Cottom v. United States Department of Justice (DOJ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KIRK COTTOM,
DECISION AND ORDER
Plaintiff,
v. 	6:23-CV-6307 EAW CDH
UNITED STATES DEPARTMENT OF
JUSTICE (DOJ),
Defendant.
INTRODUCTION
Plaintiff Kirk Cottom (“Plaintiff”) alleges in this action that the United States
Department of Justice (“Defendant”) violated 5 U.S.C. § 552, known as the Freedom
of Information Act (“FOIA”). (Dkt. 1; Dkt. 9 at 1). Plaintiff has filed a motion asking
the Court to order Defendant to file a Vaughn1 index and declaration “well before the
. . . November 26, 2025 deadline” set in the Court’s August 7, 2025 Decision and
Order. (Dkt. 37 at 1-2; see Dkt. 36). For the reasons that follow, Plaintiff’s motion is
denied, but he will be permitted to file a cross-motion in response to Defendant’s
anticipated dispositive motion within 60 days of the November 26, 2025 deadline.
BACKGROUND
The Court assumes the parties’ familiarity with the factual and procedural
background of this matter for purposes of this Decision and Order. The facts and
procedure salient to the instant motion are summarized below. This matter has been
1 	Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973).
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referred to the undersigned for all non-dispositive pretrial proceedings. (See Dkt. 8;
Dkt. 25).
Plaintiff commenced this action on June 5, 2023. (Dkt. 1). On February 1, 2024,
the Court entered a scheduling order that set the deadline to file dispositive motions
and a Vaughn index or declaration for April 30, 2025. (Dkt. 21 at 1). Through
subsequent motion practice, the Court extended the deadline to file dispositive
motions and a Vaughn index or declaration to November 26, 2025. (See Dkt. 29; Dkt.
36)
On August 15, 2025, Plaintiff filed the instant motion, “ask[ing] for the Court
to [o]rder [Defendant] to [s]ubmit a Vaughn Index . . . and a declaration (sworn under
oath) describing why the claimed redactions from the released documents are legal
and justified . . . well before the Court’s November 26, 2025 deadline, in order for []
Plaintiff to finish formulating [his] motion for summary judgment[.]” (Dkt. 37 at 1-2
(emphasis omitted)). Plaintiff argues that he cannot properly prepare his anticipated
dispositive motion without the benefit of a Vaughn index and declaration. (Id.).
On August 20, 2025, Defendant filed its opposition, arguing that Plaintiff’s
motion should be denied because “a Vaughn index and declaration forms the heart of
[Defendant]’s summary judgment motion in a FOIA case” and that “it would make no
sense for [Defendant] to submit those documents well before the dispositive motions
deadline[.]” 	(Dkt. 	39 	at 	¶¶ 	13-14 	(emphasis 	and 	quotation 	omitted)). 	Instead,
Defendant requests that the Court allow Plaintiff “to file a cross-motion for summary
judgment in opposition to [Defendant]’s motion . . . within 28 days of the filing of
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[Defendant]’s summary judgment motion” pursuant to Local Rule of Civil Procedure
7(b)(2)(A). (Id. at ¶¶ 15-16).
On August 27, 2025, Defendant filed a letter advising the Court that it had
“finished its processing of Plaintiff’s FOIA request.” (Dkt. 40).
DISCUSSION
Based on the parties’ submissions, the parties agree that Plaintiff should be
permitted to review Defendant’s forthcoming Vaughn index or declaration before
being required to file a dispositive motion. (Dkt. 37 at 1; see Dkt. 39 at ¶¶ 14-16).
Their disagreement lies in whether the appropriate remedy is to require Defendant
to file the Vaughn index or declaration prior to the dispositive motion deadline
(Plaintiff’s position) or to adjust the deadline for Plaintiff to file his anticipated
dispositive motion (Defendant’s position).
Having carefully considered the parties’ arguments, and having balanced the
relevant equities, see Brennan Ctr. for Just. at N.Y. Univ. Sch. of L. v. U.S. Dep’t of
State, 300 F. Supp. 3d 540, 550 (S.D.N.Y. 2018), the Court concludes that the
appropriate course is to allow Plaintiff to file his anticipated dispositive motion after
receiving and reviewing Defendant’s Vaughn index or declaration and dispositive
motion. See generally Wiener v. F.B.I., 943 F.2d 972, 977 (9th Cir. 1991) (explaining
that the purpose of a Vaughn index “is to afford the FOIA requester a meaningful
opportunity to contest, and the district court an adequate foundation to review, the
soundness of the withholding”) (quotation omitted). However, the Court finds that
the 28-day timeline proposed by Defendant is not adequate, particularly in light of
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Plaintiff’s pro se status. See Brennan Ctr., 300 F. Supp. 3d at 550 (“It would be unfair
to allow Defendant months to prepare its case and then force Plaintiff to formulate
[his] entire case within the short time [he] would have to respond to [Defendant’s
dispositive] motion.”) (citation and original alterations omitted); see People ex rel.
Brown v. E.P.A., No. C-07-02055 JSW, 2007 WL 2470159, at *2 (N.D. Cal. Aug. 27,
2007) (same). Instead, the Court will afford Plaintiff 60 days after the November 26,
2025 deadline to file his anticipated dispositive motion.
For these reasons, the Court denies Plaintiff’s motion for an order directing
Defendant to file a Vaughn index and declaration “well before” November 26, 2025
(Dkt. 37 at 1-2), but instead grants Plaintiff leave to file a cross-motion in response
to any dispositive motion filed by Defendant within 60 days of that date.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion (Dkt. 37) is denied. However, the
Court modifies its August 7, 2025 Decision and Order (Dkt. 36) to expressly provide
that Plaintiff may file a dispositive cross-motion within 60 days of November 26,
2025, the deadline set by the Court for Defendant to file its dispositive motion and
a Vaughn index or declaration.
SO ORDERED.
________________________________
COLLEEN D. HOLLAND
United States Magistrate Judge
Dated: 	Rochester, New York
October 2, 2025
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LL	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	LEEN D HOL	L	LLA	LA	LA	L 	N	ND	ND
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