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Weil Wins Expedited Document Production in Cold War Espionage FOIA Suit

In August 2020, Weil won an important victory in our effort, under the Freedom of Information Act (FOIA), to get our pro bono client documents dating back to the 1940s. Our client, Dr. Emily Socolov, is an historian and folklorist, and currently a Visiting Scholar at the University of Texas at Austin. She is the daughter of Judith Coplon  ̶  the first U.S. citizen convicted of espionage for the former Soviet Union. Dr. Socolov is writing a book focusing on the FBI’s surveillance and investigation of her mother, led by J. Edgar Hoover, during the Early Cold War. The FBI’s investigative wrongdoing ultimately led both the Second and D.C. Circuits to overturn her mother’s convictions, in opinions that have often been cited since.

Most of the records our client needs for her book reside in FBI case files, though a few are in the custody and control of other government agencies. Dr. Socolov, represented by the New York Civil Liberties Union, originally sought production of the records under FOIA in 2012. The FBI claimed that it had identified 15,025 pages of responsive documents. Over the next seven years, the FBI produced just 10,751 pages of heavily redacted documents to Dr. Socolov.

Weil was then retained, along with co-counsel Norman Siegel, of Siegel, Teitelbaum & Evans, to get Dr. Socolov the responsive documents to which she was entitled. On April 15, 2019, the team filed a complaint in the U.S. District Court for the Western District of Texas alleging, among other things: an incomplete search for documents; improper redactions pursuant to FOIA’s statutory exemptions; and a document production pace antithetical to FOIA’s purposes.

After Weil and co-counsel filed suit, the government informed us that the FBI had re-run its search and determined that there were actually 42,759 pages of responsive documents. The FBI agreed to process the documents, with more limited redactions, at the FBI’s standard, and frequently court-approved, rate of 500 pages per month. At that rate, Dr. Socolov would not receive the final production until 2027  ̶  15 years after filing her FOIA request and when she would be 75 years old.

The team then asked the court to override FBI procedures and order the FBI to process the documents far more quickly  ̶  a request we believe to be an issue of first impression within the Fifth Circuit. The government requested that the court allow them to continue processing documents at a rate of 500 pages per month. We sought a rate three times as fast, of 1,500 pages per month. Although a significant number of courts have recently deferred to the FBI and upheld 500-page-per-month production rates, our team identified, and urged the court to follow, a line of cases in which district courts had used their equitable powers to mandate expedited production rates.

On August 24, 2020, the court ruled in favor of our client. Notwithstanding that it found the FBI’s 500-page-per-month processing rate to be generally appropriate, the court (i) reaffirmed its authority to override agency document processing policies where appropriate, to protect the purpose and spirit of FOIA and the rights of individual FOIA requesters, and (ii) ordered the FBI to produce documents to Dr. Socolov at a rate of 1,500 pages per month, with final document production by December 31, 2022  ̶  more than four years earlier than the date the FBI had proposed.

The Weil pro bono team includes Litigation associates Ben Marcu, Jake Rutherford, Hira Baig and Ali Olsewski, and is supervised by partner Paul Genender and retired partner Irwin Warren.

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