IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. UNITED STATES DEPARTMENT OF AGRICULTURE, a Federal agency,

Transcription

1 0 0 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. -cv-0-wyd-kmt ROCKY MOUNTAIN WILD, INC., a Colorado non-profit corporation, Plaintiff, vs. UNITED STATES FOREST SERVICE, a Federal agency, UNITED STATES DEPARTMENT OF AGRICULTURE, a Federal agency, Defendants. Proceedings before KATHLEEN M. TAFOYA, United States Magistrate Judge, United States District Court for the District of Colorado, commencing at : a.m., December 0, 0, in the United States Courthouse, Denver, Colorado. WHEREUPON, THE ELECTRONICALLY RECORDED PROCEEDINGS ARE HEREIN TYPOGRAPHICALLY TRANSCRIBED... APPEARANCES MR. TRAVIS E. STILLS, ESQ., MR. MATTHEW D. SANDLER, ESQ. Appearing on behalf of the Plaintiff. MR. ZEYEN J. WU, ESQ. Appearing on behalf of the Government. SCHEDULING CONFERENCE SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

2 0 0 P R O C E E D I N G S (Whereupon, within the electronically recorded proceedings are herein transcribed, pursuant to order of counsel. Due to incomplete speaker identification in the FTR log notes, speaker identification in this transcript in some cases may be inaccurate.) THE COURT: Okay. Let's call Case No. -CV-, Rocky Mountain Wild, Inc., plaintiff, versus United States Forest Service and United States Department of Agriculture. May I have appearances, please. MR. STILLS: Good morning, Your Honor. Travis Stills, Energy and Conservation Law, for plaintiffs Rocky Mountain Wild. THE COURT: Okay. MR. SANDLER: I'm Matt Sandler, staff attorney for Rocky Mountain Wild. THE COURT: All right. Good morning to both of you. MR. STILLS: Good morning. MR. SANDLER: Good morning. THE COURT: And for defendant? MR. WU: Good morning, Your Honor. Zeyen Wu, US Attorney's Office, on behalf of the defendants. THE COURT: Good morning to you. One of the reasons I was giving you a chance to SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

3 0 0 get comfortable here, and reading my notes; I have a lot of notes on the front page of this scheduling order, but they all have kind of boiled down to one thing, looking at the way to get the case moving and going forward. On page of the document -- so, this is kind of skipping way ahead -- defendants lay out their plan for an expedited briefing schedule where you would -- plaintiffs would get the declarations, a Vaughn index and a dispositive motion would be filed by February th, 0. That seems like the fastest that you could possibly get under any circumstances, so I don't quite understand why you don't like that. So, my first question for you is why not just adopt that and you get the Vaughn -- they're already telling you they'll give you the Vaughn index and they'll give you everything you need. And then after you get that you could file for more discovery if you feel like you need it, right? Because it will be under Rule. MR. STILLS: There's two -- two things with that question, Your Honor. The first is a practical matter and the second is procedural as far as how the scheduling order would go in. As we laid out in the scheduling order, the request was made in February of 0 to allow Rocky Mountain Wild and others to participate and work with the Federal Government and the Forest Service concerning federal land SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

4 0 0 management. These documents concern a decision that was issued in late November, just before the holidays, that requires a -day objections period that runs January th. So there's kind of a goose-gander problem here where the Forest Service is not complying with statutory deadlines, mandatory deadlines. And now we're into discovery and we're getting a slow roll as far as inspections of various offices and release of documents to where we needed to come to court to get that enforced. So, we have that practical problem where the government is making assertions that it's busy and can't get to it, yet we're in a -day comment period as we laid out here to where the public has to get to it. So, that's our practical problem of wanting this accelerated. The procedural problem is as far as it being sequenced, you know, we don't have a -- um, an absolute objection to the government filing its summary judgment along with a declarations and the Vaughn index because we're into the de novo portion of the case that requires them to carry their burden. What we don't want to have come into the scheduling order is the argument that the government has made, which is that under no circumstances do a FOIA plaintiff get discovery. And I don't think that's correct. So, what we're looking for is to go ahead and build in that discovery period. We've made a, I think, an SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

5 0 0 initial showing that this matter involves quite a bit of bad faith that's been addressed by this court. And even if -- even under the standard laid out under Anderson it's just bad faith is a second set of questions on whether or not a plaintiff gets discovery based on whether the affidavits are sufficient, and actually address all of the elements and carry the burden. So, with the facts of this case, with its history, we were looking to get something built in. Our preference was release of Vaughn and A to Z declarations to allow that de novo review, and then a period where we could do whatever discovery, or not do any discovery, based on what we see in those declarations. Perhaps settlement, so we don't force the government into a summary judgment motion. We think -- And we've asked for these before and they've not been provided. We think that is a practical way to go forward. And as we laid out under the Anderson case in the Tenth Circuit, this court has a great deal of discretion on how these matters are scheduled based on the facts and circumstances. So, between the practical matter of -- we're -- my clients are being held to a very rigid standard, and the Forest Service is asking for time because of other things, we don't think that is particularly fair under these circumstances. And two, we're looking at a way to set the SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

6 0 0 schedule to where we don't have to come and file a motion to stay proceedings, show cause, give us an opportunity. We'd like to see that built in today if we can get that done. THE COURT: Okay. What's wrong with moving the Vaughn index and the declarations up? MR. WU: Well, the problem, Your Honor, is that it's primarily logistical, actually. And as you pointed out, this is a very aggressive timeline. I mean, we're at December 0th and we're talking about less than two months for a full dispositive motion. THE COURT: Right. But I didn't know about the -day comment period. I mean, that kind of puts a crimp in things when the government -- MR. WU: So -- THE COURT: -- decides that's going on, you know. MR. WU: Yeah. So as to that, there's a few issues. First of all, I believe it was April th was the final FOIA decision. And documents were released; a response was provided; appeal rights were given in that letter. So, that constituted the final FOIA determination. After the lawsuit was filed we reassessed everything and provided a final response, or sort of a -- basically, a response to the appeal that was filed on December st, and, again, re-releasing documents. But I'll emphasize that I reviewed all those documents personally and SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

7 0 0 to me they're essentially the same set of documents that were released on April th with, I think, additional pages out of thousands at issue that weren't disclosed on April th. And, um, the agency's position is that all responsive documents, subject to the appropriate exemptions and subject to FOIA, have been released. And so, the issue really comes down to a legal one. And I don't think plaintiffs would assert that Judge Daniel is going to make a legal decision within days on the sufficiency of the documents. In addition, on the December st release, we provided a four and a half page, single spaced letter detailing the exemptions, and actually specifically with document PDF names tying the exemptions to the specific documents. And then within the redactions themselves there was also a label on them saying, you know, B- deliver of process, or whatever the exemption happened to be. So, from our perspective that's enough to substantiate the exemptions and to settle the case. And, um, from a practical perspective, again, I'm going to trial on Monday for a week, and then that's the week of Christmas afterwards. I conferred with the agency folks I'm working with this morning -- four or five of them -- at least two or three will be gone for at least parts of that week. And then President Obama, as you know, has given us SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

8 0 0 the Friday after, so that's a three-day week to begin with. The week after that, the week of December th, I'm on vacation, previously scheduled. And so, essentially, it's only a month that I'm -- I'm proposing to put out this Vaughn index and the summary judgment briefing. So, I think that's pretty reasonable. And on expedited timing, their proposal, first of all, doesn't provide for dispositive motions until April. So that doesn't really comport with their goals. Secondly, on timeliness, this case was filed on September th. And, you know, plaintiff has made no indication that they wanted, you know, a scheduling conference or any orders sooner than this December 0th scheduling conference, which I -- I know was scheduled, you know, somewhat far out, but, you know, we didn't request that scheduling and I would have been fine with doing a scheduling conference earlier, but that was never raised previous. So, in terms of -- you know, now they want to expedite -- THE COURT: But we have an intervening final order, right? MR. WU: That's true. THE COURT: That starts a time clock. MR. WU: Sure. The thing about that, as I mentioned, is just if there's legal issues at stake, what they're asking for is a determination. And, like I said, I SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

9 0 0 don't think anybody thinks that Judge Daniel is going to make a determination. And a determination -- a legal determination would require briefing anyways. You know, so -- you know, I don't think any of that is going to happen. And on bad faith, if you look at plaintiff's section on -- on their position in the scheduling order, essentially, what I believe their argument amounts to is that six to eight years ago there were some problems and mistakes made in this section. And I've spoken to the folks at the agency about that, and they will readily admit that there were mistakes made in the past, but the leadership now is different; the folks working on this FOIA matter, six-eight years later are different than the folks then. And I don't think that there should be a presumption of bad faith as to this matter just because there were mistakes made, you know, six to eight years ago. THE COURT: Well, let me ask plaintiff this then. And, um, forgive me for being a bit dumb on this stuff. I don't really -- I never did practice environmental law. I had to look up what a Vaughn index actually was. But now that I kind of know, at least by definition, what the Vaughn index is it strikes me that it's very similar to a privilege log in a regular civil case where you log the documents out that are not going -- that are not provided. So, the government tells you, by some way of description, these are SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

10 0 0 0 the things we are not giving you under this exemption or that exemption. So, that's kind of like a privilege log. And if you get that -- let's say I said I don't care about your vacation, and I don't care about your trial, and I'm going to give it to you in two weeks. If you get that index, that doesn't really do much for you, I don't -- I mean, it does in terms of the case, but it's not -- I agree with the defendant that you're not going to get any kind of ruling or anything that you get those documents just because you get that index. You're still not going to have that within your days. So, I'm not sure that we should be bound in this case by the -day comment period because you're not going to have those documents, no matter what, within the days. MR. STILLS: I apologize for not standing before, Your Honor. THE COURT: It's all right. MR. STILLS: A couple of things that go to that days, and having the documents or having the agency's Vaughn compliant description, which the -- the letter that was sent, no one here claims that it was Vaughn compliant. It didn't have a lot of the components. A lot of what we're dealing with in the previous cases that were listed here on this same project involving -- and I do beg to differ -- many of the same agency employees, including some of the same exact people who were involved in SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

11 0 0 the previous cases, disclosing internal -- otherwise privileged -- agency documents to the project proponent, thereby eliminating any privilege for purposes of this case, which is one of the factors. And you're right. The analogy of a privilege log is right. We would get information on -- not only would we, I think counsel in the United States Attorney's Office, and counsel above -- Mr. Ken Capps would be the person within the office of general counsel of the Forest Service who has been very much involved with that disclosure of otherwise internal documents to outside third parties. We would have information on that to show, in the objections, a major portion that has been running through this matter with preliminary injunctions talking about the Forest Service's inability to maintain sort of a public interest focus, because they are getting a barrage of input from persons outside of the privileged group. That is being facilitated by federal counsel. We have documents that were just released in redacted form for the first time on December st that do show Mr. Capps communicating these documents to Washington, D.C. We have documents that -- we have no other documents from Washington, D.C. Forest Service even though they have been very much involved. So, we're gaining information but it's at a very slow drip trickle from -- from this case, from the SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

12 0 0 FOIA case. I think the documents we would much prefer to get them within the objections period. It would still be useful after the objections period, but it will eliminate our use of them in there. But I do think -- THE COURT: But you're not going to get documents, right? You would just get -- MR. STILLS: What's that? THE COURT: You would just get declarations and a Vaughn index? MR. STILLS: I believe if the government is acting in good faith, if they see when we move this up the level to the point where you have US attorneys signing off, people actually signing their name on the bottom of an affidavit instead of sending a letter saying, "I think that's it," I think if we get those signatures on Vaughn indexes and search declarations, the two main components of a -- that allows a court and the plaintiffs to review the defendants' position, I think documents will come with that process. So, there's a process. It's not all just hanging on a decision. I've seen it happen in other cases. Cases in -- well, this case, in an effort to try to avoid further litigation they trickled a little bit out, and -- and I don't want to be quite so condescending. They found stuff and they released it. THE COURT: Right. After reviewing it. SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

13 0 0 MR. STILLS: There's two ways of -- there's two ways of looking at it. THE COURT: Okay. MR. STILLS: I'll give both the generous and the not so generous. But I think if they were pressed with a deadline for the agency personnel to provide to counsel those Vaughn index -- that Vaughn index -- or maybe there's multiple because we've got multiple units of the Forest Service involved here; Washington office, regional office, and local offices -- and declarations concerning where they searched and what they found, or how they searched, I think that will actually have a very practical affect of pushing, if not all, a good number of documents and useful information so that we can participate -- my clients can participate in the administrative procedure (unintelligible). THE COURT: Okay. I hear what you're saying, because -- and I agree with you. When people have to -- I used to call it going to school on a case. You know, when you really have to start, for instance, marshaling evidence for trial, or something like that, and really thinking about those things it does change your mind. Because instead of giving it a cursory review you've given it a more in-depth review. You've got to put this on an index and justify, according to the rules, how -- why it's on the index. But, you've -- it seems to me that you've had that SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

14 0 0 review now twice. Um, the first time maybe -- maybe more cursory. I don't want to imply that a good job wasn't done in April when the first documents were released, I think that's April th. I'm sure it was done in -- well, I hope it was done in good faith. But then you got another more in-depth review which resulted in the December st findings that gave you additional pages out of what the defendant characterized as thousands. Is that -- is thousands accurate? MR. STILLS: I can't speak to how many additional documents. Um, there's been a trickle, so it's hard to compare them against -- THE COURT: But is thousands appropriate as far as what's been produced? MR. STILLS: Thousands of pages, yeah. THE COURT: Okay. So -- and they've justified it with the next step, right, which is a big long letter detailing every reason why they didn't produce it. So, I'm not saying you're wrong about the levels of review and the fact that they may change their mind, I'm just saying that they're not asking for very much time, and it -- I don't think you're going to get very much because we're here in the holidays. And if you were asking for the same consideration I would give it to you. I would give it to myself. I'm not going to be here during Christmas week. You know, I mean, SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

15 0 0 people just take time off during this time of year, so I really think that -- I wouldn't even consider ordering them to do something like that in a week. And what you're saying is they should have done it before, but -- MR. STILLS: And if I may, Your Honor. Um -- well, first, we respectfully don't agree with the characterization that these were robust or -- or full privilege logs. They were after-the-fact narrative letter that didn't cover all of the elements. But aside from our position in the case, if we took the government's position as true that everything is there, shouldn't that just be a formatting exercise? If, indeed, it was all there, as it's been represented, we're talking about a couple of hours. There shouldn't be much burden here if in fact it's all there. We're hearing two different positions from the government: A) This is going to take us a long time to do; and B) we've already got it. I tend to think the first is correct. But their position is they've already done it. If they've already done it we're talking about hours. This is an administrative case. Like a privilege log, these decisions should have been -- there should be documentation contemporaneous that goes beyond just what's in a letter to back this up. So -- so, I'm seeing two very different ways of seeing the government's argument here: A) Hey, it's all there. There's no big deal; SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

16 0 0 and B) Oh, my gosh, this is going to take us an incredible amount of time to figure out. So that's where we're sitting. And, again, this January th date looms large. The January -- THE COURT: Is it the th? MR. STILLS: -- response to the November -- THE COURT: Because it's not really December st -- MR. STILLS: Is it the th or the th? I'm sorry, I may have misspoke. THE COURT: That was my next question to you, is what actually is the date? MR. STILLS: The deadline, um, I believe, is January th or th. They published their notice of decision on the st, Thanksgiving week. THE COURT: Okay. MR. STILLS: The public is required to respond by the week after Christmas and New Years and the holidays, which start up I believe on the th. I -- you know, one of the things, if the government was willing to extend that deadline out commensurate with its own request for time to work on things in a reasonable pace, that's something we could be willing to discuss. Did I answer your question, Your Honor? THE COURT: Yes. SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

17 0 0 MR. STILLS: Thank you. THE COURT: Yes. Do you agree with the deadline? MR. WU: I have no knowledge of the deadline because that's a completely separate process that I'm not involved in. I'm only involved in this -- this FOIA matter. If I could just address a couple points, Your Honor. THE COURT: Yes. MR. WU: Um, if -- if plaintiff's counsel is saying that the letter details -- which it does -- everything that is going to be released, I don't know why that's insufficient for them to settle the case. Essentially, what they're saying is that they don't trust the agency. Which I completely understand they're entitled to do, but which is typically resolved on briefing, with a motion, and a Vaughn index. And again, a very reasonable deadline from all the logistical things I've just described, which basically puts us at January th or th, which I understand is their deadline, but then, you know, it's only a month to do that. So, I think that's -- that's very reasonable. And they're not entitled to a Vaughn index at the administrative level. Legally that is very clear. The Vaughn index is something that's typically submitted with a motion for summary judgment. And I can cite you the case law about the Vaughn index if you'd like. But -- so, you know, everything they're saying about a Vaughn, I mean, is SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

18 0 0 basically about timeliness. And as I said, there's no indication prior that they -- that they wanted to push it up. They knew that this decision was -- was upcoming. The Forest Service had said beforehand that it was going to be issued some time in the fall. As I mentioned, lawsuit filed September th, scheduling conference not until today. We could have had the scheduling conference, you know, anytime before the 0 -- I think we didn't even extend to answer the complaint. I think we answered within the 0 days, which is a shorter timeframe than is typically, you know, allowed by the government for time to answer complaints. Right? And so, you know, now -- again, they're not going to get a legal decision, and so I think having an earlier deadline for some other documents that would normally be part of a summary judgment motion is only going to delay things further because we have to finalize, you know, it piecemeal instead of doing it all as one package. So -- THE COURT: All right. MR. STILLS: Your Honor, um, we're hearing more facts from counsel that are incorrect. This decision was supposedly going to come out January, 0. That's actually confirmed in documents we just got that were previously not available to us. A decision has been a month out for more than a year -- a couple weeks out for more than a year. So, SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

19 0 0 the fact that it came out Thanksgiving week was quite a surprise to all of my clients. Surprise is the kindest part of it. Promises to produce documents have been made and broken a couple of times in this litigation. We thought we were going to get them on two different occasions. For whatever reason the agency didn't come through with those representations that were made to us. And, again, the Vaughn index and the search declaration, as Judge Kane laid out in the Information Network For Responsible Mining versus BLM, F.Supp. Second at, after we find out that the government has not met its statutory deadlines, the case comes into a de novo posture with the burden on the government to prove its case through a Vaughn index, declarations and search. That's what we're asking for here. If we had those in hand, um, I think we might not go to summary judgment. We might settle this case. But I -- I just -- I -- the facts that are being presented here are very disparate between what the defendant is telling you has transpired and what we're telling you has transpired. Again, as you said, the going to school on the case. If we were to force the issue, and people were to put their signatures at the bottom under a sworn statement, I think things would happen. They would happen fast and we'd SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

20 0 0 0 be done. I can't say that for sure, but that's how I see these cases settle. If they push into simultaneous summary judgment the government will have invested a lot of time in their position, everybody solidifies, the chances of settlement go away. It's our view that with the Vaughn index an assertion -- and assurances there has been a search done, because we've gotten new indications that the Washington office has not responded that came out with the December documents. So, two intervening things. The -- the decision -- or the decision that's now due on objections January th or th, I believe, and those documents that have come out. If we can get the proofs, real proofs, proofs that plaintiffs deserve when they bring their case to federal court after the agency has not resolved their appeal, if we get those proofs that we deserve under the statutory requirements, I think there's a real good chance this case is over. It may not be, but I think that will push this case into either a settlement position or a more narrowed summary judgment position based on, again, that Inform verses BLM case (unintelligible). THE COURT: All right. Well, hearing the arguments of counsel, it strikes me without really too much commentary on what happened before the case is filed, there's been, I think, no dispute about the timing of what happened SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

21 0 0 before that time. But looking at the filing of the case, the case was filed on September th, 0, basically asking the government to do what they think it should have done, and the answer was filed on 0/. So, it's, you know, right after that. There's no extension or anything for the answer, and a month later -- well, five weeks to be -- well, not quite five weeks later the final decision is issued. So, it isn't -- I don't think that from the time the case was filed the government has been dragging its feet at all. Now, I'm not commenting on anything before that, and I'm not trying to make any ruling that anybody is either in bad faith or good faith, it's just noting these dates. And what it says to me is the government is moving right along. The case is scheduled for a scheduling conference in an absolutely routine fashion. I'm telling you, we don't even know really what the case is about. It comes in, we look at your Rule deadlines, and we set a scheduling conference, you know, in every case. So, that wasn't done for any purpose of delay, it's just that's what Rule said you had to do. You have to have it by a certain date. I think we set it a week or two ahead of that usually to have some leeway. But, here we are now on December -- what are we -- 0, and we're right before the holidays. And I understand what plaintiff wants, but what I have -- what I'm faced with is the government is SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

22 0 0 agreeing to give it to you they just want until February th, which seems reasonable to me. I don't -- I do understand the problem with the comment period, but you're not going -- there's no question that you're not going to have the documents that you may feel should not have been exempted before that -- end of that comment period. What you might have if it wasn't the holiday period is the Vaughn index. But I did read the case law. I read a couple of cases that talked -- because I had read about whether or not it should be filed in conjunction with the motion, and uniformly it's filed in conjunction with the motion. It's not filed just because a case is filed. So, I just don't see any reason to push this up unreasonably on the government because I don't think it's going to benefit you necessarily. I think it benefits you overall. Don't get me wrong. It certainly benefits you to have all these things, and you're entitled to them, but I don't think that there's any reason to rush it. That's what I'm saying. MR. STILLS: Okay. With that, if -- I think all that we've discussed goes to that second point that I had, the one practical and the one procedural. Given everything, the facts and circumstances on this case, the bad faith that we've alleged, you know, the pattern and practice that shows up through those cases, what we would look for then is -- or SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

23 0 0 what we would propose is that after that Vaughn index, search index, summary judgment, all the government's proofs would come in with the summary judgment, that there be a period of time that is built into this scheduling order that we don't need to come back and ask for a period of -- ask for a stay, show cause, but that we can have a period in which we can conduct some discovery, and then have our dispositive motion deadline and responses that are also typically filed with cross-motions. So have our cross-motion due after a period of -- accelerated period of discovery. You know, it may involve a deposition of a declarant. It would probably be heavily factored on a short set of written discovery concerning anything that's not addressed, or the bad faith, or more than likely the third party disclosures that I think we already are seeing evidence of. THE COURT: Well, it strikes me, though, that in a case like this you don't get automatic discovery; that you have to have a reason for why you need it. You have to make a showing, right, that you need it, like any other administrative record kind of case? MR. STILLS: Um, I don't believe that we need to make, necessarily, a showing. I don't know that it's automatically eliminated. I do need to address one point. This is not an administrative record kind of case. There is SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

24 0 0 no administrative record. It's de novo. The government is generating its evidence, as they've said, during the procedures. So, there is no administrative record to review. The court has -- and this is from the Anderson case -- has broad discretion based on what it sees in front of it as the case is presented to build those discovery devices in to allow a period for -- you know, it's within the Court's discretion to build that in. It's within the Court's discretion if the government makes a showing to defeat any discovery motions that would be filed. The -- the Rules of Civil Procedure apply to both parties in this case. And there may be reason that discovery is not had, but I think it's clear that it is within the Court's discretion. The Anderson case lays that out. The cases that precede this one has involved discovery. It's -- it's often provided, and I would also suggest that perhaps the reason you don't see a lot of cases reported where discovery is granted is because once discovery happens and we start getting down to the nitty-gritty, both sides go to school on the case and gets settled. These should be straightforward cases, but with all of our ability -- all of plaintiffs ability to make its case and gain the information that is in the sole possession of the government it's just a -- it's just an unfair setup especially under these circumstances. And if you look at the cases that precede SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

25 0 0 this one on the same subject matter, discovery has been a regular feature. MR. WU: Your Honor, I think that the case law -- there's not a lot of case law on discovery in FOIA matters because there's not a lot of discovery in FOIA matters. And plaintiff's counsel is correct that it's de novo review, but I think you're correct that it's essentially similar to a record review proceeding where it's based on a FOIA request that was submitted previously. And so to the extent that discovery is being used to ask new questions or essentially propound new FOIA requests, you know, that's not appropriate. And, in addition, I think it's correct that there must be some showing of bad faith. Although, plaintiff's counsel has alleged bad faith, this case, at this point, it's only allegations. He's been released -- they've been released many hundreds of pages of unredacted communications in response to the FOIA request, and I haven't heard him point to any specific ones that point to any bad faith or anything that, you know, he's gleaned from the responses thus far that show bad faith, and I don't believe that there has been any in this case. So, I think those are just allegations at this point. And if upon our filing of our sworn declarations they see something, yes, they're more than welcome and we're more than happy to grant them time to analyze those and see SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

26 0 0 if they need to file a motion under Rule (d) to obtain that discovery if they need it at that time. That's perfectly legitimate. But just to at this point on the basis of -- as you said, this case was just getting started. We're just at the scheduling conference. To say that there's discovery at this point, I think, is unnecessary. In addition, I would note that there is an issue of attorney's fees, because FOIA does have an attorney's fees provision. And so, to the extent that if we win on summary judgment then obviously no discovery was necessary. But if there's discovery conducted in the meantime, basically that has the affect of increasing fees as well, or potential fees. THE COURT: Does the -- do the attorney fees work both ways? MR. WU: No, Your Honor. It's just for the requester. THE COURT: All right. Well, I think this is probably more easily resolved by lining out a time for the government to file its motion for summary judgment, its Vaughn index and its declarations. And I think that the date suggested of February th, 0, is a reasonable period of time to do that. It's pretty quick and there's no real delay. I think at the point, though, where they do that, that's when plaintiff needs to be able to analyze whether or SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

27 0 0 not it needs more discovery. It may or may not. I mean, as I hear the arguments of both sides, really you've got to see the Vaughn index first and the declarations first to see if you think that there's reason to discover anything else. So, I think the best thing to do would be to give you a timeframe to file a Rule (d) motion and set up a very expedited briefing schedule on that, or -- so, I would have both of these dates, okay. So, you file a Rule (d) motion, and we go -- this is Branch ; we go to an expedited briefing schedule and I want to set a hearing on it. So, we -- we're all there, we have it, you know, we'll talk about it, or you file a response to the motion for summary judgment without discovery. All right? So, let's set all of those dates and then we know where we're going. If you filed a Rule (d) motion, obviously -- and we'll put this in the order -- your response time will be stayed until we resolve the Rule (d) motion. And if it's resolved in your favor and you get discovery, then at the hearing we'll set how long. We'll set those next time periods. MR. STILLS: Okay. The only thing I would like to interject is if we could add the day for our cross-motion to be the same as that response so we're not expected to file a cross-motion for summary judgment before we've seen the Vaughn and other declarations. SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

28 0 0 THE COURT: Okay. So cross-motion and response? MR. STILLS: Yes. THE COURT: Okay. So, give me some input. I know you don't really like this procedure so I'm not asking you to ratify it, but I do want to know, how long do you think you need to get that (d) motion together if you want to do one? MR. STILLS: If I may look at my calendar real quick. THE COURT: Sure. MR. WU: And just to clarify, Your Honor, then we can just label the February th date, defendants' dispositive motion deadline? THE COURT: Yes. MR. WU: Okay. THE COURT: Now, do I have to put in there that you're ordered to provide a Vaughn index? Obviously, you are. MR. WU: Yeah. I mean, we will. It's -- THE COURT: Okay. So, we'll -- we'll add that to the court's order that it's the -- it's the deadline to file a motion for summary judgment with a Vaughn index and declarations as required. MR. WU: Sure. That's fine. THE COURT: Okay. MR. STILLS: I was just looking. I know I'm going SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

29 0 0 to be out of office the first part of March. THE COURT: See, you want me to consider your schedule, right? I'm only -- I'm only ribbing you. You don't really have to respond. MR. STILLS: I'm not ratifying, I'm just accepting and moving to the next step, Your Honor. So, February -- THE COURT: So, let's say you get it on February th. MR. STILLS: (Unintelligible). I was looking at about days, but then that starts landing in -- Yeah, let's do it -- let's move to forward instead of back (unintelligible). So, what date would you -- UNKNOWN SPEAKER: (Unintelligible). MR. STILLS: Yeah. So, perhaps I think probably days which would come in -- um, we could make it the Thursday the -- February th? THE COURT: Okay. So, the deadline to ask for discovery under Rule (d) will be February th, 0, and then -- first, I want to ask the government how long it needs for a response, assuming that we're going to expedite this as much as possible, but does it really matter? Are you going to be gone during that period of time so that they get more time? Or how do you want to work that since you said you were going to be gone the first week in March? MR. STILLS: Yeah, it's actually the period -- SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

30 0 0 0 over the period of time. I would be back on the week of the th, so I don't know -- THE COURT: All right. So could the government respond by March th? MR. WU: How many days is that? I've asked for the typical, maybe, reply response deadline, which is days. THE COURT: It's -- let's see -- seven, eight, nine -- eleven. MR. WU: Okay. Could we have? THE COURT: How about -- MR. WU: Okay. THE COURT: -- to. MR. WU: Okay. THE COURT: That would be March th. MR. WU: March th. THE COURT: All right. March th for a response. No reply. Let's set a hearing. How about March th at :0? Of course, I'm kind of killing myself there. I don't have much time to read or explore it. How about March th? Give myself a week. MR. WU: Also :0, Your Honor? THE COURT: Yes. Does that work for plaintiff? MR. WU: That works for me. MR. STILLS: Yeah. SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

31 0 0 THE COURT: Okay. So March, 0, at :0 we'll have a hearing on discovery. Now, let me know if -- and this will be -- I'll place this burden primarily on defendant, but for both of you really. If you look at it and your response is going to be "okay," let me know that. And we'll probably still have the hearing so that we can set up our schedule, but come -- come to the hearing prepared with the schedule in case you win. If they oppose it, come with a schedule for discovery. Don't just leave me hanging to guess, okay, and saying, well, that doesn't really matter to you as much, right, for the government. So -- Now, let's assume that you decide you don't want any discovery -- which I think is probably not correct -- but if you don't want discovery and you think you can go forward on your response and your cross-motion, what's a good date to put in there? MR. STILLS: Let's see. MR. WU: While he's getting dates, Your Honor, can I just clarify one point? THE COURT: Yes. MR. WU: Can we just have in the scheduling order, just so it's on the record, that no discovery is authorized until this Rule (d) motion, so -- so that there won't be any intervening discovery? SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

32 0 0 THE COURT: Yes. MR. WU: Okay. THE COURT: Yes. That's correct. MR. WU: Great. THE COURT: Because we're going to talk about whether or not it's necessary and how much and how long. MR. STILLS: Your Honor, for the response cross-motion deadline where we don't go after discovery via the (d), the March th seems like a good date for us as well. THE COURT: All right. MR. STILLS: That let's us have the time to determine and then some time to -- THE COURT: Put it all together. MR. STILLS: -- put it all together. THE COURT: Okay. So, yeah, I think that works. Now, so that the record is clear, these dates are in the alternative. If the plaintiff does file a request for Rule (d) motion discovery, that date for the response and cross-motion will be vacated, okay? So these are alternative dates. If -- if you file the motion for discovery we're going to talk about how long you need for discovery and then set a new date for your response and cross-motion. MR. STILLS: I have one other question if we're done with this. SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

33 0 0 THE COURT: Yes. MR. STILLS: And that is since we would likely have quite a bit of evidence already to support each other's positions and clients, is Your Honor assigned to this case for purposes of settlement conferences or would that be another magistrate? THE COURT: It would be me, but you know you do have to file a motion with Judge Daniel to get a settlement conference. MR. STILLS: Okay. The rules have been changing on those -- THE COURT: Right. MR. STILLS: -- so, I wanted to clarify just what the practice was here. THE COURT: Yeah. They're kind of like this -- but, yeah. MR. STILLS: And I don't know if it's -- well, it is premature because neither of us have a likelihood of settlement, and I think as I presented before that will shake out as we're seeing proofs in each other's position on that. At what point would it be appropriate to try to gain some of the court's time that day if it does appear that a settlement conference could be in order? How far out do we need to -- I'm looking to try to minimize travel time. THE COURT: It -- my calendar can open up pretty SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

34 easy. 0 0 MR. STILLS: Okay. THE COURT: So, it's a matter of getting it in front of Judge Daniel, getting him to sign it, which should be a short matter as long as you put it -- you know, give him reason -- MR. STILL: Okay. THE COURT: -- to take it out of the scope of a normal case. MR. STILLS: So today -- THE COURT: Because they want you to go to private mediation, which is probably not particularly valuable when you're dealing with the government on one side. In my opinion. MR. STILLS: I have had good experiences with -- with -- but February th, should things come together, should we be on the same page, would be the date -- would be a sufficient time to get -- early February to get some of Your Honor's time if that worked into this case? THE COURT: Yes. MR. STILLS: Okay. Not for today though. MR. WU: One other deadline and issue, Your Honor. On the proposed dispositive motion and sort of cross-motion but sort of plaintiff's motion for summary judgment, we'd be willing to basically into one document consolidate a response SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

35 0 0 and reply. And I -- at that point that's a lot of briefing, so I don't know that it's necessary for them -- for plaintiffs then to have a reply to their own motion for summary judgment since the issues seem to be concurrent. So, if we could just consolidate that -- that date as the final date. And it also would sort of just expedite the case as well if we did it that way. MR. STILLS: Yeah, we would be -- so, that's four briefing dates. The motion, response, cross-motion, reply response, and then our reply on our summary judgment. That would -- I think that helps -- that's typically how it's done, but that would clarify instead of long titles on the brief of consolidated response too. THE COURT: Okay. Do you think we need to set dates for that at this point? We can. We've got that alternate date of /, so then we can do, you know, the response -- consolidated response there. MR. WU: I guess I just -- we'll do the presumptive deadlines for that -- THE COURT: Okay. MR. WU: -- after the / date, so that the plus three or whatever is fine for us. I just wanted to clarify that I think a response and reply, we'll just do that as one document -- THE COURT: I think that -- SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

36 0 0 MR. WU: -- just to minimize paper. THE COURT: -- would be helpful. MR. STILLS: We -- we don't have any objection. We actually prefer not having to cite two different pleadings that have to repeat themselves. So, as long as it's -- as long as it's the four briefing deadlines we're -- we're good with that. THE COURT: So, your cross-motion is -- and that's how I put it down on my notes. Your response and your cross-motion is one document, right? It's a response to their motion for summary judgment and your cross-motion for summary judgment. MR. STILLS: Yes. And it may raise additional issues that were not raised -- THE COURT: Right. MR. STILLS: -- in their cross-motion. So, yeah. So, therefore, they get the response reply, and then we have only a reply. THE COURT: Right. MR. STILLS: And it needs to be focused on the response section and not a -- not a surreply. THE COURT: Right. MR. STILLS: Which is a common objection it gets, but those are the parameters. MR. WU: I guess I'm just wondering if plaintiff's SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

37 0 0 counsel thinks a reply -- a final reply date is necessary just because at that point there's been so much briefing. I mean, two separate motions for summary judgment on essentially the same issues, and then -- and then an additional reply, I just -- in terms of the expedited schedule it seems like it would make sense to just have that final response from -- consolidated response reply from the government. MR. STILLS: With our cross-motions, and if we're presenting evidence and they're presenting evidence in response, I think we've got several burdens moving around that we will have never seen; their response to the issues raised in our cross-motion. So, that reply would be limited to issues raised for the first time in our cross-motion. It wouldn't be a second bite at the apple. It wouldn't be a surreply, you know. THE COURT: No. Because it's a reply to -- MR. STILLS: You know, we know -- we know we're not supposed to do that. I know that has become controversial in some cases where counsel will overstep, but we're looking at a reply that goes back to the issues raised in our summary judgment motion. THE COURT: So it would be a pretty limited reply because it's based on your motion for summary judgment, their response to that piece? SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

38 MR. STILLS: Correct. THE COURT: Not so much their reply to their own MR. STILL: Exactly. THE COURT: -- motion for summary judgment. Yeah. MR. STILLS: They may intertwine them a little bit. There can be a little overlap, but it would be focused in on the response section going back to issues, fact and law raised in our cross-motion. THE COURT: Yeah. I'm not going to require them to give up their right to a reply if they think it's necessary. It may not be necessary. I would keep in mind, I'm almost certain that Judge Daniel will keep this on his docket for purposes of that dispositive motion. He doesn't usually refer things like this to me for a recommendation, but I think he feels the same way I do that less is better than more. If you start repeating yourself what you end up with is a judge who's zoned out. Right? Oh, I've already read that, ah. So you miss something important. So don't do that. You know, keep it as short as you can to keep our attention no matter which one of us it is. But that said, it's up to you. Okay. I think we have all the dates we need. Is there anything else? I'm not going to really enter this scheduling order. We'll -- of course it's of record, but I SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0

39 0 0 think we'll just do minutes that -- that state how we've resolved the issues in the scheduling order, and how we're proposing to brief this out. I don't really think there's anything more, do you? We have a hearing, so it's not going to fall through the cracks. Honor. MR. STILLS: We don't have anything else, Your MR. WU: That's it, Your Honor. THE COURT: Okay. Then we'll just enter the minute order. We will not officially sign this proposed scheduling order, but the minutes of this proceeding will be the scheduling order in this case. And we can put that in the minutes. All right. We'll be in recess. MR. WU: Thank you, Your Honor. MR. STILLS: Thank you, Your Honor. MR. SANDLER: Thank you. THE COURTROOM DEPUTY: All rise. (Whereupon, the within hearing was then in conclusion at 0: a.m. on this date.) I certify that the foregoing is a correct transcript, to the best of my knowledge and belief (pursuant to the quality of the recording) from the record of proceedings in the above-entitled matter. /s/ Kelly Mair December, 0 Signature of Transcriber Date SHERMAN STREET, SUITE 0, DENVER, CO FAX 0--0