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Electronic Frontier Foundation v. Department of Defense

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION


December 6, 2011

ELECTRONIC FRONTIER FOUNDATION,
PLAINTIFF,
v.
DEPARTMENT OF DEFENSE, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Hon. Susan Ilston United States District Judge

TONY WEST Assistant Attorney General MELINDA L. HAAG United States Attorney JOHN TYLER Assistant Branch Director KIMBERLY L. HERB Illinois Bar No. 6296725 Trial Attorney Civil Division, Federal Programs Branch U.S. Department of Justice P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 305-8356 Facsimile: (202) 616-8470 Attorneys for DEFENDANTS

STIPULATION AND [PROPOSED] ORDER TO AMEND BRIEFING SCHEDULE

Pursuant to Federal Rule of Civil Procedure 6(b)(1) and Civil L.R. 6-2, Plaintiff Electronic Frontier Foundation ("EFF") and Defendants Department of Justice, Criminal Division; U.S. Secret 3 Service; Federal Bureau Investigation; and Department of Homeland Security (collectively 4 "Defendants") hereby stipulate to and respectfully request that this Court extend the briefing 5 schedule for the filing of the parties' reply briefs related to their dispositive motions. Defendants 6 requested the revisions to the briefing schedule due to the illness of Defendants' counsel. 7

1. Defendants submit that the Declaration of Kimberly L. Herb establishes good cause for the requested enlargement as follows:

a. On September 22, 2011, the parties filed a stipulation proposing the following dates for briefing on the parties dispositive motions: Defendants file their motion for summary judgment on October 21, 2011; EFF files its opposition and cross-motion on November 18, 2011; Defendants file their reply and opposition to EFF's cross- motion on December 2, 2011; EFF files its reply to its cross- motion on December 16, 2011; the Court holds a hearing on the parties' dispositive motions on January 13, 2012. The Court granted the parties' stipulation on September 27, 2011. (Dkt. 54.)

b. Defendants filed their motion for summary judgment on October 21, 2011. (Dkt. 55.) EFF filed its opposition to Defendants' motion and cross moved for summary judgment on November 17, 2011. (Dkt. 56.)

c. Counsel for Defendants became ill on November 21, 2011 with respiratory and sinus infections. She has been out of the office for much of the last ten days due to illness and reactions to medication. As a result, she has not had adequate time to prepare Defendants' reply brief and requested that EFF grant an extension of the briefing schedule.

d. On December 1, 2011, defense counsel conferred with EFF's counsel regarding the briefing schedule for the parties' reply brief related to their dispositive motions. The parties agreed to revise the briefing schedule as follows: Defendants file their reply brief in support of Defendants' motion for summary judgment and opposition to EFF's cross-motion for summary judgment on December 16, 2011; EFF files its reply for its cross-motion on January 6, 2012; the Court holds a hearing on the 3 parties' dispositive motions on January 20, 2012.

2. While the requested enlargement will affect the present briefing schedule for this case, 5 the parties believe a short extension of the briefing schedule is warranted given the 6 circumstances. Furthermore, the parties believe this case will be resolved on summary 7 judgment, and thus this case can be resolved expeditiously after the filing of the parties' 8 motions.

The parties respectfully request that the Court extend the briefing schedule for the filing of the parties' dispositive motions such that they may be filed as discussed in paragraph 1(d) above.

GENERAL ORDER NO. 45(X) CERTIFICATION I attest that I have obtained Jennifer Lynch's concurrence in the filing of this document. /s/ Kimberly L. Herb

Kimberly L. Herb

PURSUANT TO STIPULATION, IT IS SO ORDERED. 22 23

TONY WEST Assistant Attorney General 2 MELINDA L. HAAG United States Attorney 3 JOHN TYLER Assistant Branch Director 4 KIMBERLY L. HERB Illinois Bar No. 6296725 5 Trial Attorney Civil Division, Federal Programs Branch 6 U.S. Department of Justice P.O. Box 883 7 Washington, D.C. 20044 Telephone: (202) 305-8356 8 Facsimile: (202) 616-8470 9 Attorneys for DEFENDANTS 10

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 11 SAN FRANCISCO DIVISION

ELECTRONIC FRONTIER FOUNDATION, 15 Plaintiff, DECLARATION OF KIMBERLY L. 16 v. HERB IN SUPPORT OF STIPULATION TO AMEND BRIEFING SCHEDULE DEPARTMENT OF DEFENSE, et al., 18 Defendants.

Case No. CV 09-5640 SI

I, Kimberly L. Herb, hereby declare as follows: 22

1. I am a Trial Attorney in the Federal Programs Branch, Civil Division of the United

23

States Department of Justice. I am lead counsel and represent Defendants in this case. 24 2. On September 22, 2011, the parties filed a stipulation proposing the following 25 dates for briefing on the parties dispositive motions: Defendants file their motion for summary 26 judgment on October 21, 2011; EFF files its opposition and cross-motion on November 18, 2011; 27 Defendants file their reply and opposition to EFF's cross-motion on December 2, 2011; EFF files 28 its reply to its cross- motion on December 16, 2011; the Court holds a hearing on the parties' 2 dispositive motions on January 13, 2012. The Court granted the parties' stipulation on September 3 27, 2011. (Dkt. 54.) 4

5 3. Defendants filed their motion for summary judgment on October 21, 2011. (Dkt. 55.) EFF filed its opposition to Defendants' motion and cross moved for summary judgment on 6 November 17, 2011. (Dkt. 56.) 7

8 been out of the office for much of the last ten days due to illness and reactions to medication. As 9 a result, I have not had adequate time to prepare Defendants' reply brief and requested that EFF 10 grant an extension of the briefing schedule. 11 12 the briefing schedule for the parties' reply briefs related to their dispositive motions. The parties 13 agreed to revise the briefing schedule as follows: Defendants file their reply brief in support of 14 Defendants' motion for summary judgment and opposition to EFF's cross-motion for summary 15 judgment on December 16, 2011; EFF files its reply for its cross-motion on January 6, 2012; the 16 Court holds a hearing on the parties' dispositive motions on January 20, 2012.

4. I became ill on November 21, 2011 with respiratory and sinus infections. I have 5. On December 1, 2011, defense counsel conferred with EFF's counsel regarding 6. To date, there have been seven time modifications in this case: a. On June 10, 2010, the parties filed a stipulation and proposed order requesting that the Court change the time for the filing of dispositive motions, which the Court granted on July 6, 2010.

b. On July 9, 2010, the parties filed a Joint Case Management Statement and appeared for the Case Management Conference on July 16, 2010. At that time the parties informed the court that they planned to meet and confer by August 31, 2010 to determine the issues remaining in this action and to propose a timeline for the resolution of those issues. The parties met again on August 30, 2010 and discussed a tentative motion schedule as well as Defendant Department of Justice Criminal Division's final document production, scheduled for September 30, 2010. Because Plaintiff needed time to review Defendant's final disclosures, on September 3, 2010, the parties filed a stipulation and proposed order to continue the Case Management Conference. The Court granted the motion on September 8, 2010 and continued the Case Management Conference to October 26, 2010.

c. On October 19, 2011, the parties filed a stipulation and proposed order to continue the Case Management Conference because the parties had submitted a proposed schedule for resolution of the case. The Court granted the motion on October 21, 2010 and continued the Case Management Conference to January 14, 2011. d. On January 7, 2011, the parties filed a stipulation and proposed order to change the time of the Case Management Conference from January 14, 2011 to January 28, 2011. EFF had filed a motion to consolidate the present action with a related case, and the motion was scheduled for a hearing on January 28, 2011. The parties' stipulation sought to consolidate the hearing with the Case Management Conference. The Court granted the parties' stipulation on January 10, 2011.

e. On January 27, 2011, the parties filed a stipulation and proposed order to change the time of the Case Management Conference from January 28, 2011 to February 25, 2011. The Court granted EFF's motion to consolidate and ordered the parties to confer regarding a briefing schedule for the filing of dispositive motions in the consolidated action. The parties sought to continue the Case Management Conference so that they could negotiate the briefing schedule. The Court granted the parties' stipulation on January 28, 2011. f. On February 25, 2011, during the Case Management Conference, the parties presented the Court with a joint proposed briefing schedule for the filing of dispositive motions. The proposed briefing schedule amended an earlier schedule for the filing of such motions and was necessitated by the Court's order consolidating cases. The Court granted the parties' joint briefing schedule on March 1, 2011.

3 g. On September 22, 2011, the parties stipulated to extend the briefing schedule 4 for the filing of dispositive motions due to the unavailability of counsel for one 5 of the defendant agencies. The Court granted the parties' stipulation on 6 September 27, 2011.

7 7. While the requested enlargement will affect the present briefing schedule for this 8 9 case, the parties believe a short extension of the briefing schedule is warranted given the 10 circumstances. Furthermore, the parties believe this case will be resolved on summary judgment, 11 and thus this case can be resolved expeditiously after the filing of the parties' motions. 12 13 14 I declare under penalty of perjury that the foregoing is true and correct. Executed in Washington, DC on December 1, 2011. 16

Kimberly L. Herb

Kimberly L. Herb

20111206

© 1992-2011 VersusLaw Inc.



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