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Case number 20-5318, Ryan Noah Shapiro, appellant versus United States Department of Justice.

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Mr. Light for the appellant, Mr. Tillman for the appellant.

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Good morning and may it please the court.

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This is Jeffrey Light on behalf of appellant Ryan Shapiro.

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This court has never squarely addressed the question of whether Rule 56D requires in every FOIA case that a plaintiff show bad faith before obtaining relief.

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However, in the FOIA case of Schaeffer, there was no allegation by the plaintiff of bad faith, and yet this court held that it was an abuse of discretion to deny Rule 5060 relief.

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When this court has considered the existence of bad faith, it's been- What was the issue?

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What was the name of that case you just cited?

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Schaeffer was decided in 1974.

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In when?

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Sorry.

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1974.

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Well, the government cites far more recent cases like Freedom Watch and Baker and Hasseler, which are much more frequent cases.

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And they say evidence of bad faith is necessary in a FOIA case.

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That's what they hold.

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Well, those cases are actually distinguishable because in those cases, the plaintiffs sole argument was that there was bad faith.

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So this court said, was there or was there not bad faith.

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In this case, plaintiff is not pressing on appeal, a bad faith argument, but is arguing that the declarations were insufficient and that additional information was needed in order to fully oppose it.

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So this is different.

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Mr. Light, I'm looking at your, you're arguing

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In the district court, you argued that the district court should allow discover because party statements, and here I'm quoting you, give rise to the possibility of agency bad faith.

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That was your position in the district court.

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That was one of our positions.

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So how can you now say that the district court erred by requiring us showing a bad faith?

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That was your argument in the district court.

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But we pressed two bases for it.

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One was the issue of bad faith and the additional one was the insufficient declarations.

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In fact, we said very- I was only focusing on your bad faith point.

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You're telling us that the district court erred by requiring evidence of bad faith, but you argued in the district court that there was evidence of bad faith.

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We noted that there was, but we also said very specifically that evidence of bad faith was not required.

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And in our declaration, in which I went into what was required, I set forth that there was bad faith, but additionally, there were other reasons why discovery was required.

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Could you, would you go on, the time is limited.

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Would you focus, tell us what your best argument is about the inadequacy of the search.

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Would you please?

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Separate from the discovery issue?

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Yeah, separate from the discovery issue.

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So in Campbell, this court made clear, as far as case law, in Campbell, this court made clear that a search of the CRS is not sufficient and that a separate search of the ELSER indices needed to be conducted.

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And in this case, as a factual matter, we never found out from

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the FBI, whether the ERS or other systems were searched directly or not.

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And there's a big difference because there are different capabilities of those of the

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CRS search versus the ELSER search.

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And Mr. Hardy specifically said in his declaration, not all names of individuals contained in the ELSER indices can be retrieved through the general indices of the CRS.

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So for the FBI to then only conduct a search of the general indices of the CRS is not proper in light of the statement made in the declaration.

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ask with respect to the 56D argument, do you have any authority for the proposition that not providing search words, search terms or keywords entitles a plaintiff and a FOIA case to a deposition or other discovery?

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So the standard under Convertino is, and what was dispositive to the court in this case, is whether the information was necessary.

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And this court very specifically in Oglesby said that keywords are necessary and used that specific wording.

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But the remedy for that is another declaration.

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You didn't want another declaration.

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You didn't ask for a better declaration.

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You asked for a deposition.

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So what authority do you have or you get a deposition?

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Well, we didn't ask for a deposition.

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We asked for an interrogatory and we wouldn't have had any problem if the response had been a declaration addressing those questions as opposed to a specific

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sort of item by item response.

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But the general point is not that the court needed to give the specific relief that we asked for, but that it needed to grant us relief under 56D, which gives the court a menu of options.

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But the court didn't select from that menu.

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The court said no 56D relief is available at all if there's not a showing of bad faith.

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And that is not something that's been established by the text of the rule and is in fact inconsistent with the text of the rule, because if plaintiff had evidence of bad faith, they would simply win on the merits and there'd be no point in having discovery.

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The whole idea of Rule 56D is that the plaintiff cannot prevail on the current record.

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I just have a follow-up question to Judge Wilkins' question about key terms.

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So with respect to your request that focuses on names and organizations, the Hardy declaration says that they searched using the name of the person and organization

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a phonetic breakdown, dates of birth, places of birth in social security.

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So with respect to the names and organizations, could you help me about that?

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Where are the key terms?

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Where do they say they also use key terms for them?

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So the keywords that were described there, the search terms that were described by Hardy,

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were the search of the CRS.

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It is not clear if the ELSER indices were searched, what keywords were used for those.

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We don't even know which systems were searched, the ERS, the EDA, the EDMS, the field office ELSER search, and that matters because the FBI policy

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had been that when they conduct searches of the ELSER indices directly, they would only search for the subject of the investigation, not mentions or overhears or any of the other things that the ELSER search program is capable of doing.

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I see I'm now into my rebuttal time.

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Thank you.

[00:08:33] Speaker 01:
Good morning.

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I'll start by focusing on the issues that appear to be of importance to the court.

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That is the Rule 56D issue, unless there are other questions.

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Pertaining to that issue, I think the district court's decision has to be read in context.

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That is, the district court did say there was no showing of bad faith.

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Therefore, plaintiff was, or Mr. Shapiro was, unentitled to discovery.

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However, the standard in FOIA is that

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Discovery is the exception, not the norm.

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That is, if the court has before it sufficient facts to enter summary judgment, it does not abuse discretion by foregoing discovery and ensuring summary judgment.

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In this case, the court had before it sufficient facts to answer summary judgment on the ELSER search issue.

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Specifically, the second declaration of Mr. Hardy said that the subjects of the request were searched.

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The ELSER search was done for the subjects of the request and attached as an exhibit A, the subjects which identified the particular names of individuals or organizations.

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In the 16th party declaration, Mr. Hardy clarifies that there was a misunderstanding within the FBI in terms of the Reds office and the Elsa office.

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They did do, and the ELSA office did do a search.

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It just turns out that the search was duplicative of what the FBI had already done.

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That is that the ELSA indices had been incorporated into the automated case system, which is the general search that the FBI does, which allowed the FBI by using the search terms to search

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the uncertain disease to determine whether there was any potentially responsive information and, if so, then go out and locate that information for purposes of processing.

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Mr. Tillman, could I ask you to step back, for example, just for a second, and help me understand all these different

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indices and systems.

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Let me work with an analogy and see if you think it works.

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Let's assume what the FBI is operating here is a library.

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It consists of three things.

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It consists of books, which are the actual case files.

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That's the Kitsuzo books, which are the actual case files.

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And as I understand it, that's the ERS, EDA, CRS, and ECS systems.

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Those are files.

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Those are books.

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Those are the books in the library, right?

[00:11:20] Speaker 01:
Yes.

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Yes.

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OK.

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And then they've got different kinds of catalogs, as I understand it.

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Kirk, just tell me if I have this wrong.

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I may.

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So the card catalogs are the general indices and the ELSR indices.

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And in those indices, you could look up books by title and author, right?

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That's what you use those for.

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And then there's this computer system, ACS-UNI, which allows you to digitally search the card catalogs, right?

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Does that the way it works?

[00:12:01] Speaker 01:
Generally speaking, yes, but with one caveat, that is that the ELSER indices are incorporated in the automated case system in Sentinel, which is the new generation search feature, which allows you to search the indices.

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Go ahead.

[00:12:20] Speaker 03:
Wait, say that again, please.

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What's incorporated into what?

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So the central record system is composed of, it's just a record system for the CFDI.

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And then you have the indices that are incorporated into these search functions.

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That is the automated, what was previously the automated case system until Sentinel came online on or about 2012.

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And when that came online, the indices are searchable, the card catalogs, as you call them, are searchable in Sentinel.

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Is that ACSUNI, is that what that is?

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Yes, ACS is the original automated version of the automated index.

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That's correct.

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However, I think ACS was still operational for a period of time.

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And so it might have been ACS at a particular point in time when the search was conducted because the declaration was signed in 2012.

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OK, great.

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Because that's what's mentioned in the declaration.

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Yes, yes.

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OK, OK.

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So given that, I just have two questions.

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So the first one is,

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Where were ERS and EDA?

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Those are two record-keeping systems that the plaintiff here says should have been searched.

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Where do they fit into this whole system?

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My library system, where are they?

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What are they?

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The ELSER indices are what allows you to- No, no, not the ELSER.

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I was actually talking about ERS and EDA.

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What are they?

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I believe that those are actually systems that maintain records as opposed to the indexes of records, which the indices shows you where to go, to put it simply.

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No, I get that.

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But are these like books in my library?

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ERS and EDA, are they books?

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I believe so, but I would need to clarify.

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I believe they are.

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OK.

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Yeah, OK.

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Well, let me ask you this then.

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Are there any records?

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Would the records in those systems show up in an ACS-UNI search?

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They would show up on the indices.

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They should show up on the indices.

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That is that.

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Because the UNI, the ACS-UNI,

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That would search my card catalog, correct?

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That's correct.

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In other words, they would show up in the card catalog.

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So they would do that.

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And is there anything in the declarations that would tell me that?

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Where would I look to have that?

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And I realize there's a lot of declarations.

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If you want to tell us later that.

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I'm sorry, paragraph what?

[00:15:36] Speaker 01:
115 of the 16th Sedille, I mean, Hardy Declaration.

[00:15:42] Speaker 03:
Uh-huh.

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Okay, got 115.

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Okay, here's my second question.

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It has to do with these Elsa mentions that the plaintiff here has raised.

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So the second Hardy declaration says that they're not indexed in the headquarters Elsa indexed.

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That's, yeah.

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So would the ACSUNI search have turned up ELSER mentions that might be listed in field office indices?

[00:16:25] Speaker 01:
Yes, and just to clarify, so there was a misunderstanding in terms of what the ELSER office was doing when it was conducting the search.

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Initially, in the second declaration, it was believed that

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the FBI would do the ACS search, but then also send out a request for the ELSER office to do a separate search, which was done in this case.

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However, the 16th Hardy declaration clarifies that in essence, what was being done is just searching ACS.

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That is the ELSER office was searching ACS because all of the indices, the ELSER indices were uploaded into ACS.

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Okay, I got that.

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But what about the, the Hardy, Hardy says that he says that he said some field offices continue to include the names of individuals mentioned in monitor, monitor conversations in their field office, ELSER indices.

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Now those, I assume the, the

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the ACS, UNI would find those, but what about the field offices that don't, that don't put them in their ELSER index?

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The UNI, the ACS, UNI search would not find those, would it?

[00:17:50] Speaker 01:
Well, presuming that they were not put in, but the presumption is that they actually are put in, in terms of the indices.

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But Hardy says some field offices, some,

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continue to include the names of individuals mentioned offices.

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That suggests to me that others just keep the information in their books, their case files.

[00:18:18] Speaker 01:
That's assuming that... Sorry, go ahead.

[00:18:22] Speaker 03:
No, go ahead.

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Again, that was based on...

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That was based on the misunderstanding of how the process worked, which was clarified in the 16th Hardy Declaration.

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In essence, it was.

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So just step back and say to us, explain to us, using the record, how the searches that the FBI did would uncover mentions

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in field offices that are both mentioned, some are in the ELSER index, some are just in books.

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Now, what in the record tells us that the FBI searched for those ELSER mentions, those two categories?

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Again, the paragraph 115 of the Hardy Declaration

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That is, when you read the declaration, it speaks to the misunderstanding of there being a need for a separate search.

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However, the indices themselves, the indices themselves were uploaded into ACS.

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And also, I'd like to mention that the standard under FOIA is adequacy.

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That is, to conduct an adequate and reasonable search.

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So you don't have to recover all records extent.

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It's that the search has to be reasonable.

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And there wasn't any challenge below to the adequacy of the search.

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So that argument was waived.

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The challenge wasn't to the specific names used or even whether everything was searched.

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The rule 56D motion was, in essence, says that I have insufficient information to challenge the search.

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And I want to get to that.

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Is it your position that his challenge to the Elsa search is waived?

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Is that what you just said?

[00:20:22] Speaker 01:
Yes, that's one of the positions that's correct.

[00:20:29] Speaker 03:
In his cross-motion for summary judgment, he said that the Elsa search was inadequate for all the reasons said in his other motion.

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And the court should grant summary judgment based on that.

[00:20:41] Speaker 03:
So he raised it.

[00:20:43] Speaker 01:
Well, he didn't raise the precise issues pertaining to the location search in terms of ACS.

[00:20:49] Speaker 01:
So the precise issue was not raised before the court.

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That is the issue I'm mentioning to you now that the district court found.

[00:20:58] Speaker 01:
That is that the search was adequate because of the proper places of research.

[00:21:05] Speaker 03:
OK, unless my colleagues, well, did you have anything else?

[00:21:09] Speaker 02:
So I have a question, and that's regarding search terms.

[00:21:13] Speaker 02:
Yes.

[00:21:15] Speaker 02:
I mean, we've held repeatedly, going back to at least Oglesby in 1990, that in order for the district court to assess whether a search was adequate, the court needs to know what search terms or keywords were used.

[00:21:35] Speaker 02:
Do you dispute that that's our case law in this circuit?

[00:21:41] Speaker 01:
I do not dispute that fact.

[00:21:43] Speaker 01:
in terms of that search terms that this court has found that search terms are necessary to be able to evaluate the adequacy of the search.

[00:21:56] Speaker 02:
So where in the record were the search terms ever disclosed to the court and to Mr. Shapiro?

[00:22:07] Speaker 01:
The second declaration speaks to the search of the ulcer

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an ELSER search being conducted of the subjects, that is the subjects of the request.

[00:22:18] Speaker 01:
That declaration also attaches in Exhibit A, which has as one of the columns subject.

[00:22:29] Speaker 01:
In addition, the 16th Hardy Declaration discusses the duplicity of searches.

[00:22:37] Speaker 01:
That is that when the search was conducted,

[00:22:41] Speaker 01:
the FBI had already conducted a search of the ACS.

[00:22:46] Speaker 01:
And so the FBI's or RID's search of the ACS, which is discussed in the district court's opinion, discussing, as Judge Tatel said, the fanatic breakdowns, the social security numbers were mentioned, as well as the subjects constituted a search of the else, what was a search in the search terms used for the elsewhere indices.

[00:23:10] Speaker 01:
Those are the locations in the record where it mentions the information that was searched in search terms.

[00:23:20] Speaker 02:
I guess what I'm trying to get at, though, is was there ever a list that was provided in the record of, okay, these are the search terms that were used, and here's the list.

[00:23:33] Speaker 02:
There's 20, there's 30, there's 40, there's 100, there's five.

[00:23:38] Speaker 01:
If you look at the, again, not explicitly, we searched the subjects.

[00:23:45] Speaker 01:
And so the Exhibit A contains a list.

[00:23:49] Speaker 01:
And that list is the list of subjects for each of the 81 or the 81 different request numbers associated with the request.

[00:24:01] Speaker 01:
Okay.

[00:24:03] Speaker 01:
So,

[00:24:06] Speaker 01:
Not to mention it, as well as the FBI did, the record does spell out what search was done of the ACS in terms of in detail, in terms of the search terms.

[00:24:18] Speaker 01:
And that, in effect, was a search of the ELSER indices as well.

[00:24:26] Speaker 03:
What page is that on, Mr. Tillman?

[00:24:29] Speaker 01:
No record.

[00:24:31] Speaker 01:
What specifically?

[00:24:33] Speaker 01:
The page of the opinion or page of the declaration or these was specifically are you Yeah, and the declaration.

[00:24:41] Speaker 01:
So the Declaration 115 a paragraph 115 of the 16th declaration.

[00:24:48] Speaker 01:
The second party declaration is an attachment a the specific paragraph number.

[00:25:22] Speaker 01:
Specific paragraph numbers 21 in the second declaration and then the As well as the paragraph 19 of the second declaration

[00:25:51] Speaker 01:
when we're right together.

[00:25:57] Speaker 03:
OK, Judge Wilkins, were you finished with that line of question?

[00:26:00] Speaker 02:
Well, I guess what I'm confused about this is that in the opening brief of Mr. Shapiro, Appellant Shapiro, Dr. Shapiro, I should say,

[00:26:21] Speaker 02:
He points out that the searches weren't adequate or there's no way to know whether the searches were adequate because we never got the keywords or the search terms.

[00:26:37] Speaker 02:
And I didn't see in your brief where you responded to that and said, yes, we did give them the search terms.

[00:26:50] Speaker 02:
Did I miss that?

[00:26:52] Speaker 01:
Excuse me?

[00:26:53] Speaker 02:
Did I miss that?

[00:26:54] Speaker 02:
Is it in your brief?

[00:26:56] Speaker 01:
I don't have a specific place in the brief where that is mentioned.

[00:27:00] Speaker 01:
I will confess that I didn't draft the brief, and I wasn't counseled below.

[00:27:06] Speaker 01:
But with that being said, it is in the record in terms of the court understood the search terms to be what has been mentioned.

[00:27:17] Speaker 01:
the court's opinion discusses the search terms that were used and the search is being adequate.

[00:27:26] Speaker 02:
Okay.

[00:27:27] Speaker 02:
Um, those are all the questions I had.

[00:27:29] Speaker 03:
Judge Rall, did you have anything else?

[00:27:31] Speaker 03:
Um, I did not.

[00:27:32] Speaker 03:
Thank you.

[00:27:32] Speaker 03:
Okay, great.

[00:27:34] Speaker 03:
Okay.

[00:27:34] Speaker 03:
Thank you.

[00:27:35] Speaker 03:
Uh, uh, let's see, um, um, uh, uh, Mr. White, you, you had some time left, so go ahead.

[00:27:46] Speaker 00:
Your honor, I think part of the reason that the court is having some difficulty extracting from the record exactly what these systems are about how they work what happened is precisely the reason that we needed discovery and why the record was inadequate.

[00:28:02] Speaker 00:
The district court assumed that when the FBI was talking about the ELSER indices that it meant the ERS and EDA.

[00:28:10] Speaker 00:
The FBI never so much as mentions ERS or EDA or field offices or EDMS anywhere in their brief.

[00:28:19] Speaker 00:
They suggest at first that- Those are all files, right?

[00:28:25] Speaker 03:
that you're mentioning.

[00:28:27] Speaker 03:
Put them in the context of my library metaphor.

[00:28:31] Speaker 03:
Those are all books, right?

[00:28:32] Speaker 03:
They're files of documents, correct?

[00:28:35] Speaker 00:
Well, they're audio recordings.

[00:28:37] Speaker 00:
They're not card catalogs, right?

[00:28:41] Speaker 00:
Yes, they are catalogs.

[00:28:44] Speaker 00:
And if

[00:28:46] Speaker 00:
Your Honor would like to see, you know, for example, we included in the record a search request for ERS and the results of it and what a search slip looks like for EDA and what it returned.

[00:28:59] Speaker 00:
And those are at Joint Appendix 526 and 528.

[00:29:04] Speaker 00:
The FBI suggested at first that they did a separate search of the ELSER indices, whatever that means.

[00:29:11] Speaker 00:
They didn't say what keywords they were using.

[00:29:14] Speaker 00:
They didn't say which of the ELSER indices they were searching.

[00:29:19] Speaker 00:
And then they go on to say, well, actually, we never searched the ELSER indices separately.

[00:29:24] Speaker 00:
What we did, what the ELSER folks did is an ACS UNI search.

[00:29:28] Speaker 00:
But then that raises the question, all right, the EDA has the capacity to search only principles.

[00:29:37] Speaker 03:
Why wouldn't the ACS, UNI, that searches the ELSER indices, right?

[00:29:44] Speaker 03:
That's why you do it, correct?

[00:29:47] Speaker 03:
Why would you, why would you, if you do, if you do, let's assume you're looking for one name and everybody agrees it's the right name.

[00:29:54] Speaker 03:
Okay.

[00:29:54] Speaker 03:
And you put it into UCSACI, UNI, ACSUNI, and it doesn't turn up anything in the ELSER index.

[00:30:04] Speaker 03:
Doesn't that tell us that doesn't, that that name's not there?

[00:30:06] Speaker 00:
No, all it tells us is that it is not indexed in the CRS.

[00:30:11] Speaker 00:
So what Mr. Hardy says is, and this is at Joint Appendix 155, not all names of individuals contained in the ELSER index can be retrieved through the general indices of the CRS.

[00:30:23] Speaker 00:
That is, not all names in the ELSER indices can be retrieved through an ACS UNI search.

[00:30:29] Speaker 00:
The government is saying, yes, where, where are those.

[00:30:33] Speaker 03:
Yeah, I understand your point about that.

[00:30:35] Speaker 03:
I get that.

[00:30:35] Speaker 03:
Where are those documents if they're not in that are they in in the office the field offices.

[00:30:41] Speaker 03:
They're just not indexed at all.

[00:30:44] Speaker 00:
They are.

[00:30:45] Speaker 00:
They can be in that.

[00:30:48] Speaker 00:
Your Honor, it's difficult because the record is so incomplete as to what's going on here.

[00:30:52] Speaker 00:
And, you know, that's sort of why we wanted to get a fuller explanation from the FBI.

[00:30:58] Speaker 00:
However, the best of my understanding is that the ACS, UNI, can be searched and that that will locate things in the CRS.

[00:31:10] Speaker 00:
Oh, good.

[00:31:12] Speaker 00:
Separately from that,

[00:31:13] Speaker 00:
there is ELSR and that is where the actual audio files reside and it also has its own separate index.

[00:31:23] Speaker 00:
So for example, if the CRS says we did a wiretap of somebody, okay, the actual recording of that is not in the CRS unless it's serialized.

[00:31:37] Speaker 00:
Sometimes it is, sometimes it's not.

[00:31:39] Speaker 00:
And this is another issue that the FBI doesn't address.

[00:31:43] Speaker 00:
When they're serialized, the record shows that they're going into something called a 1D file.

[00:31:48] Speaker 00:
If they're not, then everything exists in the ERS EDA, except maybe some of it is in the EDMS, because that is what is currently the most comprehensive system.

[00:32:01] Speaker 00:
We don't know what keywords were used, and we don't know if

[00:32:05] Speaker 00:
If an ACS, you know, assuming the government's position that ACS search did search all of the ELSER indices, we still don't know, did the FBI follow its previous policy of limiting searches to principles?

[00:32:21] Speaker 00:
Or is that even something that ACS has a capability of doing, distinguishing between principles and mentions?

[00:32:28] Speaker 00:
We just have no idea what was going on here.

[00:32:31] Speaker 00:
And we asked, I think, some very specific questions in the interrogatories to get at these answers, a little bit about how are things indexed.

[00:32:41] Speaker 00:
But I think the court did make very clear in Campbell, which post dated when the ACS came online, that an ELSER, a separate ELSER search is required

[00:32:55] Speaker 00:
I don't know exactly what the record was in that case.

[00:32:58] Speaker 00:
Maybe the government's offering more.

[00:32:59] Speaker 00:
Maybe it's offering less now.

[00:33:01] Speaker 00:
But the record is just so barren that the district court was left to speculate as to what was going on.

[00:33:08] Speaker 00:
Some of those speculations may be accurate.

[00:33:10] Speaker 00:
Some of them were not.

[00:33:12] Speaker 00:
But on summary judgment, all of this has to be drawn in the light most favorable to plaintiff.

[00:33:17] Speaker 00:
And that's clearly not something that happened here.

[00:33:20] Speaker 02:
So what's your response to

[00:33:23] Speaker 02:
your friend on the other side's argument that the district court knew what keywords were used because there was the exhibit A to the second declaration.

[00:33:36] Speaker 02:
And that was explained in what is it?

[00:33:41] Speaker 02:
Paragraph 15 of the 16 tardy declaration, et cetera.

[00:33:47] Speaker 00:
Right, the district court knew what keywords were used to search the ACS.

[00:33:52] Speaker 00:
The court did not know what keywords were used to search the ELSER indices separately.

[00:33:59] Speaker 00:
It may have been that there were no search terms provided for the ELSER indices because the FBI never did a separate search for the ELSER indices.

[00:34:10] Speaker 00:
They said at first they did, they said later they didn't.

[00:34:13] Speaker 00:
If they never did a separate search of ERS EDA, our argument is they should have.

[00:34:20] Speaker 00:
If their argument is that they did do a separate search of those, then our argument is, then tell us the keywords that were used.

[00:34:28] Speaker 00:
Tell us what limitations.

[00:34:29] Speaker 00:
And I think it is in stark contrast to the incredible detail the FBI provided about how the CRS system works, how it's searched, what keyword terms were used, and their complete silence on the ERS and EDA systems.

[00:34:48] Speaker 00:
court held an ancient coin collectors guild, essentially that the plaintiff needs to point to a system in the record.

[00:34:55] Speaker 00:
And then the burden is on the agency to fill in the gap in the record.

[00:34:59] Speaker 00:
And that's what plaintiff did here.

[00:35:01] Speaker 00:
Plaintiff did his best job to present information he had from the public record from previous FOIA requests.

[00:35:09] Speaker 00:
But as this court noted in Laundergan,

[00:35:13] Speaker 00:
Discoveries is especially important in FOIA cases because of the asymmetry of information between the parties.

[00:35:21] Speaker 00:
And I think it's very telling that the FBI never so much as mentioned these record systems, never mentioned the field offices.

[00:35:31] Speaker 00:
And if they did search only the ACS, they never said whether it was limited to a principal search as their own guidance says should happen.

[00:35:40] Speaker 00:
Maybe that guidance was still in effect.

[00:35:42] Speaker 00:
Maybe it wasn't.

[00:35:43] Speaker 00:
We don't know the guidance.

[00:35:45] Speaker 02:
Are you disputing what your friend on the other side says, which is that the ACS will search and that all L-Cert indices are uploaded in the ACS?

[00:35:55] Speaker 00:
Yes.

[00:35:57] Speaker 00:
They're not uploaded.

[00:35:58] Speaker 00:
The actual audio files are sometimes serialized and put into a 1D file.

[00:36:04] Speaker 00:
And often, they're not.

[00:36:06] Speaker 00:
They are in the EDMS or ERS.

[00:36:10] Speaker 00:
there is apparently the FBI says a quote interface between these systems.

[00:36:16] Speaker 00:
We don't know what that means, right?

[00:36:18] Speaker 00:
It may mean that ACS interfaces with it in the sense that it can only access principal records.

[00:36:25] Speaker 00:
But the problem here is that we know so little about how these interface and what can be accepted.

[00:36:32] Speaker 00:
What we do know for certain is that a search that is limited.

[00:36:37] Speaker 02:
not understanding you or maybe we are like two ships passing in the night.

[00:36:44] Speaker 02:
Are you disputing whether ELSER indices are uploaded into ACS indices?

[00:36:51] Speaker 02:
Yes.

[00:36:52] Speaker 02:
Then what is you basing that dispute on?

[00:36:55] Speaker 02:
How is that a dispute of fact?

[00:36:58] Speaker 00:
So this is from Joint Appendix 155, the Second Hardy Declaration saying, not all names of individuals contained in the ELSER indices can be retrieved through the general indices of the CRS.

[00:37:12] Speaker 00:
The Hardy goes on to later say that RIDS uses the CRS search to locate

[00:37:23] Speaker 00:
ELSER records.

[00:37:24] Speaker 00:
So those are, when they say ACS search, that is equivalent to saying we searched the CRS.

[00:37:32] Speaker 00:
And there are ELSER records.

[00:37:34] Speaker 00:
To be clear, there are some ELSER records in the CRS.

[00:37:37] Speaker 00:
There might be a record that says we did a wiretap.

[00:37:41] Speaker 00:
Here's our Title III application.

[00:37:43] Speaker 00:
The FBI would then presumably follow that lead and go to the ELSER system to retrieve it.

[00:37:49] Speaker 00:
But it is very much in dispute

[00:37:53] Speaker 00:
whether they were uploaded.

[00:37:54] Speaker 00:
And if they were uploaded, how the search would take place?

[00:38:00] Speaker 00:
What would that mean that they interface?

[00:38:04] Speaker 00:
And I think it's important also, again, when the FBI says the LSERT indices were uploaded, we don't know what that means.

[00:38:13] Speaker 00:
We don't know specifically, ELSER indices is a term that exists in the federal register.

[00:38:19] Speaker 00:
It's not an actual thing.

[00:38:21] Speaker 00:
It's a system of record under the Privacy Act.

[00:38:24] Speaker 00:
The actual computer systems are ERS and EDA.

[00:38:29] Speaker 00:
So this is a little bit more like a legal conclusion that they're pushing.

[00:38:34] Speaker 00:
They made the definitions of ELSER indices.

[00:38:36] Speaker 00:
They refused to tell the court.

[00:38:37] Speaker 00:
what their definition is.

[00:38:39] Speaker 00:
And that's sort of the basic information that plaintiff needs in order to be able to meaningfully challenge the issues here.

[00:38:53] Speaker 03:
Anything else, Judge Wilkins?

[00:38:55] Speaker 02:
Well, I guess what I'm trying to, another part of this that is concerning to me that I'm trying to tease out is that

[00:39:08] Speaker 02:
Your Rule 56D motion says, you know, we want discovery because we don't know, in part, it said the basis was we don't know what search terms were used.

[00:39:29] Speaker 02:
With respect to your opposition to summary judgment by the government,

[00:39:38] Speaker 02:
you said in passing in the sentence, if we want you to deny summary judgment to the government or grant us summary judgment, I'm not sure which, because of the

[00:40:05] Speaker 02:
fact that we don't know what search terms were used as mentioned in our Rule 56D motion.

[00:40:12] Speaker 02:
But as best as I can tell, that was never developed further.

[00:40:18] Speaker 02:
Am I wrong about that?

[00:40:22] Speaker 02:
In the summary judgment briefing, it wasn't developed further.

[00:40:26] Speaker 00:
Yeah, the summary judgment briefing just incorporated by reference.

[00:40:31] Speaker 02:
We've said you can't do that though.

[00:40:34] Speaker 00:
The court has, I couldn't find any authority that suggests that two concurrent filings cannot incorporate references by each other.

[00:40:44] Speaker 00:
What cannot happen is a plaintiff can't do something that would sort of go over the page limit or in a separate proceeding, like on appeal, say we incorporate that.

[00:40:58] Speaker 00:
But in fact, the government did the same thing in their

[00:41:03] Speaker 00:
in their brief attempting to incorporate by reference.

[00:41:07] Speaker 00:
Their cross motion for summary judgment said nothing other than we incorporate by reference our opposition to the cross motion for summary judgment.

[00:41:19] Speaker 02:
Were they incorporated by reference their summary judgment motion?

[00:41:23] Speaker 00:
Right.

[00:41:24] Speaker 02:
So you don't have to, with your briefing summary judgment,

[00:41:28] Speaker 02:
And you say, I am entitled to summary judgment.

[00:41:31] Speaker 02:
And then you can say in opposition to the other side's cross motion for summary judgment.

[00:41:36] Speaker 02:
You can say, I don't need to say anything more than what I said in my motion saying that I should get summary judgment.

[00:41:46] Speaker 02:
That's different than incorporating by reference a completely different motion, which is I want discovered.

[00:41:58] Speaker 00:
Well, I mean, Your Honor, it's not uncommon that plaintiffs argue in the alternative, we need discovery because we don't have the information.

[00:42:08] Speaker 00:
But then in order to avoid waiving the issue on the merits, they then say, you know, the same reasons.

[00:42:17] Speaker 00:
We could have copied and pasted most of that brief.

[00:42:22] Speaker 00:
I don't think that would have really accomplished anything.

[00:42:24] Speaker 02:
The reasons we set forth would have accomplished placing it before the district court because the district court didn't seem to be focused on your search term argument as a grounds to deny summary judgment.

[00:42:45] Speaker 02:
district court seemed to be focused on research term argument as whether or not that entitled you to discover.

[00:42:55] Speaker 02:
And the reason that the district court was focused on it that way was because that's the way you litigate.

[00:43:01] Speaker 00:
Well, I mean, the court ultimately didn't really address the

[00:43:05] Speaker 00:
the merits of it.

[00:43:06] Speaker 00:
So focusing instead entirely on the bad faith.

[00:43:10] Speaker 00:
But the way we litigated it in this particular circumstance is to say in our discovery motion, the government's affidavits are insufficiently detailed.

[00:43:21] Speaker 00:
That is also the same standard for us to prevail or to successfully oppose their summary judgment motion.

[00:43:31] Speaker 00:
If it is true that it was insufficiently detailed,

[00:43:35] Speaker 00:
That same argument applies in both cases.

[00:43:41] Speaker 00:
So I'm not sure what else we would have said in our brief.

[00:43:48] Speaker 00:
All right.

[00:43:49] Speaker 02:
Thank you.

[00:43:49] Speaker 02:
Those are all my questions.

[00:43:53] Speaker 03:
Thank you, gentlemen.

[00:43:55] Speaker 03:
The case is submitted.