Richard Convertino v. DOJ ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 12, 2012 Decided June 22, 2012
No. 11-5133
RICHARD G. CONVERTINO,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE
AND JONATHAN TUKEL,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cv-00236)
Stephen M. Kohn argued the cause for the appellant.
David K. Colapinto entered an appearance.
Samantha L. Chaifetz, Attorney, United States
Department of Justice, argued the cause for the appellees.
Tony West, Assistant Attorney General, Ronald C. Machen
Jr., United States Attorney, Beth S. Brinkmann, Deputy
Assistant Attorney General, and Mark B. Stern, Attorney,
were on brief. R. Craig Lawrence, Assistant United States
Attorney, entered an appearance.
Before: HENDERSON, ROGERS and TATEL, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Richard
Convertino (Convertino) appeals the district court’s order
granting summary judgment to the United States Department
of Justice (DOJ) and denying Convertino’s cross-motion to
stay the court’s summary judgment ruling to allow for further
discovery under Rule 56(f) of the Federal Rules of Civil
Procedure (FRCP).1 As we explain below, we reverse and
remand the district court’s summary judgment.
I.
Six days after the September 11, 2001 terrorist attacks,
members of the Detroit Joint Terrorism Task Force2 wanted to
interview Nabil Al-Marabh, whose name was included on the
Federal Bureau of Investigation (FBI) suspected terrorist
“watch list.” Their investigation took them to a location they
thought was Al-Marabh’s residence but, instead of Al-
Marabh, the Task Force found three other men—Ahmed
Hannan, Farouk Ali-Haimoud and Karim Koubriti—living in
the apartment “as apparent transients with little or no
furniture.” Convertino v. U.S. Dep’t of Justice, 769 F. Supp.
2d 139, 141 (D.D.C. 2011) (quotation marks omitted).3 A
1
In 2010, Rule 56(f) became Rule 56(d) of the FRCP.
Following the parties’ briefs and the district court opinion, we refer
to former Rule 56(f).
2
The Task Force included, inter alia, members of the FBI, the
U.S. Bureau of Alcohol, Tobacco and Firearms, the U.S.
Immigration and Naturalization Service, the U.S. Drug
Enforcement Administration, the U.S. Internal Revenue Service and
the U.S. Customs Service. See United States v. Koubriti, 199 F.
Supp. 2d 656, 659 n.3 (E.D. Mich. 2002).
3
The undisputed facts are set forth primarily in the district
court’s order on appeal. See Convertino, 769 F. Supp. 2d at 141-44.
3
subsequent search revealed false identity documents for all
three men. The men were arrested and charged with
possession of false documents in violation of 18 U.S.C.
§§ 1028(a)(4), 1546 and 371. Assistant United States
Attorney Convertino was named to lead the prosecution.
While the case began as a fraudulent documents
prosecution, it quickly escalated into a highly-publicized
terrorism trial—the first since the September 11 attacks.
Convertino became convinced that Hannan, Ali-Haimoud and
Koubriti—plus a fourth man, Abdel Ilah El Mardoudi—were
members of a “sleeper cell” of an international Islamic
terrorist organization. He filed superseding indictments
adding El Mardoudi as a codefendant and charging each
defendant with one count of conspiracy to provide “material
support or resources” to “terrorists” in violation of 18 U.S.C.
§§ 2339A and 371 and one count of conspiracy to commit
document fraud in violation of 18 U.S.C. §§ 1028(f), 1546
and 371. In June 2003, after a trial lasting three months, the
jury convicted three of the four Detroit Sleeper Cell
defendants of at least one count.4
Convertino’s successful prosecution was short-lived. In
the fall of 2003, the United States Attorney for the Eastern
District of Michigan removed Convertino from the case
(while the defendants’ sentencing was pending) for alleged
ethical violations committed during the prosecution. Soon
thereafter, the three convicted defendants moved for a new
trial on the ground that they had been denied due process by
the prosecution’s withholding of evidence that should have
4
Koubriti and El Mardoudi were convicted of the two
conspiracy counts. See Koubriti v. Convertino, 593 F.3d 459, 463
n.7 (6th Cir. 2010). Hannan was convicted of document fraud only.
Id. Ali-Haimoud was acquitted of all charges. Id.
4
been disclosed under Brady v. Maryland, 373 U.S. 83 (1963),5
and Giglio v. United States, 405 U.S. 150 (1972).6 A
subsequent court-ordered investigation “disclosed numerous
additional documents that had not previously been submitted
or shown to . . . the . . . defendants.” Koubriti, 593 F.3d at
463. Eventually, in September 2004, the trial court vacated
the defendants’ convictions and granted a new trial on the
document fraud counts. See United States v. Koubriti, 336 F.
Supp. 2d 676 (E.D. Mich. 2004).
In the meantime, Convertino’s alleged prosecutorial
misconduct led to his referral to DOJ’s Office of Professional
Responsibility (OPR), which began an internal investigation
into whether Convertino knowingly withheld evidence from
the defense. News of Convertino’s OPR referral eventually
found its way into the hands of a reporter who, on January 17,
2004, published a front-page article in the Detroit Free Press
(Free Press) entitled Terror Case Prosecutor is Probed on
Conduct. David Ashenfelter, Terror Case Prosecutor is
Probed on Conduct, DETROIT FREE PRESS, Jan. 17, 2004, at
A1. The article included details of the OPR referral, which
details it traced to “Department officials” “who spoke on
condition of anonymity, fearing repercussions.” Id.7 DOJ’s
Office of Inspector General (OIG) subsequently began an
investigation into the source of the leaked information. See
5
In Brady, the United States Supreme Court held that due
process requires a prosecutor to disclose all evidence “favorable to
[the] accused” and “material either to guilt or to punishment.” 373
U.S. at 87.
6
In Giglio, the Court held that the prosecution’s Brady
obligation includes impeachment evidence. 405 U.S. at 154.
7
The reporter later confirmed that his source was an unnamed
DOJ employee. Ashenfelter Decl. at 1, Convertino, No. 07-cv-
13842 (E.D. Mich. Mar. 26, 2008).
5
Convertino, 769 F. Supp. 2d at 142. Ultimately, however, the
OIG was unable to pinpoint the leak. Id.8
On February 14, 2004, Convertino brought suit in the
district court here, alleging that an unidentified DOJ
employee willfully or intentionally disclosed “confidential
Privacy Act-protected information” to the reporter. Complaint
at 33, Convertino, No. 1:04-cv-00236 (D.D.C. Feb. 13,
2004).9 Discovery commenced in the spring of 2006 and was
both slow and litigious. On April 30, 2007 and May 2, 2007,
Convertino obtained subpoenas duces tecum from the United
States District Court for the Eastern District of Michigan
(Eastern District) and served them on both the Free Press
reporter and the Free Press. See Convertino, No. 2:07-cv-
13842, 2007 WL 2782039, at *1 (E.D. Mich. Sept. 24, 2007).
The subpoenas required “[the reporter] to appear for [a]
deposition concerning the identity of the source(s) for the
Free Press Article, and to produce any and all related
documents in his possession or control, and commanded the
Free Press to designate a corporate representative to do the
8
The OIG focused its investigation on “approximately [thirty]
DOJ employees” who, it believed, had access to the confidential
material referenced in the newspaper article. Convertino, 769 F.
Supp. 2d at 142 (quotation marks and citation omitted).
9
Convertino’s complaint included claims against the Attorney
General and various individual DOJ employees, alleging violations
of the Privacy Act, 5 U.S.C. §§ 552a et seq., the First Amendment,
the Administrative Procedure Act, 5 U.S.C. §§ 704 et seq., and the
Lloyd-LaFollette Act, 5 U.S.C. § 7211. See generally Complaint,
Convertino, No. 1:04-cv-00236 (D.D.C. Feb. 14, 2004). In October
2005, the district court dismissed all of Convertino’s claims except
his Privacy Act claim against DOJ, see Convertino v. U.S. Dep't of
Justice, 393 F. Supp. 2d 42 (D.D.C. 2005), which is the only claim
before us.
6
same.” Id. (quotation marks omitted). Neither party complied.
Convertino then moved in the Eastern District to compel their
compliance. See Plaintiff’s Mot. to Compel Ashenfelter and
the Free Press, Convertino, No. 2:07-cv-13842 (E.D. Mich.
July 6, 2007).
On August 28, 2008, the Eastern District granted
Convertino’s motion to compel discovery from the reporter,
noting that identification of the reporter’s source was vital to
Convertino’s Privacy Act claim. See Convertino, No. 2:07-cv-
13842, 2008 WL 4104347, at *7 (E.D. Mich. Aug. 28, 2008)
(“As Convertino’s claim depends on his ability to question
[the reporter’s] sources, their identifies [sic] are undoubtedly
relevant . . . .”). The court denied his motion to compel the
Free Press, however, on the ground that discovery from it
would be “duplicative.” Id. at *9, 10 (“Convertino’s best
chance of learning the identity of Ashenfelter’s sources is
deposing Ashenfelter himself, and [] an additional subpoena
of the Free Press is unlikely to produce more information than
that uncovered in a deposition of Ashenfelter . . . .”). Its
denial was without prejudice and, importantly, it noted that it
might reconsider its decision if, for example, the reporter was
unable to comply with the court’s order. Id. at *10 n.17
(“Contingent upon, for example, evidence of non-compliance
with this order through impossibility, it may be appropriate to
revisit the court’s analysis as to the discovery obligations of
the Free Press.”).
On December 8, 2008, the reporter attended his
deposition but, invoking his Fifth Amendment privilege
against self-incrimination, refused to answer substantive
questions. Convertino, 769 F. Supp. 2d at 143. Convertino
promptly applied for a contempt of court citation and
sanctions in the Eastern District. Id. at 144. That court denied
the motions but ordered the reporter to appear at a second
deposition to be held at the federal courthouse in Detroit. Id.
7
There, the reporter once again invoked his Fifth Amendment
privilege and refused to answer questions regarding his
source. Id. The Eastern District then conducted an ex parte, in
camera hearing with the reporter and his counsel, ultimately
upholding his Fifth Amendment privilege. Id. Convertino
moved for reconsideration on the “ground[] that [the reporter]
waived any Fifth Amendment privilege he had as to the
identity of his source(s).” Supplemental Br. in Supp. of Arg.
that Ashenfelter Waived Any Fifth Amend. Privilege at 1,
Convertino, No. 2:07-cv-13842 (E.D. Mich. May 5, 2009).
The Eastern District denied that motion. Op. and Order
Denying Plaintiff’s Mot. for Recon., Convertino, No. 2:07-cv-
13842 (E.D. Mich. Feb. 9, 2010). At the same time,
Convertino renewed his motion to compel the Free Press,
Pl.’s Renewed Mot. to Compel Produc. from the Free Press,
Convertino, No. 2:07-cv-13842 (E.D. Mich. Apr. 29, 2009).10
The latter motion remains pending in the Eastern District,
where the discovery proceedings are being held in abeyance
pending this appeal. See Order Holding Proceedings in
Abeyance, Convertino, No. 2:07-cv-13842 (E.D. Mich. Apr.
15, 2011).
As the discovery dispute progressed in the Eastern
District, Convertino pressed his Privacy Act claim in the
district court here. After numerous discovery disputes and
extensions, the district court established July 12, 2010 as the
deadline for DOJ’s motion for summary judgment. See Order
at 2, Convertino, No. 1:04-cv-00236 (D.D.C. Dec. 7, 2009).11
10
Convertino also asked DOJ to grant the reporter immunity
“from any potential prosecution related to the OPR leak or the
January 17, 2004 article” but received no response. Kohn Aff. at 4.
11
The district court ordered that “Defendant’s motion for
summary judgment shall be filed by the latter of July 12, 2010, or
60 days after the Court’s ruling on Plaintiff’s pending motion to
compel production of documents.” See Order at 2, Convertino, No.
8
When the July 12, 2010 deadline arrived and Convertino had
yet to discover the source of the DOJ leak, DOJ moved for
summary judgment. Def.’s Mot. for Summ. J., Convertino,
No. 1:04-cv-00236 (D.D.C. July 12, 2010). DOJ argued that
Convertino could not establish a prima facie violation of the
Privacy Act because, without knowing the source’s identity,
he could not establish the source’s state of mind. Mem. in
Supp. of Def.’s Mot. for Summ. J. at 47, Convertino, No.
1:04-cv-00236 (D.D.C. July 12, 2010) (“To establish the
requisite intent, Convertino must introduce evidence
concerning the state of mind of the particular individual(s)
who actually disclosed the information . . . .”). Convertino
cross-moved for a stay under Rule 56(f) on the ground that he
was pursuing discovery to learn the source’s identity from the
Free Press in the Eastern District. Mot. for Stay to Depose
Key Witnesses, Convertino, No. 1:04-cv-00236 (D.D.C. Oct.
18, 2010). He stated that he “fully intends to appeal the
Eastern District[’s] [] ruling on the 5th Amendment issue” in
the event his motion to compel the Free Press was finally
denied. Pl.’s Mem. in Supp. of Mot. for Stay at 4, Convertino,
No. 1:04-cv-00236 (D.D.C. Oct. 18, 2010).
On March 24, 2011, the district court granted summary
judgment to DOJ and denied Convertino’s Rule 56(f) motion
to stay. Convertino, 769 F. Supp. 2d at 156. The court
concluded that, although Convertino’s motion to compel the
Free Press “is still pending in the Eastern District,” a stay
“would likely be futile” as Convertino had been “wholly
unsuccessful” in identifying the reporter’s source for “several
years.” Id. at 155-56. The court was “unwilling to prolong this
litigation further” on “Convertino’s speculative hope that
1:04-cv-00236 (D.D.C. Dec. 7, 2009). Three days later, the court
denied Convertino’s motion to compel production. See Order,
Convertino, No. 1:04-cv-00236 (D.D.C. Dec. 10, 2009).
9
things will suddenly go his way in Michigan.” Id. at 156. The
court then assured Convertino that, “if the Eastern District . . .
compels discovery and Convertino is in fact able to obtain the
information he seeks, he is free to move for reconsideration in
light of newly discovered evidence.” Id.
Convertino timely appealed.
II.
It is undisputed that Convertino currently lacks the
evidence necessary to survive summary judgment on his
Privacy Act claim. “To state a claim for relief [under the
Privacy Act], a plaintiff must establish that (1) the agency
violated a provision of the [] Act, (2) the violation was
intentional or willful, 5 U.S.C. § 552a(g)(4), and (3) the
violation had an adverse effect on the plaintiff, 5 U.S.C.
§ 552a(g)(1)(D).” Paige v. Drug Enforcement Admin., 665
F.3d 1355, 1358-1359 (D.C. Cir. 2012) (internal quotation
marks omitted). Because Convertino does not know the
identity of the individual(s) who disclosed information
regarding the OPR referral, he cannot show that the disclosure
was “intentional or willful.” See Maydak v. United States, 630
F.3d 166, 169 (D.C. Cir. 2010) (to recover on Privacy Act
claim plaintiff must “show ‘that the agency acted in a manner
which was intentional or willful’ ” (quoting 5 U.S.C.
§ 552a(g)(4))). Sifting through the multiple issues in
Convertino’s pursuit of his claims, we decide today only
whether the district court erred in denying Convertino’s Rule
56(f) motion to stay.12
12
Rule 56(f) provides:
If a party opposing the motion shows by affidavit that, for
specified reasons, it cannot present facts essential to justify
its opposition, the court may:
(1) deny the motion;
10
“[W]e review the denial of a Rule 56(f) motion for abuse
of discretion . . . .” Chappell-Johnson v. Powell, 440 F.3d
484, 487 (D.C. Cir. 2006). While the district court enjoys
“broad discretion in structuring discovery,” Edmond v. U.S.
Postal Serv. Gen. Counsel, 949 F.2d 415, 425 (D.C. Cir.
1991), summary judgment is premature unless all parties have
“had a full opportunity to conduct discovery.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). A Rule 56(f)
motion requesting time for additional discovery should be
granted “almost as a matter of course unless the non-moving
party has not diligently pursued discovery of the evidence.”
Berkeley v. Home Ins. Co., 68 F.3d 1409, 1414 (D.C. Cir.
1995); see also Resolution Trust Corp. v. N. Bridge Assocs.,
22 F.3d 1198, 1203 (1st Cir. 1994) (“Consistent with the
salutary purposes underlying Rule 56(f), district courts should
construe motions that invoke the rule generously, holding
parties to the rule’s spirit rather than its letter.”).
To obtain Rule 56(f) relief, the movant must submit an
affidavit which “state[s] with sufficient particularity . . . why
[additional] discovery [is] necessary.” Ikossi v. Dep’t. of
Navy, 516 F.3d 1037, 1045 (D.C. Cir. 2008) (internal
quotation marks, citation omitted). The affidavit must satisfy
three criteria. First, it must outline the particular facts he
intends to discover and describe why those facts are necessary
to the litigation. Byrd v. U.S. Envtl. Prot. Agency, 174 F.3d
239, 248 (D.C. Cir. 1999) (“Byrd [must] show what facts he
intended to discover that would create a triable issue . . . .”).
Second, it must explain “why [he] could not produce [the
(2) order a continuance to enable affidavits to be
obtained, depositions to be taken, or other discovery to be
undertaken; or
(3) issue any other just order.
FED. R. CIV. P. 56(f) (2009).
11
facts] in opposition to the motion [for summary judgment].”
Carpenter v. Fed. Nat’l Mortg. Ass’n, 174 F.3d 231, 237
(D.C. Cir. 1999); see also Berkeley, 68 F.3d at 1414
(“Notwithstanding the usual generous approach toward
granting Rule 56(f) motions, the rule is not properly invoked
to relieve counsel’s lack of diligence.”); Wichita Falls Office
Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir. 1992)
(“[T]he trial court need not aid [a party] who ha[s] occasioned
[its] own predicament through sloth.”). Third, it must show
the information is in fact discoverable. Messina v. Krakower,
439 F.3d 755, 762 (D.C. Cir. 2006) (“We will not find an
abuse of discretion where the requesting party has offered
only a conclusory assertion without any supporting facts to
justify the proposition that the discovery sought will produce
the evidence required.” (internal quotation marks omitted)).
Convertino easily satisfied the first two Rule 56(f)
criteria. In opposition to DOJ’s summary judgment motion,
Convertino submitted the affidavit of his counsel, who
outlined the particular facts Convertino hoped to discover and
why those facts were necessary to his claim. See Kohn Aff. at
2, Convertino, No. 1:04-cv-00236 (D.D.C. Oct. 18, 2010)
(Kohn Affidavit) (“[K]knowledge of the identity of Mr.
Ashenfelter’s source for the Article is essential to every
element of Mr. Convertino’s Privacy Act claim against
Defendant DOJ.”). Convertino’s counsel also described why
Convertino “could not produce [the facts] in opposition to the
[DOJ’s] motion [for summary judgment],” Carpenter, 174
F.3d at 237, to wit: although the reporter knew the identity of
his source, the Eastern District had sustained the reporter’s
Fifth Amendment assertion, requiring Convertino to again
seek discovery from the Free Press. See Kohn Affidavit at 4-
5. Convertino’s counsel also set forth Convertino’s extensive
efforts to obtain the identity of the DOJ leaker. See id. In fact,
the district court here described his efforts in the Eastern
District as “monumental.” Convertino, 769 F. Supp. 2d at
12
144. Convertino’s failure to discover the source’s identity,
then, was plainly not the product of a “lack of diligence,”
Berkeley, 68 F.3d at 1414, or “sloth,” Wichita Falls, 978 F.2d
at 919.
The remaining issue is whether the information can in
fact be obtained through additional discovery. See Messina,
439 F.3d at 762. DOJ argues that further discovery is simply a
waste of time. Appellee’s Br. 20-24. The reporter has thus far
successfully maintained his Fifth Amendment privilege and
the Free Press has consistently stated that the reporter is the
“only person on the newspaper’s staff with knowledge
regarding the article’s confidential sources.” Id. at 2. Thus, in
DOJ’s view, Convertino has offered no more than a
“ ‘speculative hope’ that further discovery . . . would be likely
to produce a triable issue of fact.” Id. at 18; see Carney v. U.S.
Dep’t of Justice, 19 F.3d 807, 813 (2d Cir. 1994) (upholding
Rule 56(f) denial because pursuit of discovery was “grounded
in mere speculation”).
Convertino counters that he has alleged more than
enough facts to show that the reporter and/or the Free Press
has the information he needs and that he can obtain that
information through discovery. Appellant’s Br. 24-26. In
particular, because his ability to obtain the information from
the reporter is—for now—foreclosed, he believes the Eastern
District may revisit—and grant—his pending motion to
compel discovery from the Free Press. Appellant’s Br. 17.
And if the Eastern District denies that motion, Convertino
plans to appeal the Eastern District’s ruling upholding the
reporter’s Fifth Amendment claim. Kohn Affidavit at 5
(“Should the Eastern District deny the Motion to Compel the
Detroit Free Press, . . . Convertino will appeal the Eastern
District’s decision to sustain Mr. Ashenfelter’s claim of Fifth
Amendment privilege.”).
13
We note, first, that the district court’s decision is built, at
least in part, on a faulty premise. In granting summary
judgment, the court suggested that Rule 60(b) provides
Convertino with an “escape valve” in the event he eventually
discovers the source’s identity through Eastern District
discovery. See Convertino, 769 F. Supp. 2d at 156 (“[A]n
escape valve is still available to Convertino even after this
Opinion and the Order memorializing its reasoning. After all,
if the Eastern District . . . compels discovery and Convertino
is in fact able to obtain the information he seeks, he is free to
move for reconsideration in light of newly discovered
evidence.”). The court apparently (and mistakenly) assumed
that Convertino could maintain the ancillary discovery
proceedings in the Eastern District even after the Privacy Act
litigation ended here. As we explained in In re City of El
Paso, 887 F.2d 1103 (D.C. Cir. 1989), however, if there is
“no pending trial in which [the requested] discovery can be
used,” the “availability of discovery subpoenas” becomes a
“moot [question].” 887 F.2d at 1106; see also Green v.
Nevers, 196 F.3d 627, 632 (6th Cir. 1999) (pending discovery
motions mooted by disposition of underlying cause of action).
Even DOJ acknowledged this error at oral argument. See Oral
Argument Recording at 49:40, Convertino, No. 11-5133,
(D.C. Cir. Mar. 12, 2012) (district court’s suggestion that
Eastern District discovery can continue after court’s grant of
summary judgment here “is clearly wrong”).
Moreover, we believe that Convertino submitted ample
evidence to suggest that additional discovery could reveal the
source’s identity. First, the Eastern District may decide to
compel discovery from the Free Press as presaged in its order
denying Convertino’s initial motion to compel the Free Press.
See Convertino, 2008 WL 4104347, at *10 n.17. Referencing
the public record in the Eastern District’s discovery
proceeding, during which the reporter produced a privilege
log listing 108 documents, Convertino also produced evidence
14
suggesting at least one other individual at the Free Press
knows the identity of the reporter’s source. See Mem. in
Supp. of Renewed Mot. to Compel Produc. at 2-3,
Convertino, No. 2:07-cv-13842 (E.D. Mich. Apr. 29, 2009). It
is reasonably likely that a Free Press “editor” was also privy
to at least some of these documents in view of the Free
Press’s assertion that it permits a reporter to publish an
anonymously-sourced article only if the article is approved by
“the highest-ranking editor available” and the fact that the
documents were created within the scope of the reporter’s
employment with the Free Press. Id. at 4. At the very least, a
deposition or document disclosure from the Free Press may
produce information leading to the source’s identity. While its
reporter invoked his Fifth Amendment privilege against self-
incrimination, the Free Press—as a corporation—enjoys no
Fifth Amendment privilege. See United States v. White, 322
U.S. 694, 698 (1944) (“The constitutional privilege against
self-incrimination is essentially a personal one, applying only
to natural individuals.”); In re Grand Jury Proceedings, 576
F.2d 703, 705 (6th Cir. 1978) (“Since the privilege against
self-incrimination is a purely personal one, it cannot be
utilized by or on behalf of any organization, such as a
corporation.”). Finally, Convertino can appeal the Eastern
District’s Fifth Amendment ruling to the Sixth Circuit once a
final order is entered.13
Considering the “generous approach” the district court
should take in deciding a Rule 56(f) motion, Berkeley, 68
F.3d at 1414, the district court’s mistaken view that
Convertino could continue to seek discovery in the Eastern
13
We also note that the discovery delays in Convertino’s pursuit
of his Privacy Act claim have not occurred because of his
action/inaction. See Resolution Trust, 22 F.3d at 1208-09 (district
court abused discretion in denying Rule 56(f) motion when most of
delay attributable to opposing party).
15
District notwithstanding the termination of Convertino’s
Privacy Act litigation and the “monumental” efforts
Convertino has taken to discover the needed information,
Convertino, 769 F. Supp. 2d at 144, we believe the district
court committed an abuse of discretion in denying
Convertino’s Rule 56(f) motion. Accordingly, we reverse the
district court’s judgment and remand the case for further
proceedings consistent with this opinion.
So ordered.