MICHAEL S. ZUMMER v. JEFFREY S. SALLET ET AL CIVIL ACTION NO. 17-7563 United States District Court, E.D. Louisiana Filed July 20, 2020 Counsel Daniel Centner, Peiffer, Wolf, Carr, Kane and Conway, New Orleans, LA, Robert B. McDuff, Pro Hac Vice, Robert McDuff, Attorney at Law, Jackson, MS, for Michael S. Zummer. Glenn Stewart Greene, @@, U.S. Department of Justice- Torts Branch, Civil Division, Washington, DC, for Jeffery S. Sallet, Daniel Halphen Evans, Laura A. Bucheit, Brigette Class, Daniel Powers, Michelle Ann Jupina, David M. Hardy, Michael G. Seidel, Gregory A. Brower, Richard R. Brown, Valerie Parlave, Federal Bureau of Investigation, David W. Schlendorf, Jr., Stephen P. Rees, Gerald Roberts, Jr. Currault, Donna Phillips, United States Magistrate Judge ORDER AND REASONS *1 Before me is a Motion to Compel filed by Plaintiff Michael S. Zummer seeking to compel the Official Capacity Defendants' production of the Administrative Record relevant to Plaintiff's remaining claims in this matter. ECF Nos. 94, 98. Defendants have filed an Opposition Memorandum, arguing that Plaintiff's discovery is improper and stating that they will lodge the Administrative Record within 30 days of that filing (i.e., August 8, 2020). ECF No. 95. Having considered the record, the written submissions of counsel, and the applicable law, IT IS ORDERED that Plaintiff's motion to compel is GRANTED as follows. I. BACKGROUND This litigation arises from Plaintiff's decision to send two letters to the Honorable Kurt Engelhardt, then a District Judge in the Eastern District of Louisiana, alleging impropriety and malfeasance by the Department of Justice (“DOJ”) in the prosecution of Harry Morel Jr. Plaintiff possessed the information contained in the letters because he was the lead agent tasked with investigating Morel, as well as being generally aware of information in the DOJ due to his status as a Federal Bureau of Investigation (“FBI”) agent.[1] The FBI revoked Plaintiff's security clearance, suspended him without pay, and refused to allow him to publish his letters to the public. See generally ECF Nos. 1, 53. Thereafter, Plaintiff filed suit asserting two First Amendment claims seeking relief for: (1) revocation of his security in clearance in retaliation for sending the letter to Judge Engelhardt; and (2) the FBI's refusal to allow him to publish his full, unredacted letter to the public. Judge Barbier granted the Defendants' Motion to Dismiss in part, dismissing Plaintiff's claims regarding his security clearance but allowing his claim regarding publication of his letter to proceed against certain Official Capacity Defendants. See Orders dated September 5, 2019, and October 18, 2019, ECF Nos. 83, 90. On November 1, 2019, Plaintiff issued a Request for Production seeking four categories of documents. ECF No. 94-5. Request for Production No. 2 sought “[a]ll documents concerning the Plaintiff's September 16, 2016 submission to the Federal Bureau of Investigation (“FBI”) Records Management Division/Information Management Division (“RMD/IMD”) for authorization to release to the public his August 15, 2016 and September 6, 2016 letters to Judge Kurt D. Engelhardt ....” ECF No. 94-5, at 5. Defendants issued written responses to the Requests for Production on December 23, 2019, stating: *2 Defendants object to Request for Production No. 2 to the extent that it purports to encompass departments, agencies and employees of the federal government having no involvement with events at issue in Plaintiff's Amended Complaint. Subject to this objection and the objections stated above, Defendants state that the administrative record relevant to Count Two of the Amended Complaint, the sole remaining claim in this matter, will be produced. ECF No. 94-6, at 4. Earlier in their response, Defendants stated: Subject to the objections stated above, and stated below in response to specific Requests for Production, Defendants will produce responsive documents, not subject to privilege or other protection from disclosure, on a rolling basis beginning approximately 21 days after service of this response and will substantially complete production within 45 days after service of this response. Defendants do not anticipate permitting inspection of any documents in the possession, custody, or control of Defendants. When Defendants failed to produce any documents by June 26, 2020, Plaintiff filed this Motion to Compel. Defendants filed an Opposition in which they assert that Defendants' production efforts have been hampered by the COVID-19 crisis[2] and argue, for the first time, that Plaintiff is not entitled to discovery in this case brought under the Administrative Procedure Act. ECF No. 95, at 2–3. Defendants represent that they will produce the Administrative Record within 30 days of their Opposition (i.e., August 7, 2020).[3] In Reply, Plaintiff argues that Defendants have had years to compile the Administrative Record, and production of same after the discovery deadline of August 3, 2020, is improper. ECF No. 98, at 2. II. ANALYSIS Having reviewed the record, argument of counsel, and discovery at issue, it appears that Defendants failed to object to the propriety of discovery based on the Administrative Procedure Act.[4] Instead, Defendants agreed to produce the Administrative Record within 45 days of the written responses served on December 23, 2019. Moreover, Defendants' discovery response did object to production of anything more than the Administrative Record, which is what they promised to produce. Notably, Plaintiff's Motion to Compel seeks only the Administrative Record and not any documents beyond the Administrative Record. Thus, Plaintiff's Motion to Compel does not seek discovery beyond that contemplated by the Administrative Procedure Act (i.e., the Administrative Record), and therefore, this Court need not address whether discovery beyond the Administrative Record is proper in this case.[5] Accordingly, for the foregoing reasons, *3 IT IS ORDERED that Plaintiff Michael S. Zummer's Motion to Compel is GRANTED; IT IS FURTHER ORDERED that Defendants must produce the Administrative Record within seven (7) days (i.e., on or before July 27, 2020). New Orleans, Louisiana, this 20th day of July, 2020. Footnotes [1] Plaintiff served as the lead agent in the FBI's investigation into Harry Morel Jr., then the District Attorney of Louisiana's 29th Judicial District. As a result of this investigation, FBI and state law enforcement officials concluded that Morel had been using his position as District Attorney to obtain sexual favors from defendants and members of defendants' families. After initially declining to prosecute Morel, the U.S. Attorney's Office for the Eastern District of Louisiana later decided to prosecute Morel. Morel eventually plead guilty to one count of Obstruction of Justice with a maximum three-year sentence. Plaintiff was upset by the lenient plea deal and what he viewed as corruption and conflicts of interest in the U.S. Attorney's Office, so he decided to draft a letter to the presiding judge detailing Plaintiff's concerns over the happenings in the U.S. Attorney's Office. [2] Had Defendants produced the documents in accordance with the timeline set forth in their December 23, 2019 discovery responses, they would have started the rolling production on January 13, 2020, and completed the production by February 6, 2020. [3] Defendants filed their Opposition on July 8, 2020, despite the September 8, 2020 date reflected on the Certificate of Service. [4] Any objection to production must “state with specificity the grounds for objecting to the request, including the reasons.” FED. R. CIV. P. 34(b)(2). Failure to raise an objection results in its waiver. See In re United States, 864 F.2d 1153, 1156 (5th Cir. 1989)(“[A]s a general rule, when a party fails to object timely to interrogatories, production requests, or other discovery efforts, objections thereto are waived.”); see also 8A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, AND RICHARD L. MARCUS, FEDERAL PRACTICE & PROC. CIV. 2d § 2204 (2d ed. 1994) (“the discovery rules constitute an integrated mechanism and they must be read in pari materia.”); McLeod, Alexander, Powel and Apffel v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (With respect to required specificity, “We see no reason to distinguish the standards governing responses to interrogatories from those that govern responses to production requests.”). [5] See, e.g., Citizen Advocates for Responsible Expansion v. Dole, 770 F.2d 423, 437 n.18 (5th Cir. 1985) (discussing examples of when limited discovery may be permitted); see also Camp v. Pitts, 411 U.S. 138, 142–43 (1973).