Free Case Management Statement - District Court of California - California

Case 3:07-cv-04997-MHP

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Filed 07/28/2008

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SCOTT N. SCHOOLS (SCSBN 9990) United States Attorney JOANN M. SWANSON (CSBN 88143) Chief, Civil Division MICHAEL T. PYLE (CSBN 172954) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7322 FAX: (415) 436-6748 Attorneys for Defendant Office of Management and Budget Deborah A. Sivas (CSBN 135446) Leah J. Russin (CSBN 225336) ENVIRONMENTAL LAW CLINIC MILLS LEGAL CLINIC Stanford Law School Crown Quadrangle 559 Nathan Abbot Way Stanford, CA 94305-8610 Telephone: (650) 723-0325 Facsimile: (650) 723-4426 Justin Augustine (CSBN 235561) CENTER FOR BIOLOGICAL DIVERSITY 351 California Street, Suite 600 San Francisco, CA 94104 Phone: (415) 436-9682 Facsimile: (415) 436-9683 Attorneys for Plaintiff Center for Biological Diversity UNITED STATES DISTRICT COURT

19 NORTHERN DISTRICT OF CALIFORNIA 20 SAN FRANCISCO DIVISION 21 22 23 Plaintiff, 24 v. 25 26 27 28
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CENTER FOR BIOLOGICAL DIVERSITY, a non-profit organization,

THE OFFICE OF MANAGEMENT AND BUDGET, Defendant.

) ) ) ) ) ) ) ) ) ) )

No. C 07-4997 MHP

JOINT SUBSEQUENT CASE MANAGEMENT CONFERENCE STATEMENT Date: August 4, 2008 Time: 3:00 p.m.

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Plaintiff, the Center for Biological Diversity ("CBD"), and defendant, the Office of Management and Budget ("OMB"), by and through their undersigned counsel, hereby submit the following Joint Subsequent Case Management Conference Statement pursuant to Civil Local Rule 16-10(d): 1. Overview of events since last CMC: The last Case Management Conference was held on

April 21, 2008. Thereafter, the Center and OMB stipulated to a schedule, approved by the Court, for OMB to produce responsive documents and Vaughn indices for documents from the time period of September 1, 2003 through June 30, 2004. OMB completed that production by the deadline. 2. Related Cases: Plaintiff CBD: CBD asserts that there are no related cases as the issue has already been determined, and thus events in other matters is not relevant. Defendant OMB: OMB filed an Administrative motion to relate this case to People of the State of California v. EPA et al., Case No. 07-2055 JSW, which motion was denied by the Court. OMB respectfully notes for the Court that it has produced a Vaughn index in the State of California action regarding documents withheld by OMB on various grounds and that would appear to fall within the scope of CBD's FOIA request at issue in this case. Motions for summary judgment are pending before Judge White with regard to the documents listed on OMB's Vaughn index. OMB further respectfully notes for the Court that it prevailed in substantial part in a case brought by the State of California involving the Proposed Rule (70 Fed Reg. 51414-51466) for fuel emission standards for light trucks. Judgement was entered in that case on June 13, 2007 following cross-motions for summary judgment. That case is People of the State of California v. OMB et al., 06-2654 SC. OMB respectfully submits that Judge Conti has already ruled on the propriety of OMB's withholding of certain documents regarding the Proposed Rule. In neither of these cases was there a dispute about a fee waiver. The reason OMB submits that these cases are related to the present case is that in these two related cases courts have ruled (Action 06-02654 SC) or will rule (Action 07-2055 JSW) about the propriety of
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withholding some of the documents at issue in CBD's FOIA request. 3. Settlement and ADR: The parties filed a Notice of Need for ADR Phone Conference and

held a telephone conference with the Court's ADR office on January 4, 2008. At this time the parties do not believe that any ADR process would be appropriate.

5 4. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant OMB: OMB proposes to complete the remainder of its production and to produce a complete Vaughn index by December 31, 2008 and further proposes to make interim productions on August 29, 2008, September 30, 2008, October 31, 2008, November 28, 2008 so that CBD would have documents and Vaughn indices to review while OMB is working to complete its production. The schedule that OMB is proposing is an aggressive one. OMB will have to review approximately 100 gigabytes of information (an amount of information that would fill approximately 150 CDs). OMB's review will require a detailed document by document, line by line, review of the documents in question to determine which documents are
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Scheduling: Plaintiff CBD: CBD proposes that the Court order OMB to complete its Vaughn index by

August 15, 2008. CBD notes that they have already provided OMB extra time beyond the Court's initial Order (i.e. OMB was to originally complete its Vaughn index by July 14, 2008). The August 15 deadline is a full month extra, and CBD sees no reason, given the extensive delay OMB has already caused (the FOIA was sent to OMB on August 29, 2006), that more time should be allowed. Moreover, time is of the essence because comments are due August 18, 2008, regarding the "Draft Environmental Impact Statement (DEIS) for New Corporate Average Fuel Economy Standards." See 73 Fed. Reg. 37922, 37923 ("NHTSA must receive written comments on the DEIS by Monday, August 18, 2008"). The documents at issue in this case are highly relevant to the new DEIS, and it would make little sense for documents from 2006 to be unavailable for use in 2008. CBD proposes that the Court set a status conference for September 8, 2008. CBD anticipates that the Court would set a schedule for motions for summary judgment at that time.

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responsive and then determine which documents (or portions) are subject to release. OMB will have to prepare entries for the Vaughn index for documents (or portions) that OMB withholds from release.

4 OMB proposes that the Court set a status conference for January 2009. OMB anticipates 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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that the Court would set a schedule for motions for summary judgment at that time. 5. Trial: The parties believe that this case will be resolved by means of summary judgment

motions following OMB's production of any responsive documents and its Vaughn index. Dated: July 28, 2008 Respectfully submitted, JOSEPH P. RUSSONIELLO United States Attorney By: /s/ MICHAEL T. PYLE Assistant United States Attorney Attorney for Defendant OMB By: _______/s/_________

DEBORAH A. SIVAS Attorneys for Plaintiff Center for Biological Diversity

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