Informed Consent Action Network v. United States Food and Drug Administration

Background

The defendant filed a letter motion seeking an order “quashing” the plaintiff’s discovery requests. The court construed that request as a motion under Federal Rule of Civil Procedure 26(c)(1)(A) to forbid the plaintiff from taking discovery.

The case is an action under the Freedom of Information Act, a federal law concerning access to agency records. The court stated that discovery in such cases is rare. It explained that discovery may be allowed when the plaintiff sufficiently shows that the agency acted in bad faith, raises a sufficient question about the agency’s good faith, or identifies a factual dispute while calling the government’s affidavits into question.

Parties’ Positions

The defendant argued that a requester cannot serve discovery demands before the court finds that the plaintiff has shown agency bad faith or that the agency has not met its burden under the Freedom of Information Act. It argued that the court had made no such findings and that the plaintiff had not established a basis for them.

The plaintiff responded that its discovery requests were appropriate because Judge Alison Nathan had previously endorsed a statement that the plaintiff “may seek discovery” after the defendant submitted its summary-judgment motion. The plaintiff also argued that discovery was warranted because the defendant had shown bad faith.

Ruling

The court rejected the plaintiff’s interpretation of Judge Nathan’s earlier endorsement. It explained that permission to “seek discovery” was not a determination that discovery was warranted. Based on the record before it, the court found, in its discretion, that the plaintiff had not made a sufficient showing to warrant discovery at that time.

Judge Stewart D. Aaron granted the defendant’s motion. The opinion does not state that the underlying Freedom of Information Act claims were resolved.