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).
Six days after the September 11, 2001 terrorist attacks, members of the Detroit Joint Terrorism Task Force
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,
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 been disclosed under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),
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.
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. 07-cv13842, 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. 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.
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).
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 things will suddenly go his way in Michigan." Id. at 156. The court then
Convertino timely appealed.
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.
"[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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 facts] in opposition to the motion [for
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 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
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 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, 64 S.Ct. 1248, 88 L.Ed. 1542 (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.
So ordered.
FED.R.CIV.P. 56(f) (2009).