Case Detail

FOIA Project Annotation: A federal court in New York has ruled that the FBI properly responded to a FOIA request from Leslie James Pickering, co-owner of the Burning Books bookstore in Buffalo, for records concerning the conviction of Leonard Peltier, who was convicted of the 1975 murder of two FBI agents on the Pine Ridge Reservation in South Dakota. Pickering's request was in part prompted by the 2002 revelation that the FBI was destroying certain records pertaining to Peltier. Pickering's attorney, Michael Kuzma, requested that the National Archives and Records Administration take possession of the FBI's Peltier records and NARA subsequently instructed the FBI to provide Peltier's records for permanent preservation. In response to Pickering's FOIA request, the FBI located 6,020 records. After narrowing his request, the parties settled on a review of 5,253 pages of responsive records. The parties agreed that the FBI could randomly select 500 processed pages and provide its justifications for exemption claims. Of those 500 pages, 342 pages were released in part and 158 pages were withheld in full. Magistrate Judge Leslie Foschio found that the FBI's search was adequate. Indicating that the FBI's affidavit was comprehensive and thorough, she noted that "significantly, the FBI is not required to search all records systems proposed by a requesting party, including those specified by Plaintiff in his FOIA Request." She added that "nor has Plaintiff provided any information upon which [the FBI's FOIA unit] could reasonably conclude records, including records pertaining to Peltier or Judge Heaney, would reside outside the [Central Records System] and the information found from the CRS search did not indicate any additional records would be located in the other systems Plaintiff identified." Foschio accepted the agency's claims under Exemption 5 (privileges), noting that Pickering had failed to rebut the agency's allegations that records were protected by the attorney work product privilege. She noted that "Plaintiff, by limiting his responses in opposition to summary judgement to the criteria for the attorney-client privilege, provides no basis for challenging Defendant's explanation for withholding the information pursuant to Exemption 5 as attorney work-product."
Issues: Search - Reasonableness of search

Date Filed	Doc #	Docket Text
2019-01-01	1	COMPLAINT against U.S. Department of Justice $ 400 receipt number 0209-3319033, filed by Leslie James Pickering.(Kuzma, Michael) Modified on 1/2/2019 to correct party, complaint will be refiled for statistical purposes only (SG). (Entered: 01/01/2019)
2019-01-02		E-Filing Notification: 1 COMPLAINT will be refiled for statistical purposes only. (SG) (Entered: 01/02/2019)
2019-01-02	2	COMPLAINT against U. S. Department of Justice, filed by Leslie James Pickering.(Kuzma, Michael) (Entered: 01/02/2019)
2019-01-02		E-Filing Notification regarding 2 COMPLAINT; Attorney is directed to file a completed Civil Cover Sheet pursuant to LR 3. No judge assignment will be made until filing is entered on the docket. Please utilize the Continuation of Exhibits event located within the Responses and Replies category. (NRE) (Entered: 01/02/2019)
2019-01-03	3	CONTINUATION OF EXHIBITS by Leslie James Pickering. to 2 Complaint Civil Cover Sheet filed by Leslie James Pickering. (Kuzma, Michael) (Entered: 01/03/2019)
2019-01-04		Case Assigned to Hon. Richard J. Arcara. Notification to Chambers of on-line civil case opening. (NRE) (Entered: 01/04/2019)
2019-01-04		AUTOMATIC REFERRAL to Mediation The ADR Plan is available for download at http://www.nywd.uscourts.gov/alternative-dispute-resolution(NRE) (Entered: 01/04/2019)
2019-01-04		Notice of Availability of Magistrate Judge: A United States Magistrate of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form (AO-85) is available for download at http://www.uscourts.gov/services-forms/forms. (NRE) (Entered: 01/04/2019)
2019-03-04	4	Original Summons Filed. (Kuzma, Michael) (Entered: 03/04/2019)
2019-03-05	5	Summons Issued as to U. S. Department of Justice. (NRE) (Entered: 03/05/2019)
2019-03-18	6	AFFIDAVIT of Service for Summons and Complaint served on Mark Witzleben on March 11, 2019, filed by Leslie James Pickering. (Kuzma, Michael) (Entered: 03/18/2019)
2019-04-11	7	ANSWER to Complaint by U. S. Department of Justice.(Cerrone, Michael) (Entered: 04/11/2019)
2019-04-12		ADR Plan electronically forwarded to attorneys. The ADR Plan is available for download at http://www.nywd.uscourts.gov/alternative-dispute-resolution.(NRE) (Entered: 04/12/2019)
2019-04-12	8	TEXT ORDER REFERRING CASE to Magistrate Judge Hon. Leslie G. Foschio. The Magistrate Judge is hereby designated to act in this case as follows: Pursuant to 28 U.S.C. Section 636(b)(1)(A) and (B), all pre-trial matters in this case are referred to the above-named United States Magistrate Judge, including but not limited to: (1) conduct of a scheduling conference and entry of a scheduling order pursuant to Fed. R. Civ. P. 16, (2) hearing and disposition of all non-dispositive motions or applications, (3) supervision of discovery, and (4) supervision of all procedural matters involving the aforementioned or involving the preparation of the case or any matter therein for consideration by the District Judge. The Magistrate Judge shall also hear and report upon dispositive motions for the consideration of the District Judge pursuant to 28 U.S.C. Section 636(b)(1)(B) and (C). All motions or applications shall be filed with the Clerk and made returnable before the Magistrate Judge. The parties are encouraged to consider the provisions of 28 U.S.C. Section 636(c) governing consent to either partial or complete disposition of the case, including trial if necessary, by the Magistrate Judge. Consent forms are available from the office of the Magistrate Judge or the office of the Clerk of Court. IT IS SO ORDERED. Issued by Hon. Richard J. Arcara on 4/12/2019. (LAS) (Entered: 04/12/2019)
2019-04-22	9	ORDER. Scheduling Conference set for 5/30/2019 11:00 AM before Hon. Leslie G. Foschio. Signed by Hon. Leslie G. Foschio on 4/22/2019. (SDW) (Entered: 04/22/2019)
2019-05-21	10	MOTION to Adjourn Rule 16 conference by U. S. Department of Justice. (Attachments: # 1 Declaration)(Cerrone, Michael) (Entered: 05/21/2019)
2019-05-21	11	TEXT ORDER granting 10 Motion to Adjourn. Scheduling Conference adjourned to 6/25/2019 at 3:30 p.m. Issued by Hon. Leslie G. Foschio on 5/21/2019. (SDW) (Entered: 05/21/2019)
2019-05-21		Set/Reset Hearings: Scheduling Conference set for 6/25/2019 03:30 PM before Hon. Leslie G. Foschio. (SDW) (Entered: 05/21/2019)
2019-06-07	12	MOTION to Adjourn Rule 16 Conference by U. S. Department of Justice.(Cerrone, Michael) (Entered: 06/07/2019)
2019-06-07	13	DECLARATION signed by Michael S. Cerrone re 12 MOTION to Adjourn Rule 16 Conference filed by U. S. Department of Justice . (Cerrone, Michael) (Entered: 06/07/2019)
2019-06-10	14	TEXT ORDER granting 12 Motion to Adjourn of Scheduling Conference. Scheduling Conference scheduled for 6/25/2019 adjourned to 7/30/2019 at 11:00 a.m. Issued by Hon. Leslie G. Foschio on 6/10/2019. (SDW) (Entered: 06/10/2019)
2019-06-10		Set/Reset Hearings: Scheduling Conference set for 7/30/2019 11:00 AM before Hon. Leslie G. Foschio, adjourned from 6/25/2019 at Deft's request with consent by Plaintiff. (SDW) (Entered: 06/10/2019)
2019-07-30	16	Minute Entry for proceedings held before Hon. Leslie G. Foschio: Scheduling Conference held on 7/30/2019. Case management order discussed, same to be filed by the court. Appearances: Pltf: Michael Kuzman, Esq. w/ Plaintiff, Dft: AUSA Michael Cerrone. (Court Reporter FTR Gold.) (SDW) (Entered: 07/30/2019)
2019-07-31	17	SCHEDULING ORDER (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.) Motions to Join Parties/Amend Pleadings due by 9/30/2019. Defendant shall release non-exempt documents by 11/30/2020. Plaintiff shall identify challenges by 12/15/2020. Defendant Vaughn filing due 2/28/2021. Dispositive Motions due by 2/28/2021. Signed by Hon. Leslie G. Foschio on 7/31/2019. (SDW) (Entered: 07/31/2019)
2019-08-16	18	CONSENT to Jurisdiction by US Magistrate Judge. Case reassigned to Magistrate Hon. Leslie G. Foschio. (KM) (Entered: 08/16/2019)
2020-12-14	19	AFFIDAVIT of Michael Kuzma by Leslie James Pickering. (Kuzma, Michael) (Entered: 12/14/2020)
2021-02-04	20	MOTION for Extension of Time to Complete Discovery by U. S. Department of Justice.(Cerrone, Michael) (Entered: 02/04/2021)
2021-02-04	21	TEXT ORDER granting 20 Motion for Extension of Time to Complete Discovery. First Amended Scheduling Order to be filed separately. Issued by Hon. Leslie G. Foschio on 2/4/2021. (SDW) (Entered: 02/04/2021)
2021-02-04	22	FIRST AMENDED SCHEDULING ORDER (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.) Vaughn filing by 4/30/2021. Dispositive Motions due by 4/30/2021.. Signed by Hon. Leslie G. Foschio on 2/4/2021. (SDW) (Entered: 02/04/2021)
2021-04-30	23	MOTION for Summary Judgment by U. S. Department of Justice. (Attachments: # 1 Declaration of Michael Seidel, # 2 Statement of Undisputed Facts, # 3 Memorandum in Support)(Cerrone, Michael) (Entered: 04/30/2021)
2021-05-03	24	TEXT ORDER re 23 MOTION for Summary Judgment filed by U. S. Department of Justice. Responses due by 6/2/2021. Replies due by 6/17/2021. Oral argument at the discretion of the court. Issued by Hon. Leslie G. Foschio on 5/3/2021. (SDW) (Entered: 05/03/2021)
2021-06-02	25	MEMORANDUM in Opposition re 23 MOTION for Summary Judgment filed by Leslie James Pickering. (Attachments: # 1 Affidavit Michael Kuzma, # 2 Statement of Undisputed Facts)(Kuzma, Michael) (Entered: 06/02/2021)
2021-06-08	26	MOTION for Extension of Time to File Response/Reply (to file Reply Brief in Further Support of Defendant's Motion for Summary Judgment by U. S. Department of Justice.(Cerrone, Michael) (Entered: 06/08/2021)
2021-06-08	27	TEXT ORDER granting 26 Motion for Extension of Time to File Response/Reply re 23 MOTION for Summary Judgment. Defendant's Reply Brief due by 8/13/2021. Issued by Hon. Leslie G. Foschio on 6/8/2021. (SDW) (Entered: 06/08/2021)
2021-08-13	28	REPLY/RESPONSE to re 25 Memorandum in Opposition to Motion (Defendant's Reply Memorandum of Law) filed by U. S. Department of Justice. (Attachments: # 1 Declaration of Michael G. Seidel)(Cerrone, Michael) (Entered: 08/13/2021)
2021-12-07	29	DECISION and ORDER granting 23 Defendant's Motion for Summary Judgment. The Clerk of Court is directed to close the file. SO ORDERED. Signed by Hon. Leslie G. Foschio on 12/7/2021. (TAH) -CLERK TO FOLLOW UP- (Entered: 12/07/2021)
2021-12-08	30	JUDGMENT in favor of U. S. Department of Justice against Leslie James Pickering. Signed by Mary C. Loewenguth, Clerk of Court on 12/8/2021. (CGJ) (Entered: 12/08/2021)
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