FIRST DAY IN COURT - April 4, 2004

Here are the results of our first day in court, Monday, December 15, 2003.  

Judge Matz denied our November 6, 2003, Motion to Reconsider motion for Vaughn Index or, Alternatively, to Propound Interrogatories (written questions), and instructed us to file an amended complaint. 

Although the judge denied our motion, it isn't as bad as it might sound.

In FOIA cases, a Vaughn Index is used in lieu of discovery, like interrogatories and depositions.  A Vaughn Index is a list of the records in contention, along with the government's basis for withholding documents.  It is meant to be an inexpensive and expeditious way of defining the items to be litigated. 

We are asking for the data and calculations that were used by the NTSB and the CIA for the zoom-climb, particularly the data and calculations used for the video-animations presented on national television, and the graphs presented in the TWA-800 accident report.  Our initial complaint named only the NTSB as defendant since the CIA had responded to our FOIA request to by claiming that it used only data and conclusions provided by the NTSB.

Well, the NTSB refused to give us that information, and its initial Vaughn Index identified only a very few of the records responsive to our request.  We are at a disadvantage because we can't see the NTSB's list of documents and its filing system.  Consequently, we proposed our own Vaughn index in an Excel format, listing the 145 items that we are requesting.  Judge Matz rejected our Vaughn Index earlier at the scheduling conference, as the government hadn't provided its Vaughn index yet, and the judge considered our form of index unnecessarily complex. 

The government later submitted 530 pages of redundant documents for about 30 items that were on their own Vaughn Index, almost none of which were responsive to our FOIA request.  Furthermore, the NTSB did not admit providing the data and conclusions used by the CIA for its video-animation. 

Since neither the NTSB nor the CIA will identify the data and conclusions used for their respective video animations, we filed a second complaint (essentially a second case) naming the NTSB and the CIA.  We also then filed a motion to reconsider our Vaughn Index or, alternatively, a motion for leave to propound interrogatories, and we listed 161 proposed interrogatories.  Somehow, we must identify for the court the records held by the NTSB that we agree are in contention.

That was the motion that was denied Monday, and we were instructed to file an amendment to our second complaint (the one naming the CIA).  Judge Matz said he would then combine both complaints into one case.  The 145 items in our own Vaughn Index are restated in our First Amended Complaint, so the NTSB and CIA still must respond to the 145 items.  It is like pulling teeth to get the NTSB to identify the record in contention.

Click to go to The Civil Minutes – General, of Monday's Hearing and the resultant "First Amended Complaint".

Ray