Case 2:12-cv-01605-DLR-BSB Document 132 Filed 04/30/15 Page 1 of 8 1 2 3 4 5 6 7 BENJAMIN C. MIZER Principal Deputy Assistant Attorney General ELIZABETH J. SHAPIRO Deputy Branch Director BRAD P. ROSENBERG (D.C. Bar No. 467513) Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 514-3374 Facsimile: (202) 616-8460 E-mail: brad.rosenberg@usdoj.gov Attorneys for Defendants 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 12 13 No. CV12-1605-DLR-BSB Daniel David Rigmaiden, DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR APPROPRIATE SANCTIONS (DKT. NO. 129) Plaintiff, vs. 14 15 Federal Bureau of Investigation, et al., Defendants. 16 17 INTRODUCTION 18 19 Plaintiff Daniel David Rigmaiden has filed a motion to impose sanctions against 20 Defendants Federal Bureau of Investigation and Executive Office for United States 21 Attorneys1 under the theory that defendants did not comply with this Court’s Order 22 requiring defendants to complete their processing, and provide records to, plaintiff within 23 ninety days of plaintiff providing notice that he will pay standard duplication fees. As set 24 forth below, defendants have complied fully with this Court’s Order, and plaintiff has 25 failed to identify any sanctionable conduct or prejudice in any event. Moreover, there is 26 27 28 1 Motion for Appropriate Sanctions Against Defendants FBI and EOUSA for Failure to Comply with the Court’s Deadline (Dkt. No. 129, 04/16/2015) (“Pl. Sanctions Mot.”). Case 2:12-cv-01605-DLR-BSB Document 132 Filed 04/30/15 Page 2 of 8 1 no sanctions rule pursuant to which plaintiff can bring his motion, and he has cited none. 2 Accordingly, plaintiff’s motion should be denied. 3 ARGUMENT 4 5 I. Sanctions Are Inappropriate Because Defendants Have Complied with this Court’s Order. 6 The basis for plaintiff’s sanctions motion is that defendants FBI and EOUSA 7 completed their production, and mailed documents to plaintiff, by the date that those 8 documents were to be “provided” to plaintiff. Here, the government reasonably 9 construed this Court’s deadline as the date by which responsive documents were to be 10 sent to plaintiff. Sending documents by a due date is the method by which agencies 11 routinely respond to FOIA requests and is consistent with the principles underpinning the 12 Federal Rules of Civil Procedure. See Fed. R. Civ. P. 5(b)(2)(C). 13 In fact, defendant EOUSA provided its records to plaintiff early by mailing them 14 to plaintiff on Friday, April 10. As the exhibit attached to Mr. Rigmaiden’s motion 15 makes clear, EOUSA’s letter to plaintiff was dated April 10, and was stamped on April 16 10, because it was mailed that day. See Pl. Sanctions Mot. Ex. 01, Dkt. No. 129-1, at 4.2 17 2 18 19 20 21 22 23 24 25 26 27 28 As noted in EOUSA’s April 10 letter to Mr. Rigmaiden, EOUSA has previously offered for release records from its response to an ACLU FOIA request which generally overlaps, in some respects, with Mr. Rigmaiden’s request. These records were subject to litigation in the United States District Court for the Northern District of California. See American Civil Liberties Union of Northern California v. Department of Justice, N.D. Cal. No. 12-cv-4008-MEJ. On September 30, 2014, that court issued an opinion granting-in-part and denying-in-part the parties’ cross-motions for summary judgment regarding the categories of records EOUSA referred to. ___ F. Supp. 3d ___, 2014 WL 4954277 (N.D. Cal. Sept. 30, 2014). In so doing, the court upheld some of the FOIA exemptions that the government claimed, but not others. See id. The government subsequently filed a Notice of Appeal to the Ninth Circuit. Because Mr. Rigmaiden has not expressed an interest in receiving these records, the government does not construe them to be responsive to Mr. Rigmaiden’s FOIA request, and therefore does not intend to re-defend the validity of exemptions claimed in those records. If Mr. Rigmaiden expresses an interest in these records, however, EOUSA is prepared to provide the previously-disclosed records to him (even though he may have them already, as one of the records released from the ACLU FOIA request was filed as an exhibit in Mr. Rigmaiden’s criminal case). If EOUSA were required to defend the validity of the exemptions in these records (to the extent any particular records that were either withheld-in-full or withheld-in-part are actually responsive to Mr. Rigmaiden’s request for records relating to “Harris” equipment), it is prepared to do so. -2– Case 2:12-cv-01605-DLR-BSB Document 132 Filed 04/30/15 Page 3 of 8 1 Undersigned counsel’s e-mail to Mr. Rigmaiden does not indicate otherwise, noting that 2 “[t]he FBI and EOUSA have provided you with their final releases by today (April 13, 3 2015) by mailing those releases to the address that you have previously provided to the 4 government.” Dkt. No. 129-1 at 2 (emphasis added). In this regard, plaintiff’s assertion 5 that EOUSA engaged in “gamesmanship” by “wait[ing] until April 13, 2015, to put the 6 letter and records in the mail,” Pl. Sanctions Mot. at 3, is not merely incorrect; it is 7 entirely made-up and unsupported by the record, as EOUSA in fact mailed the production 8 on April 10. 9 Nor was the FBI engaging in any “gamesmanship,” as plaintiff alleges. See 10 Sanctions Mot. at 2-3. First, and as plaintiff himself notes in his motion, the FBI had 11 already provided Mr. Rigmaiden with two partial releases reflecting the re-processing of 12 nearly 10,000 pages of documents. See Pl. Sanctions Mot. at 1-2. In fact, the FBI rolled 13 its production to plaintiff, providing documents on both March 3, 2015 and March 31, 14 2015. See Ex. A (March 3, 2015 letter from FBI to Mr. Rigmaiden); Ex. B (March 31, 15 2015 letter from FBI to Mr. Rigmaiden). Nothing in this Court’s scheduling order 16 required the FBI to roll its production to plaintiff, or to provide any records in advance of 17 April 13. The fact that the FBI released a large volume of records to plaintiff on a rolling 18 basis and well in advance of this Court’s deadline undercuts any notion of 19 “gamesmanship.” Moreover, the FBI provided the April 13, 2015 release via Federal 20 Express overnight delivery; the delivery receipt (attached hereto as Ex. C) demonstrates 21 that delivery was made the very next day, on April 14, 2015.3 22 Plaintiff’s “gamesmanship” argument also ignores the enormous undertaking that 23 plaintiff’s requested re-processing of documents entailed. Five FBI FOIA analysts have 24 been working nearly full-time re-processing plaintiff’s request. That work has also 25 3 26 27 28 Mr. Rigmaiden did not file his sanctions motion until April 16 – two days after he received the FBI’s release. His assertion that “Defendants are 5 days late on providing Plaintiff with all responsive records,” Pl. Sanctions Mot. at 2, is, at best, incomplete. Plaintiff had already been in receipt of the FBI’s records for nearly two days by the time he filed his sanctions motion; as for EOUSA, it had already mailed its records the previous Friday via US Mail. -3– Case 2:12-cv-01605-DLR-BSB Document 132 Filed 04/30/15 Page 4 of 8 1 required the dedication of other FBI resources, including from the FBI’s Operational 2 Technology Division. The FBI was still re-processing plaintiff’s request – and making 3 final decisions on releases – on the morning of April 13. Complying with the Court’s 4 Order was, in short, a monumental effort that plaintiff’s motion completely ignores. 5 Plaintiff criticizes undersigned counsel for not personally providing the documents 6 as an e-mail attachment. Plaintiff, however, did not express his views regarding “receipt” 7 of the records until the evening of Saturday, April 11, leaving undersigned counsel with 8 one business day to attempt to respond to plaintiff’s request. By that time, EOUSA had 9 already mailed its documents to plaintiff. The FBI’s release consisted of 19 separate 10 CDs, and mailing CDs is the standard method by which the FBI releases documents in 11 electronic format. As both the FBI and EOUSA were in full compliance with this Court’s 12 Order, there was no need for litigation counsel to attempt to provide these thousands of 13 pages of documents by e-mail (if it was even practical to do so – it was not). Moreover, 14 Mr. Rigmaiden’s e-mail was clear that he expected to receive responsive records in his 15 physical mailbox, and not via e-mail: 16 The word “provide” means that they are in my hands within 90 days. Your 90 days is up on April 13, 2015. I will check my mailbox on the morning of April 14, 2015. All of the records from both the FBI and EOUSA need to be there. Just so you are ready for it, my motion for sanctions against your clients for violating the court order (assuming they do) will be filed on April 14, 2015. 17 18 19 20 Dkt. No. 129-1, at 3. 21 22 II. Sanctions are Inappropriate Because the Government’s Conduct Does Not Fall Within the Scope of Any Sanctions Provision That Plaintiff Can Invoke. 23 Plaintiff has filed a sanctions motion, but has not identified the rule pursuant to 24 which the motion is being brought. The Federal Rules of Civil Procedure contain two 25 sanctions provisions; neither is applicable here. First, Rule 11 provides for sanctions 26 relating to misrepresentations that are made to the Court. See Fed. R. Civ. P. 11(c). 27 There are no representations to the Court at issue here. Rule 37 provides for sanctions in 28 the discovery context. The release of records pursuant to a FOIA request is not -4– Case 2:12-cv-01605-DLR-BSB Document 132 Filed 04/30/15 Page 5 of 8 1 discovery. Thus, neither sanctions provision is applicable. Both provisions, however, are 2 informative because they impose numerous, procedural steps that must be undertaken 3 before a sanctions motion can be brought. For example, Rule 11 contains a 21-day safe 4 harbor provision that allows a party to withdraw a contested paper. See Fed. R. Civ. P. 5 11(c)(2). Rule 37 requires that parties first attempt to meet and confer, and then file a 6 motion to compel, before sanctions can be sought for failure to comply with a subsequent 7 court discovery order. See Fed. R. Civ. P. 37(b)(2)(A). While neither rule is applicable 8 here, both are nonetheless instructive because they require a meaningful opportunity to 9 correct behavior before a sanctions motion is filed with the Court. Mr. Rigmaiden’s 10 Saturday evening e-mail did not provide any meaningful opportunity for the government 11 to respond. Somewhat ironically, plaintiff’s filing of a sanctions motion that is 12 unsupported by the facts, that does not comply with the federal rules, and that seems 13 intended merely to harass defendants, is itself the type of conduct that – in the 14 government’s view – could fall within the scope of Rule 11.4 15 Finally, plaintiff argues that he has suffered prejudice, but fails to identify any 16 prejudice that he has suffered, other than having to wait a few days to receive his 17 documents (although for the FBI, any delay was, at most, one day). The government 18 does not believe that plaintiff has suffered any prejudice because defendants complied 19 fully with this Court’s order (and then some, by providing thousands of pages of 20 documents months in advance of the Court’s deadline). Moreover, and as will be 21 explained in the government’s opposition to plaintiff’s motion for early Vaughn indices, 22 plaintiff is attempting to re-litigate some issues that have already been decided by this 23 Court, and in other respects issues for which plaintiff does not bear a burden of proof on 24 summary judgment in any event. Hence, there can be no prejudice. If, however, this 25 4 26 27 28 This Court’s local rules do contain a sanctions provision. See L.R. Civ. 83.1(f)(1)(A). Those sanctions, however, are to be imposed only upon the Court’s “own initiative.” Id.; see also id. 83.1(f)(4) (“The initiation of enforcement proceedings under this Local Rule is within the sole discretion of the Court.”). And in any event, the Court’s power to impose sanctions should be construed narrowly. See generally Zambrano v. City of Tustin, 885 F.2d 1473 (9th Cir. 1989). -5– Case 2:12-cv-01605-DLR-BSB Document 132 Filed 04/30/15 Page 6 of 8 1 Court disagrees, an appropriate remedy would simply be to move the summary judgment 2 deadline back to compensate for any delay in delivery. If it does so, the government 3 respectfully requests that the Court set a new summary judgment deadline no earlier than 4 June 5, 2013 (two weeks and two days after the current deadline), as undersigned counsel 5 has a conflict in another matter that severely limits his ability to work on this case from 6 the period from May 21 to May 31. 7 8 CONCLUSION This Court should deny plaintiff’s motion for sanctions. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6– Case 2:12-cv-01605-DLR-BSB Document 132 Filed 04/30/15 Page 7 of 8 1 2 3 4 5 DATED: April 30, 2015 Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General ELIZABETH J. SHAPIRO Deputy Branch Director 10 /s/ Brad P. Rosenberg BRAD P. ROSENBERG D.C. Bar No. 467513 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 514-3374 Facsimile: (202) 616-8460 E-mail: brad.rosenberg@usdoj.gov 11 Attorneys for Defendants 6 7 8 9 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7– Case 2:12-cv-01605-DLR-BSB Document 132 Filed 04/30/15 Page 8 of 8 1 2 3 CERTIFICATE OF SERVICE I hereby certify that on April 30, 2015, I served the attached document on Plaintiff via the CM/ECF system, who is a registered participant. 4 5 6 7 8 9 10 11 /s/ Brad P. Rosenberg BRAD P. ROSENBERG D.C. Bar No. 467513 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 514-3374 Facsimile: (202) 616-8460 E-mail: brad.rosenberg@usdoj.gov Attorney for Defendants 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8–