UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
AMERICAN CIVIL LIBERTIES UNION and
THE AMERICAN CIVIL LIBERTIES
UNION FOUNDATION,
Plaintiffs,
v.
U.S. DEPARTMENT OF JUSTICE, including
its components the Office of Legal Counsel
and Office oflnformation Policy, DEPARTMENT
OF DEFENSE, DEPARTMENT OF STATE,
and CENTRAL INTELLIGENCE AGENCY,
Defendants.
USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: J I
DATE FILED: 1/30( /5
15 CV 1954 (CM)
MEMORANDUM SCHEDULING ORDER
McMahon, J.:
In view of the court's ever-evolving views on how to handle a case of this sort with a
modicum of efficiency, I am providing the parties with the following scheduling order:
1. Vaughn Indices of Withheld Documents are due from each of the Responding
Agencies (CIA, DOD, DoJ/OLC) on July 17, 2015. I am unmoved by arguments
about the burden this imposes on the agencies. These continuing, updated requests for
information cannot possibly come as a surprise to the Government, and the exercise
of preparing a response should have begun as soon as the complaint was filed.
2. The plaintiffs will provide the court with a brief and exhibits indicating each and
every Public Disclosure on which they intend to rely to argue that the Withheld
Documents must be disclosed because any otherwise-applicable FOIA exemptions
have been waived on August 28, 2015. Please provide the court with a copy of each
and every relevant Disclosure, and please highlight the portion of the document that
you believe constitutes the Disclosure. It is very time-consuming to search through
entire reports or Congressional hearing transcripts in order to figure out what the
ACLU deems relevant; in each Public Disclosure please point me to exactly what you
think constitutes a waiver.
Case 1:15-cv-01954-CM Document 16 Filed 04/30/15 Page 1 of 2
3. The Government must move for summary judgment by September 30, 2015. The
presentation of information by each agency must be made on a document by
document basis for each and every document that appears on the Vaughn Index. The
Government must comply with the court's orders of January 7, 2015 (Docket 115)
and February 24, 2015 (Not Docketed, see Docket Entry 118) in the related case
captioned ACLU v Department of Justice, 12 CV 794 (CM), for the form that the
document by document presentation must take; in addition, the Government must go
through each of the disclosures referenced in paragraph 2 above and must either
explain why the disclosure does not encompass any material in each Withheld
Document or must certify that the matters disclosed in each disclosure are not in fact
referenced or discussed in each Withheld Document. The Government is free to
submit any other affidavits that it believes necessary to establish such matters as
proper classification, etc., but each Responding Agency MUST submit to this court a
document-by-document presentation in the format that the court has found to be
helpful - plus the supplementation to address specifically the plaintiffs' Public
Disclosures.
4. The ACLU must respond to the motion by October 30, 2015. Since the ACLU will
have already provided the court with its list of Public Disclosures, I don't imagine
there will be much for plaintiffs to say.
5. The Government must file any reply it deems necessary by November 13, 2015.
We all know that the issue in this case is not going to be whether documents are subject to
FOIA exemptions (b)(l), (b)(3) or (b)(5)- all of them likely will be subject to at least one of
those exemptions, and quite possibly to all three . I have been at this exercise long enough to
know that. The issue is whether the Government has waived its right to rely on those exemptions.
I have set long dates (longer than the dates I originally had in mind, which would have had the
motions briefed by the end of the summer) and I will not'countenance any extensions.
Dated: April 30, 2015 /j
BY ECF TO ALL COUNSEL
Case 1:15-cv-01954-CM Document 16 Filed 04/30/15 Page 2 of 2
