery.] CONCLUSION For the foregoing reasons, defendant requests that its Motion for a Protective Order staying all discovery pending disposition of its motion for summary judgment be granted. Respectfully submitted, STUART M. GERSON Assistant Attorney General JOHN A. MENDEZ United States Attorney STEPHEN L. SCHIRLE Chief, Civil Division MARY BETH UITTI Assistant United States Attorney (signed) ELIZABETH A. PUGH (signed) JOHN S. MARTIN Attorneys, Department of Justice Civil Division Room 1024 901 E Street N.W. Washington, D.C. 20530 (202)616-0179 Of Counsel: Alison Jameson National Security Agency Fort Meade, Maryland 20755