Converting v. United States Department of Justice

Citations: 401 U.S. App. D.C. 297; 684 F.3d 93; 82 Fed. R. Serv. 3d 1128; 2012 U.S. App. LEXIS 12783; 2012 WL 2362591Docket: No. 11-5133

Court: Court of Appeals for the D.C. Circuit; June 22, 2012; Federal Appellate Court

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Richard Convertino appeals the district court's summary judgment favoring the United States Department of Justice (DOJ) and the denial of his motion to stay the ruling to allow further discovery under Rule 56(f) of the Federal Rules of Civil Procedure. The appellate court reverses and remands the district court's summary judgment. The case originated shortly after the September 11, 2001 terrorist attacks when members of the Detroit Joint Terrorism Task Force sought to interview Nabil Al-Marabh, listed as a suspected terrorist. Instead, they encountered Ahmed Hannan, Farouk Ali-Haimoud, and Karim Koubriti, who were living together with false identity documents. Convertino, leading the prosecution, initially charged them with document fraud, but the case escalated into a terrorism trial. He later added Abdel Ilah El Mardoudi as a co-defendant, charging all with conspiracy to support terrorists and document fraud. After a three-month trial in June 2003, three defendants were convicted. However, Convertino was removed from the case for alleged ethical violations, and the defendants subsequently claimed they were denied due process due to the prosecution withholding evidence, referencing Brady v. Maryland. An investigation revealed additional undisclosed documents, leading to the vacating of the convictions and a new trial in September 2004. Convertino's alleged misconduct prompted a referral to the DOJ's Office of Professional Responsibility, which investigated whether he had intentionally withheld evidence. The situation gained public attention following a Detroit Free Press article that reported on the OPR referral, prompting an investigation by the DOJ's Office of Inspector General into the leak, which ultimately could not be traced.

On February 14, 2004, Convertino filed a lawsuit in the district court, claiming an unidentified Department of Justice (DOJ) employee disclosed confidential information protected by the Privacy Act to a reporter. Discovery began in spring 2006 but faced delays and disputes. In 2007, Convertino issued subpoenas for a deposition and document production to both the Free Press reporter and the Free Press, but neither complied. Convertino subsequently sought to compel compliance, leading to the Eastern District court granting the motion regarding the reporter, emphasizing the importance of identifying the source for Convertino's claim. However, the court denied the motion against the Free Press for being duplicative, suggesting that deposing the reporter would suffice. 

On December 8, 2008, the reporter attended the deposition but invoked the Fifth Amendment, refusing to answer questions. Convertino sought contempt sanctions, which the court denied but ordered a second deposition. Again, the reporter claimed the Fifth Amendment privilege, leading to an in camera hearing where the court upheld the privilege. Convertino argued that the reporter waived this privilege but the court denied his motion for reconsideration. He also renewed his motion to compel the Free Press for information, which remains pending as discovery is on hold pending an appeal. Throughout this process, Convertino continued to pursue his Privacy Act claim in the district court.

The district court set July 12, 2010, as the deadline for the Department of Justice (DOJ) to file a motion for summary judgment in Convertino's case after several discovery disputes. On that date, DOJ filed its motion, arguing that Convertino could not establish a prima facie violation of the Privacy Act due to his inability to identify the source of the alleged leak, which was necessary to demonstrate intent. Convertino sought a stay under Rule 56(f) to pursue discovery to identify the source from the Free Press in the Eastern District and indicated his intention to appeal if his motion to compel was denied. On March 24, 2011, the court granted summary judgment to DOJ and denied Convertino's stay motion, concluding that a further delay would be futile given Convertino's lack of success in identifying the source over several years. The court stated that if Convertino eventually discovered the information, he could seek reconsideration. Convertino timely appealed. It was noted that he currently lacks the necessary evidence to survive summary judgment on his Privacy Act claim, which requires proof of an agency's intentional violation that adversely affected the plaintiff. The court emphasized that without knowing the identity of the disclosing individual(s), Convertino could not demonstrate that the disclosure was intentional or willful. The appeal focused solely on the denial of Convertino's Rule 56(f) motion, which is reviewed for abuse of discretion, noting that summary judgment is premature without full discovery. Rule 56(f) motions for additional discovery are generally granted unless the requesting party has not diligently pursued evidence.

District courts are encouraged to interpret Rule 56(f) liberally, emphasizing the spirit of the rule over its strict letter. To obtain relief under Rule 56(f), a movant must submit an affidavit detailing the necessity for additional discovery, which must meet three specific criteria: (1) it must specify the facts sought and their relevance to the case; (2) it must explain why those facts could not be produced in opposition to the summary judgment motion; and (3) it must demonstrate that the information is discoverable. Although courts generally favor granting Rule 56(f) motions, they will not assist parties who demonstrate a lack of diligence. 

In the case of Convertino v. DOJ, Convertino met the first two criteria by submitting an affidavit from his counsel outlining the facts he sought regarding the identity of a source crucial to his Privacy Act claim, and explaining the inability to produce these facts due to a prior Fifth Amendment assertion upheld by a court. His attempts to identify the source were noted as significant. The contentious issue remains whether the sought information can be obtained. The DOJ argues that further discovery is futile, claiming that the reporter’s Fifth Amendment privilege effectively blocks access to the information, labeling Convertino's hopes as speculative. Conversely, Convertino asserts he has sufficiently demonstrated the potential for obtaining the necessary information through discovery, and he is prepared to appeal if his motion to compel discovery from the Free Press is denied.

The district court's decision to grant summary judgment was based on an incorrect assumption regarding Rule 60(b), which was misinterpreted as providing Convertino an "escape valve" for future discovery if he identifies his source through the Eastern District's proceedings. The court mistakenly believed that Convertino could continue discovery in the Eastern District after the conclusion of his Privacy Act litigation. However, case law clarifies that if there is no pending trial related to the requested discovery, such subpoenas become irrelevant. The Department of Justice acknowledged this error during oral arguments. 

Convertino submitted substantial evidence that further discovery might reveal the source's identity, including the potential for the Eastern District to compel the Free Press to disclose information, as indicated in prior rulings. He cited a privilege log from the Free Press listing 108 documents and suggested that other individuals within the organization might know the source's identity. The Free Press’s editorial policies imply that a higher-ranking editor likely reviewed the relevant documents. While the reporter invoked the Fifth Amendment, this privilege does not extend to the corporate entity of the Free Press. Convertino retains the right to appeal any Fifth Amendment rulings from the Eastern District to the Sixth Circuit once a final order is issued. The district court's misunderstanding of the discovery process and its implications for Convertino's Rule 56(f) motion constituted an abuse of discretion.

The district court's judgment has been reversed and the case remanded for further proceedings. The reference to former Rule 56(f), now Rule 56(d), is noted due to its change in 2010. Key agencies involved with the Task Force included the FBI, the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives, and others. Koubriti and El Mardoudi were convicted on conspiracy counts, while Hannan was convicted of document fraud, and Ali-Haimoud was acquitted. The Supreme Court’s decisions in Brady and Giglio are cited regarding the obligation of prosecutors to disclose evidence favorable to the accused and impeachment evidence. Investigations by the Office of Inspector General (OIG) centered on approximately thirty DOJ employees regarding a confidential material leak. Convertino's complaint against the Attorney General and DOJ employees included allegations under various laws, primarily focusing on a Privacy Act claim, which remains the only claim currently considered after the dismissal of others. The district court previously set deadlines for summary judgment motions and denied Convertino’s motion to compel document production. Rule 56(f) allows a party to request a delay in summary judgment motions if they cannot present necessary facts, and it is noted that any delays in Convertino's case were not due to his actions.