In re Terrorist Attacks on Sept. 11, 2001

• Citation: 523 F.Supp.3d 478
• Decision Date: 01 March 2021
• Docket Number: 03-MDL-01570 (GBD)(SN)
• Parties: IN RE: TERRORIST ATTACKS ON SEPTEMBER 11, 2001
• Court: U.S. District Court — Southern District of New York

523 F.Supp.3d 478

IN RE: TERRORIST ATTACKS ON SEPTEMBER 11, 2001

03-MDL-01570 (GBD)(SN)

United States District Court, S.D. New York.

Signed March 1, 2021

Filed March 4, 2021

OPINION & ORDER

SARAH NETBURN, United States Magistrate Judge:

On January 15, 2020, the Plaintiffs’ Executive Committees ("Plaintiffs" or the "PECs") filed under seal their second motion to compel the Federal Bureau of Investigation ("FBI"). On April 13, 2020, the FBI filed an opposition to Plaintiffs’ motion to compel and a cross-motion for a protective order. ECF No. 6136 et seq. Plaintiffs filed their reply on July 10, 2020. ECF No. 6310 et seq.¹ The FBI filed a surreply on September 4, 2020. ECF No. 6433. On October 9, 2020, and October 13, 2020, Plaintiffs filed two letter motions "to supplement the record" on the Plaintiffs’ motion to compel and the FBI's cross-motion for a protective order. ECF Nos. 6491, 6497; see also ECF Nos. 6506, 6509. The FBI filed responsive letters on October 15, 2020, and October 16, 2020. ECF Nos. 6501, 6505. Plaintiffs’ motion is GRANTED in part and DENIED in part.²

BACKGROUND

On April 10, 2018, Plaintiffs served on the FBI a subpoena and a request pursuant to the Department of Justice's so-called "Touhy" regulations, 28 C.F.R. §§ 16.21 - 16.29, for production of ten categories of records. See First Declaration of Sarah S. Normand ("First Normand Decl."), dated June 21, 2019, Ex. A. Five of the categories seek "[a]ny and all records" or—in one case—"any and all PENTTBOM records" referring to the FBI's investigation of the attacks of September 11, 2001 concerning seven individuals or entities (categories (a) and (b)), the FBI's ongoing "subfile" investigation (category (d)), and any subjects of the subfile investigation identified in the 2012 FBI Summary Report (categories (f) and (g)). Id. at App. A.

The Government provided an interim response to the Touhy request on May 2, 2018. See First Normand Decl., Ex. B. In the interim Touhy response, the Government objected to the Touhy request to the extent it seeks records beyond the scope of jurisdictional discovery as defined by the Court, namely, "whether and to what extent Thumairy, Bayoumi, and their agents took actions in 2000, at the direction of more senior Saudi officials, to provide assistance to Hazmi, Mihdhar, and other 9/11 hijackers." Id., at 4-6; see also ECF No. 3946, Memorandum Decision and Order ("March 28 Order"), at 23. The Government also objected to the Touhy request on the grounds that it would impose an extraordinary, disproportionate, and undue burden on the FBI, both in its exceptionally broad scope and insofar as it seeks production of classified and privileged records as well as the entire investigatory file relating to the FBI's ongoing subfile investigation and subjects of that investigation. See First Normand Decl., Ex. B, at 6-11.

In light of these and other objections, the Government asked the PECs to significantly narrow the scopes of both the request and the subpoena. Id., at 11-12. The PECs replied to the interim Touhy response by letter dated May 25, 2018. First Normand Decl., Ex. C. While Plaintiffs offered to modify the request in a number of categories, they did not offer to further limit their request for "any and all" records concerning the FBI's Subfile Investigation and the subjects of that investigation. Id., Ex. A (table) at 2-4. By letter dated July 30, 2018, the Government explained its core records approach for the first time in writing in response to Plaintiffs’ requests, stating that "the FBI is in the process of identifying a subset of documents that may be relevant to the allegations on which the Court has permitted jurisdictional discovery to proceed. The FBI will then conduct a declassification and privilege review of those documents to determine what, if any, information can be provided." Fourth Declaration of Sarah S. Normand, dated April 13, 2020 ("Fourth Normand Decl."), Ex. N.

On August 8, 2018, Plaintiffs responded to the Government's July 30, 2018 letter, acknowledging the Government's statements concerning the FBI's core records approach but expressing their frustration that the FBI had not yet produced any documents in response to the subpoena or substantiated the FBI's objections in the interim Touhy response. Fourth Normand Decl., Ex. O. In advance of a scheduled October 12, 2018 discovery conference, Plaintiffs sent another letter expressing their interest in details concerning the "criteria that were used to identify the ‘core’ set of records," and identifying a further list of documents contained within the FBI's files directly relevant to the jurisdictional inquiry authorized by the Court. Declaration of Sean P. Carter, dated July 10, 2020 ("Carter Decl."), Ex. 11.

At the October 12, 2018 conference, the Government stated that "despite the breadth [of the subpoena] and despite the objections, [the U.S. Attorney's Office] has worked very hard with the FBI to identify a subset of documents that [it thought] may be relevant potentially to the matters on which the Court has authorized limited jurisdictional discovery to proceed." Fourth Normand Decl. ¶ 18. Plaintiffs advised the Court that they "are hopeful about the process," but "will not know until [they] get the documents and actually see them." Carter Decl. ¶ 20. The PECs and the Government continued to confer regarding the FBI's response, including but not limited to meet and confers held on October 9 and 11, 2018; January 2, 2019; and March 20, 2019. Id. ¶ 17. The FBI agreed to search for some additional records based on discussions with the PECs, and the FBI documents were produced to Plaintiffs on a rolling basis, beginning with the first tranche on November 19, 2018. Fourth Normand Decl. ¶¶ 19, 22.

On January 2, 2019, Plaintiffs sent the Government a letter setting forth "a list of documents that [the PECs] wanted to make certain were included in the FBI's searches and produced." See Second Declaration of Sarah S. Normand, dated Sept. 12, 2019 ("Second Normand Decl."), Ex. F. In March and April 2019, Plaintiffs and the Government engaged in a series of meet and confer discussions concerning the FBI's productions. Fourth Normand Decl. ¶ 27. On March 25, 2019, Plaintiffs sent a letter to the Government asking for clarification concerning the scope of the FBI's document searches. Carter Decl., Ex. 24. In an email dated July 16, 2019, Plaintiffs reiterated their request for clarification concerning the methodology and adequacy of the FBI's searches "to make sure that [Plaintiffs] have a clear understanding of the methodology the FBI employed in connection with its so-called core documents approach." Id., Ex. 14.

On August 2, 2019, the Government responded to Plaintiffs’ July 16 Email, stating that Plaintiffs were mistaken "that the FBI treated as core all records in its possession relating to Bayoumi, Thumairy, [Redacted] (or any other individual)." Id., Ex. 16 Rather, the "FBI's approach has always been that it would undertake a declassification review with respect to a subset of ‘core’ records including Bayoumi and Thumairy." Id. (emphasis in original). According to the Government, "FBI personnel who were involved in the subfile investigation identified documents that were of central relevance to the jurisdictional inquiry based upon their personal knowledge of the case file and its contents, along with targeted electronic searches of Sentinel designed to locate certain witness statements and other specific records." Id. By letter dated August 16, 2019, Plaintiffs stated that the Government's explanation of the search methodology was at odds with its prior representation that "the FBI's search of the subfile would extend to all subfile documents relating to or referencing Bayoumi and/or Thumairy, and that all such documents would be reviewed as part of the ‘core documents’ approach." Id., Ex. 17.

The Government sent Plaintiffs a letter on September 4, 2019, advising that it "never stated or implied that the FBI's search would include ‘all subfile documents relating to or referencing Bayoumi and/or Thumairy.’ Given both the volume and the classified and privileged nature of the records, any such search would be unduly burdensome." Id., Ex. 18. The Government also stated that it could not provide a list of the search terms used in the FBI's electronic searches, or a list of all documents in the subfile, because doing so would reveal classified and privileged information. Id. Throughout this time, the FBI continued producing documents to Plaintiffs. Fourth Normand Decl., ¶¶ 30, 33-35, 37, 39. Indeed, the FBI's production is continuing. Pls. Br., at 8. The FBI has also agreed to conduct searches for documents that continue to be identified by Plaintiffs. Fourth Normand Decl., ¶ 44. On April 13, 2020, then-U.S. Attorney for the Southern District of New York Geoffrey S. Berman issued a final response to the Touhy request. Id., Ex. S. Before filing the present omnibus motion to compel, Plaintiffs filed an initial motion to compel the FBI, which the Court addressed separately. ECF No. 6159, 6510. This decision addresses Plaintiffs’ second motion to compel the FBI.

STANDARD OF REVIEW

I. The Federal Rules Provide the Appropriate Standard of Review

The Court of Appeals for the Second Circuit has left undecided whether section 706 of the Administrative Procedure Act ("APA") or the Federal Rules of Civil Procedure provides the appropriate standard of review when a challenge to a non-party agency's subpoena response is brought by a motion to compel. See U.S. Envtl. Prot. Agency. v. General Elec. Co., 212 F.3d 689, 689-90 (2d Cir. 2000) ; accord In re S.E.C. ex rel. Glotzer, 374 F.3d 184, 190 (2d Cir. 2004). Courts in this Circuit have approached this problem in different ways. At least one court has applied the APA abuse of discretion standard. See In re Sept. 11 Litig., 621 F. Supp. 2d 131, 144-45 (S.D.N.Y. 2009). Another has concluded that the APA standard...