Richard Convertino v. DOJ

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 12, 2012 Decided June 22, 2012

No. 11-5133

RICHARD G. CONVERTINO,

APPELLANT

v.

UNITED STATES DEPARTMENT OF JUSTICE

AND JONATHAN TUKEL,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:04-cv-00236)

Stephen M. Kohn argued the cause for the appellant.

David K. Colapinto entered an appearance.

Samantha L. Chaifetz, Attorney, United States

Department of Justice, argued the cause for the appellees.

Tony West, Assistant Attorney General, Ronald C. Machen

Jr., United States Attorney, Beth S. Brinkmann, Deputy

Assistant Attorney General, and Mark B. Stern, Attorney,

were on brief. R. Craig Lawrence, Assistant United States

Attorney, entered an appearance.

Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

2

Opinion for the Court filed by Circuit Judge HENDERSON.

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).1 As we explain below, we reverse and

remand the district court’s summary judgment.

I.

Six days after the September 11, 2001 terrorist attacks,

members of the Detroit Joint Terrorism Task Force2 wanted to

interview Nabil Al-Marabh, whose name was included on the

Federal Bureau of Investigation (FBI) suspected terrorist

“watch list.” Their investigation took them to a location they

thought was Al-Marabh’s residence but, instead of Al-

Marabh, the Task Force found three other men—Ahmed

Hannan, Farouk Ali-Haimoud and Karim Koubriti—living in

the apartment “as apparent transients with little or no

furniture.” Convertino v. U.S. Dep’t of Justice, 769 F. Supp.

2d 139, 141 (D.D.C. 2011) (quotation marks omitted).3 A

1

In 2010, Rule 56(f) became Rule 56(d) of the FRCP.

Following the parties’ briefs and the district court opinion, we refer

to former Rule 56(f).

2

The Task Force included, inter alia, members of the FBI, the

U.S. Bureau of Alcohol, Tobacco and Firearms, the U.S.

Immigration and Naturalization Service, the U.S. Drug

Enforcement Administration, the U.S. Internal Revenue Service and

the U.S. Customs Service. See United States v. Koubriti, 199 F.

Supp. 2d 656, 659 n.3 (E.D. Mich. 2002).

3

The undisputed facts are set forth primarily in the district

court’s order on appeal. See Convertino, 769 F. Supp. 2d at 141-44.

3

subsequent search revealed false identity documents for all

three men. The men were arrested and charged with

possession of false documents in violation of 18 U.S.C.

§§ 1028(a)(4), 1546 and 371. Assistant United States

Attorney Convertino was named to lead the prosecution.

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, Ali-Haimoud and

Koubriti—plus a fourth man, Abdel Ilah El Mardoudi—were

members of a “sleeper cell” of an international Islamic

terrorist organization. He filed superseding indictments

adding El Mardoudi as a codefendant and charging each

defendant with one count of conspiracy to provide “material

support or resources” to “terrorists” in violation of 18 U.S.C.

§§ 2339A and 371 and one count of conspiracy to commit

document fraud in violation of 18 U.S.C. §§ 1028(f), 1546

and 371. In June 2003, after a trial lasting three months, the

jury convicted three of the four Detroit Sleeper Cell

defendants of at least one count.4

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

4

Koubriti and El Mardoudi were convicted of the two

conspiracy counts. See Koubriti v. Convertino, 593 F.3d 459, 463

n.7 (6th Cir. 2010). Hannan was convicted of document fraud only.

Id. Ali-Haimoud was acquitted of all charges. Id.

4

been disclosed under Brady v. Maryland, 373 U.S. 83 (1963),5

and Giglio v. United States, 405 U.S. 150 (1972).6 A

subsequent court-ordered investigation “disclosed numerous

additional documents that had not previously been submitted

or shown to . . . the . . . defendants.” Koubriti, 593 F.3d at

463. Eventually, in September 2004, the trial court vacated

the defendants’ convictions and granted a new trial on the

document fraud counts. See United States v. Koubriti, 336 F.

Supp. 2d 676 (E.D. Mich. 2004).

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.7 DOJ’s

Office of Inspector General (OIG) subsequently began an

investigation into the source of the leaked information. See

5

In Brady, the United States Supreme Court held that due

process requires a prosecutor to disclose all evidence “favorable to

[the] accused” and “material either to guilt or to punishment.” 373

U.S. at 87.

6

In Giglio, the Court held that the prosecution’s Brady

obligation includes impeachment evidence. 405 U.S. at 154.

7

The reporter later confirmed that his source was an unnamed

DOJ employee. Ashenfelter Decl. at 1, Convertino, No. 07-cv-

13842 (E.D. Mich. Mar. 26, 2008).

5

Convertino, 769 F. Supp. 2d at 142. Ultimately, however, the

OIG was unable to pinpoint the leak. Id.8

On February 14, 2004, Convertino brought suit in the

district court here, alleging that an unidentified DOJ

employee willfully or intentionally disclosed “confidential

Privacy Act-protected information” to the reporter. Complaint

at 33, Convertino, No. 1:04-cv-00236 (D.D.C. Feb. 13,

2004).9 Discovery commenced in the spring of 2006 and was

both slow and litigious. On April 30, 2007 and May 2, 2007,

Convertino obtained subpoenas duces tecum from the United

States District Court for the Eastern District of Michigan

(Eastern District) and served them on both the Free Press

reporter and the Free Press. See Convertino, No. 2:07-cv-

13842, 2007 WL 2782039, at *1 (E.D. Mich. Sept. 24, 2007).

The subpoenas required “[the reporter] to appear for [a]

deposition concerning the identity of the source(s) for the

Free Press Article, and to produce any and all related

documents in his possession or control, and commanded the

Free Press to designate a corporate representative to do the

8

The OIG focused its investigation on “approximately [thirty]

DOJ employees” who, it believed, had access to the confidential

material referenced in the newspaper article. Convertino, 769 F.

Supp. 2d at 142 (quotation marks and citation omitted).

9

Convertino’s complaint included claims against the Attorney

General and various individual DOJ employees, alleging violations

of the Privacy Act, 5 U.S.C. §§ 552a et seq., the First Amendment,

the Administrative Procedure Act, 5 U.S.C. §§ 704 et seq., and the

Lloyd-LaFollette Act, 5 U.S.C. § 7211. See generally Complaint,

Convertino, No. 1:04-cv-00236 (D.D.C. Feb. 14, 2004). In October

2005, the district court dismissed all of Convertino’s claims except

his Privacy Act claim against DOJ, see Convertino v. U.S. Dep't of

Justice, 393 F. Supp. 2d 42 (D.D.C. 2005), which is the only claim

before us.

6

same.” Id. (quotation marks omitted). Neither party complied.

Convertino then moved in the Eastern District to compel their

compliance. See Plaintiff’s Mot. to Compel Ashenfelter and

the Free Press, Convertino, No. 2:07-cv-13842 (E.D. Mich.

July 6, 2007).

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. 2:07-cv-

13842, 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.

7

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. Convertino

moved for reconsideration on the “ground[] that [the reporter]

waived any Fifth Amendment privilege he had as to the

identity of his source(s).” Supplemental Br. in Supp. of Arg.

that Ashenfelter Waived Any Fifth Amend. Privilege at 1,

Convertino, No. 2:07-cv-13842 (E.D. Mich. May 5, 2009).

The Eastern District denied that motion. Op. and Order

Denying Plaintiff’s Mot. for Recon., Convertino, No. 2:07-cv-

13842 (E.D. Mich. Feb. 9, 2010). At the same time,

Convertino renewed his motion to compel the Free Press,

Pl.’s Renewed Mot. to Compel Produc. from the Free Press,

Convertino, No. 2:07-cv-13842 (E.D. Mich. Apr. 29, 2009).10

The latter motion remains pending in the Eastern District,

where the discovery proceedings are being held in abeyance

pending this appeal. See Order Holding Proceedings in

Abeyance, Convertino, No. 2:07-cv-13842 (E.D. Mich. Apr.

15, 2011).

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).11

10

Convertino also asked DOJ to grant the reporter immunity

“from any potential prosecution related to the OPR leak or the

January 17, 2004 article” but received no response. Kohn Aff. at 4.

11

The district court ordered that “Defendant’s motion for

summary judgment shall be filed by the latter of July 12, 2010, or

60 days after the Court’s ruling on Plaintiff’s pending motion to

compel production of documents.” See Order at 2, Convertino, No.

8

When the July 12, 2010 deadline arrived and Convertino had

yet to discover the source of the DOJ leak, DOJ moved for

summary judgment. Def.’s Mot. for Summ. J., Convertino,

No. 1:04-cv-00236 (D.D.C. July 12, 2010). DOJ argued that

Convertino could not establish a prima facie violation of the

Privacy Act because, without knowing the source’s identity,

he could not establish the source’s state of mind. Mem. in

Supp. of Def.’s Mot. for Summ. J. at 47, Convertino, No.

1:04-cv-00236 (D.D.C. July 12, 2010) (“To establish the

requisite intent, Convertino must introduce evidence

concerning the state of mind of the particular individual(s)

who actually disclosed the information . . . .”). Convertino

cross-moved for a stay under Rule 56(f) on the ground that he

was pursuing discovery to learn the source’s identity from the

Free Press in the Eastern District. Mot. for Stay to Depose

Key Witnesses, Convertino, No. 1:04-cv-00236 (D.D.C. Oct.

18, 2010). He stated that he “fully intends to appeal the

Eastern District[’s] [] ruling on the 5th Amendment issue” in

the event his motion to compel the Free Press was finally

denied. Pl.’s Mem. in Supp. of Mot. for Stay at 4, Convertino,

No. 1:04-cv-00236 (D.D.C. Oct. 18, 2010).

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

1:04-cv-00236 (D.D.C. Dec. 7, 2009). Three days later, the court

denied Convertino’s motion to compel production. See Order,

Convertino, No. 1:04-cv-00236 (D.D.C. Dec. 10, 2009).

9

things will suddenly go his way in Michigan.” Id. at 156. The

court then assured Convertino that, “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.” Id.

Convertino timely appealed.

II.

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.12

12

Rule 56(f) provides:

If a party opposing the motion shows by affidavit that, for

specified reasons, it cannot present facts essential to justify

its opposition, the court may:

(1) deny the motion;

10

“[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 (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

(2) order a continuance to enable affidavits to be

obtained, depositions to be taken, or other discovery to be

undertaken; or

(3) issue any other just order.

FED. R. CIV. P. 56(f) (2009).

11

facts] in opposition to the motion [for summary judgment].”

Carpenter v. Fed. Nat’l Mortg. Ass’n, 174 F.3d 231, 237

(D.C. Cir. 1999); see also Berkeley, 68 F.3d at 1414

(“Notwithstanding the usual generous approach toward

granting Rule 56(f) motions, the rule is not properly invoked

to relieve counsel’s lack of diligence.”); Wichita Falls Office

Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir. 1992)

(“[T]he trial court need not aid [a party] who ha[s] occasioned

[its] own predicament through sloth.”). Third, it must show

the information is in fact discoverable. Messina v. Krakower,

439 F.3d 755, 762 (D.C. Cir. 2006) (“We will not find an

abuse of discretion where the requesting party has offered

only a conclusory assertion without any supporting facts to

justify the proposition that the discovery sought will produce

the evidence required.” (internal quotation marks omitted)).

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

12

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 will appeal the Eastern

District’s decision to sustain Mr. Ashenfelter’s claim of Fifth

Amendment privilege.”).

13

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

14

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 (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.13

Considering the “generous approach” the district court

should take in deciding a Rule 56(f) motion, Berkeley, 68

F.3d at 1414, the district court’s mistaken view that

Convertino could continue to seek discovery in the Eastern

13

We also note that the discovery delays in Convertino’s pursuit

of his Privacy Act claim have not occurred because of his

action/inaction. See Resolution Trust, 22 F.3d at 1208-09 (district

court abused discretion in denying Rule 56(f) motion when most of

delay attributable to opposing party).

15

District notwithstanding the termination of Convertino’s

Privacy Act litigation and the “monumental” efforts

Convertino has taken to discover the needed information,

Convertino, 769 F. Supp. 2d at 144, we believe the district

court committed an abuse of discretion in denying

Convertino’s Rule 56(f) motion. Accordingly, we reverse the

district court’s judgment and remand the case for further

proceedings consistent with this opinion.

So ordered.