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Case TitleSCUDDER et al v. CENTRAL INTELLIGENCE AGENCY
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2016cv01917
Date Filed2016-09-28
Date ClosedOpen
JudgeJudge Trevor N. McFadden
PlaintiffJEFFREY SCUDDER
PlaintiffKEN OSGOOD
PlaintiffHUGH WILFORD Department of History, California State University, Long Beach
PlaintiffMARK STOUT John Hopkins University, Krieger School of Arts and Sciences
Case DescriptionJeffrey Scudder, Ken Osgood, Hugh Wilford, and Mark Stout submitted FOIA requests to the CIA for an electronic copy of 386 historical documents listed on an Excel spreadsheet. The requesters also requested a fee waiver. The CIA acknowledged receipt of the requests, but after hearing nothing further from the agency, Scudder, Osgood, Wilford, and Stout filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees, Choice of format

DefendantCENTRAL INTELLIGENCE AGENCY
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [16]
FOIA Project Annotation: Judge Trevor McFadden has ruled that Jeffrey Scudder, Ken Osgood, Hugh Wilford, and Mark Stout have failed to state a claim showing that the CIA has a policy or practice of denying requests for electronic records. Based on a 2014 ruling by Judge Beryl Howell in another suit brought by Scudder finding the agency had not shown that electronic records were not readily reproducible under FOIA, Scudder, Osgood, Wilford, and Stout filed suit after the agency refused to disclose 386 documents in electronic format. But this time, McFadden found Scudder and the others had no claim. He noted that "although it asserts, in conclusory fashion, that the CIA has a policy of refusing to release responsive records in electronic format, the complaint is devoid of facts sufficient to advance this allegation from being possible to plausible." He observed that Scudder's complaint indicated the CIA had disclosed electronic records on at least two occasions in recent years. He pointed out that "the reasonable factual inference to be drawn from these allegations is that the CIA has produced documents electronically on several occasions, and not, as Plaintiffs have asserted, that the CIA has categorically refused electronic production of responsive documents." McFadden added that "Plaintiffs do not allege any instance where a requestor did not receive the documents requested in electronic format; or, more significantly, any instance where a requester improperly did not receive the documents in electronic format as requested. By alleging that there have only been a few instances where the CIA has produced responsive records electronically, Plaintiffs, at best, plead facts 'merely consistent with' liability, which is well-settled as insufficient." McFadden found Howell's previous comments irrelevant, noting that "I cannot reasonably impute Chief Judge Howell's summary of the Defendant's apparent litigating position in a case several years ago as fact of the Defendant's current policy or practice, which is the focus of this lawsuit." McFadden also found Scudder had failed to state a pattern or practice claim. He pointed out that "Plaintiffs in this matter have not alleged any instance where the Defendant was found to have violated FOIA " or even a specific instance where the Defendant violated FOIA " by failing to provide the requested information electronically where readily producible. Indeed, because this lawsuit and the First Amended Complaint were filed prior to the Defendant's response to Plaintiffs' FOIA claims, it is not even clear in this case that the Defendant will respond that the documents sought are not readily producible in electronic format, or not otherwise produce non-exempt records requested by the Plaintiffs in electronic format."
Issues: Litigation - Jurisdiction - Failure to State a Claim, Choice of format - Burdensome
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2016-09-281COMPLAINT against CENTRAL INTELLIGENCE AGENCY ( Filing fee $ 400 receipt number 0090-4689385) filed by MARK STOUT, JEFFREY SCUDDER, HUGH WILFORD, KEN OSGOOD. (Attachments: # 1 Civil Cover Sheet, # 2 Summons CIA, # 3 Summons USADC, # 4 Summons USAG)(Moss, Bradley) (Entered: 09/28/2016)
2016-09-292NOTICE of Appearance by Mark S. Zaid on behalf of All Plaintiffs (Zaid, Mark) (Entered: 09/29/2016)
2016-09-29Case Assigned to Judge Randolph D. Moss. (dr) (Entered: 09/29/2016)
2016-09-293SUMMONS (3) Issued Electronically as to CENTRAL INTELLIGENCE AGENCY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Consent Form)(dr) (Entered: 09/29/2016)
2016-11-034Unopposed MOTION for Extension of Time to File Answer re 1 Complaint, by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Text of Proposed Order)(Motgi, Anjali) (Entered: 11/03/2016)
2016-11-04MINUTE ORDER: Upon consideration of Defendant's Unopposed Motion for Extension of Time to File Answer, the motion is hereby GRANTED. Defendant shall respond to Plaintiffs' complaint on or before December 5, 2016. Signed by Judge Randolph D. Moss on 11/4/2016. (lcrdm3, ) (Entered: 11/04/2016)
2016-11-07Set/Reset Deadlines: Defendant shall respond to Plaintiffs' complaint on or before 12/5/2016. (kt) (Entered: 11/07/2016)
2016-12-055MOTION to Dismiss Count II by CENTRAL INTELLIGENCE AGENCY (Motgi, Anjali) (Entered: 12/05/2016)
2016-12-126Unopposed MOTION for Extension of Time to File Response/Reply to Defendant's Partial Motion to Dismiss by KEN OSGOOD, JEFFREY SCUDDER, MARK STOUT, HUGH WILFORD (Attachments: # 1 Text of Proposed Order)(Moss, Bradley) (Entered: 12/12/2016)
2016-12-12MINUTE ORDER: Upon consideration of Plaintiffs' unopposed Motion for Extension of Time to File Response/Reply 6 , the motion is hereby GRANTED. It is ORDERED that Plaintiffs shall file any opposition to Defendant's Partial Motion to Dismiss 5 on or before January 2, 2017. Defendant shall file any reply on or before January 17, 2017. Signed by Judge Randolph D. Moss on 12/12/2016. (lcrdm3, ) (Entered: 12/12/2016)
2016-12-12Set/Reset Deadlines: Plaintiffs shall file any opposition to Defendant's Partial Motion to Dismiss 5 on or before 1/2/2017; Defendant shall file any reply on or before 1/17/2017. (kt) (Entered: 12/12/2016)
2017-01-027Memorandum in opposition to re 5 MOTION to Dismiss Count II filed by KEN OSGOOD, JEFFREY SCUDDER, MARK STOUT, HUGH WILFORD. (Attachments: # 1 Exhibit 1 - Lutz Declaration, # 2 Text of Proposed Order)(Moss, Bradley) (Entered: 01/02/2017)
2017-01-028MOTION for Leave to File First Amended Complaint by KEN OSGOOD, JEFFREY SCUDDER, MARK STOUT, HUGH WILFORD (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 - FAC, # 3 Exhibit 2 - FOIA requests, # 4 Exhibit 3 - original Complaint, # 5 Text of Proposed Order)(Moss, Bradley) (Entered: 01/02/2017)
2017-01-03MINUTE ORDER: It is hereby ORDERED that Defendant's Partial Motion to Dismiss 5 be HELD IN ABEYANCE pending resolution of Plaintiffs' Motion for Leave to File a First Amended Complaint 8 . Defendant need not file a reply in support of its motion until further order of this Court. It is FURTHER ORDERED that the parties shall confer regarding Defendant's position as to the Motion for Leave to File a First Amended Complaint 8 , and file a report updating the Court as to that position on or before January 5, 2017. It is FURTHER ORDERED that, if Defendant does oppose Plaintiffs' motion 8 , it shall file an opposition on or before January 16, 2017. Signed by Judge Randolph D. Moss on 1/3/2017. (lcrdm3, ) (Entered: 01/03/2017)
2017-01-03Set/Reset Deadlines: The parties shall confer regarding Defendant's position as to the Motion for Leave to File a First Amended Complaint 8 , and file a report updating the Court as to that position on or before 1/5/2017; If Defendant does oppose Plaintiffs' motion 8 , it shall file an opposition on or before 1/16/2017. (kt) (Entered: 01/03/2017)
2017-01-059Joint STATUS REPORT Re: Plaintiffs' Motion to Amend by CENTRAL INTELLIGENCE AGENCY. (Motgi, Anjali) (Entered: 01/05/2017)
2017-01-05MINUTE ORDER: Upon consideration of the parties' Joint Status Report 9 , it is hereby ORDERED that Plaintiff's Unopposed Motion for Leave to File a First Amended Complaint 8 be GRANTED and that the First Amended Complaint attached thereto be DEEMED FILED. It is FURTHER ORDERED that the pending Partial Motion to Dismiss 5 be DENIED WITHOUT PREJUDICE AS MOOT in light of the First Amended Complaint. It is FURTHER ORDERED that Defendant shall respond to the First Amended Complaint on or before January 19, 2017. For this purpose, Defendant may refile some or all of its initial motion to dismiss, but should update the citations therein to reflect the paragraph numbering of the First Amended Complaint. To the extent Defendant wishes to address the paragraphs newly added in the First Amended Complaint, Defendant shall do so in a forthcoming motion to dismiss, rather than a reply. Signed by Judge Randolph D. Moss on 1/5/2017. (lcrdm3, ) (Entered: 01/05/2017)
2017-01-06Set/Reset Deadlines: Defendant shall respond to the First Amended Complaint on or before 1/19/2017. (kt) (Entered: 01/06/2017)
2017-01-0610FIRST AMENDED COMPLAINT against CENTRAL INTELLIGENCE AGENCY filed by MARK STOUT, JEFFREY SCUDDER, HUGH WILFORD, KEN OSGOOD.(jf) (Entered: 01/06/2017)
2017-01-1811MOTION to Dismiss Count II by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Text of Proposed Order)(Motgi, Anjali) (Entered: 01/18/2017)
2017-02-0112Memorandum in opposition to re 11 MOTION to Dismiss Count II filed by KEN OSGOOD, JEFFREY SCUDDER, MARK STOUT, HUGH WILFORD. (Attachments: # 1 Exhibit 1 - Lutz Declaration, # 2 Text of Proposed Order)(Moss, Bradley) (Entered: 02/01/2017)
2017-02-0313Unopposed MOTION for Extension of Time to File Response/Reply in Support of Partial Motion to Dismiss by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Text of Proposed Order)(Motgi, Anjali) (Entered: 02/03/2017)
2017-02-03MINUTE ORDER: Upon consideration of Defendant's Unopposed Motion for Extension of Time to File a Reply in Support of its Partial Motion to Dismiss 13 , the motion is hereby GRANTED. It is ORDERED that Defendant shall file any reply on or before February 15, 2017. Signed by Judge Randolph D. Moss on 2/3/2017. (lcrdm3, ) (Entered: 02/03/2017)
2017-02-03Set/Reset Deadlines: Defendant shall file any reply on or before 2/15/2017. (kt) (Entered: 02/03/2017)
2017-02-1514REPLY to opposition to motion re 11 MOTION to Dismiss Count II filed by CENTRAL INTELLIGENCE AGENCY. (Motgi, Anjali) (Entered: 02/15/2017)
2017-11-01Case directly reassigned to Judge Trevor N. McFadden. Judge Randolph D. Moss is no longer assigned to the case. (ztnr) (Entered: 11/01/2017)
2017-12-1315ORDER. The Defendant's 11 Partial Motion to Dismiss is GRANTED. See Order for further details. It is further ORDERED that the parties shall appear for a status hearing on January 3, 2018 at 10:00 AM in Courtroom 2, before Judge Trevor N. McFadden. Signed by Judge Trevor N. McFadden on 12/13/2017. (lctnm3) (Entered: 12/13/2017)
2017-12-1316MEMORANDUM OPINION re 15 Order on Defendant's Partial Motion to Dismiss. Signed by Judge Trevor N. McFadden on 12/13/2017. (lctnm3) (Entered: 12/13/2017)
2017-12-13Set/Reset Hearings: Status Conference scheduled for 1/3/2018, at 10:00 AM in Courtroom 2, before Judge Trevor N. McFadden. (hmc) (Entered: 12/13/2017)
2018-01-03Minute Entry for proceedings held before Judge Trevor N. McFadden: Status Conference held on 1/3/2018. Order forthcoming. (Court Reporter: Patricia Kaneshiro-Miller.) (hmc) (Entered: 01/03/2018)
2018-01-03MINUTE ORDER. As stated during the status conference held on January 3, 2018, the parties are ORDERED to file a Joint Status Report every 90 days advising the Court on the progress of the Defendant's productions to Plaintiff. The next Joint Status Report shall be due on or before April 3, 2018. The parties shall continue to file Joint Status Reports every 90 days thereafter until otherwise ordered by the Court. SO ORDERED. Signed by Judge Trevor N. McFadden on 1/3/2018. (lctnm3) (Entered: 01/03/2018)
2018-01-03Set/Reset Deadlines: Joint Status Report due by 4/3/2018. (hmc) (Entered: 01/03/2018)
2018-04-0317Joint STATUS REPORT by CENTRAL INTELLIGENCE AGENCY. (Motgi, Anjali) (Entered: 04/03/2018)
2018-04-2318STANDING ORDER Establishing Procedures for Cases Before Judge Trevor N. McFadden. The parties are hereby ORDERED to read and comply with the directives in the attached standing order. Courtesy copies are excused for all filings predating the entry of this Standing Order. Signed by Judge Trevor N. McFadden on 4/20/2018. (lctnm3) (Entered: 04/23/2018)
2018-07-05MINUTE ORDER TO SHOW CAUSE. The Court's Minute Order dated January 3, 2018 ordered the parties to file Joint Status Reports every 90 days from April 3, 2018. The parties' latest Joint Status Report was therefore due on July 2, 2018. It is hereby ORDERED that the parties shall, by July 10, 2018, show cause for the missed deadline. It is further ORDERED that the parties shall, by July 10, 2018, file a Joint Status Report. Signed by Judge Trevor N. McFadden on 7/5/2018. (lctnm3) (Entered: 07/05/2018)
2018-07-06Set/Reset Deadlines: Response to Show Cause due by 7/10/2018; Joint Status Report due by 7/10/2018. (tg) (Entered: 07/06/2018)
2018-07-1019Joint STATUS REPORT by CENTRAL INTELLIGENCE AGENCY. (Motgi, Anjali) (Entered: 07/10/2018)
2018-07-10MINUTE ORDER. Upon consideration of the parties' 19 Joint Status Report, it is hereby ORDERED that the parties shall continue to submit joint status reports every 90 days until Defendant completes its response to Plaintiff's FOIA request. The next joint status report shall be due on October 8, 2018. It is further ORDERED that the parties shall, within fourteen days of Defendant's final production of documents, submit a joint status report for further proceedings, including, as necessary, a briefing schedule for dispositive motions. SO ORDERED. Signed by Judge Trevor N. McFadden on 7/10/2018. (lctnm3) (Entered: 07/10/2018)
2018-07-11Set/Reset Deadlines: Joint Status Report due by 10/8/2018, and every 90 days thereafter. (hmc) (Entered: 07/11/2018)
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by FOIA Project Staff