CHURCH OF SCIENTOLOGY OF BOSTON, Plaintiff,

                                       v.

                      INTERNAL REVENUE SERVICE, Defendant.

                             Civ. A. No. 90-11069-N.

                          United States District Court,

                                D. Massachusetts.

                                 July 16, 1991.

  Agency that had been sued under Freedom of Information Act filed motions for

 order staying deposition and for protective order pending resolution of its

 motion for summary judgment.  The District Court, Marianne B. Bowler, United

 States Magistrate Judge, held that plaintiff could not claim existence of

 factual dispute that would necessitate further discovery until agency released

 or failed to release documents in question and filed dispositive summary

 judgment motion.

  Motions allowed.



 [1] FEDERAL CIVIL PROCEDURE

 Discovery pursuant to Freedom of Information Act is limited to certain factual

 issues, including scope of agency's search and its indexing and classification

 procedures.  5 U.S.C.A. s 552.



 [2] FEDERAL CIVIL PROCEDURE

 Plaintiff in suit under Freedom of Information Act could not claim existence of

 factual dispute that would necessitate further discovery until agency released

 or failed to release documents in question and filed dispositive summary

 judgment motion, notwithstanding plaintiff's contention that discovery had been

 ongoing and that further discovery was only means by which agency could be

 required to produce documents.  5 U.S.C.A. s 552.

  *201 Earle C. Cooley, Cooley, Manion, Moore & Jones, Boston, Mass., Laurie

 Bartilson, Bowles & Moxon, Hollywood, Cal., for plaintiff.

  Michael J. Martineau, Harry J. Giacometti, U.S. Dept. of Justice, Washington,

 D.C., for defendant.

 ORDER RE:  DEFENDANT'S MOTION FOR ORDER STAYING DEPOSITION (DOCKET ENTRY # 57)

         and DEFENDANT'S MOTION FOR PROTECTIVE ORDER (DOCKET ENTRY # 58)



  MARIANNE B. BOWLER, United States Magistrate Judge.

  The defendant has filed two motions:  (1) Motion for Order Staying

 Deposition (Docket Entry # 57);  and (2) Motion For Protective Order (Docket

 Entry # 58).  The defendant, Internal Revenue Service ("IRS"), contends, in

 support of the motions in question, that further discovery should be stayed

 until the court rules on the defendant's motion for summary judgment. [FN1]

 The defendant claims, further, that the plaintiffs will not have the knowledge

 necessary to determine the existence of a factual dispute with respect to

 release of the proper documents until such time as the court rules on the

 defendant's motion for summary judgment.



      FN1. The IRS argued that it has not yet filed the summary judgment motion

     in question, because it is still in the process of determining which of the

     3000 documents at issue are to be released pursuant to the order of this

     court dated March 11, 1991.  The IRS is, accordingly, Ordered to file its

     motion for summary judgment on or before October 16, 1991.



  The plaintiff opposes the defendant's motions, arguing that further discovery

 should be allowed.  The plaintiff claims, in support of its opposition, that

 discovery has been ongoing as evidenced by the defendant's *202 production

 of a Vaughn index and the taking of at least one deposition.  As such, the

 plaintiff argues that factual disputes exist with respect to what documents the

 defendant should be required to produce, and that further discovery is the only

 means by which the defendant can be required to produce the documents in

 question.

                                   DISCUSSION

  [1] Discovery pursuant to the Freedom of Information Act ("FOIA") is limited

 to certain factual issues, including the scope of the agency's search, its

 indexing and classification procedures.  5 U.S.C. s 552;  see Murphy v.

 F.B.I., 490 F.Supp. 1134, 1135 (D.D.C.1980) (discussing issue of discovery

 under FOIA).

  [2] Numerous courts have held that such factual issues generally arise after

 a party has filed a motion for summary judgment.  See id. at 1136 (granting

 protective order in FOIA action where notice of deposition was premature and

 government had not prepared answer);  Weisberg v. Department of Justice, 543

 F.2d 308, 310 (D.C.Cir.1976) (factual dispute arising after government

 responded to plaintiff's FOIA request).  The court in Murphy solidified the

 principle that discovery in FOIA actions is permissible insofar as it concerns

 a factual issue with respect to the adequacy of the government search and

 index.  Murphy v. F.B.I., 490 F.Supp. at 1137.  The Murphy court

 concluded, however, that such factual issues can develop only at a time

 subsequent to a party's filing of a dispositive motion.  Id.  In fact,

 courts have consistently allowed discovery where a factual issue came to

 fruition subsequent to the filing of a summary judgment motion.  See

 Weisberg v. Department of Justice, 543 F.2d at 310 (permitting discovery

 subsequent to consideration of motion for summary judgment);  Schaffer v.

 Kissinger, 505 F.2d 389, 391 (D.C.Cir.1974) (allowing discovery as to whether

 reports were classified subsequent to consideration of motion for summary

 judgment).

  In the present action, the IRS is immersed in the process of determining

 which documents it believes are protected against release.  The IRS has already

 released numerous documents pursuant to the original FOIA request by the

 plaintiff, and limited discovery has occurred as a result of the alleged

 inadequacy of the original search.  It is the position of this court, however,

 that the plaintiff cannot claim the existence of a factual dispute which would

 necessitate further discovery until such time as the IRS releases or does not

 release the documents in question and files a dispositive summary judgment

 motion.

                                   CONCLUSION

  Defendant's Motion for Order Staying Deposition (Docket Entry # 57) and Motion

 For Protective Order (Docket Entry # 58) are, accordingly, ALLOWED to the

 extent that no discovery shall be taken until such time as the court reviews

 the government's motion for summary judgment.  In addition, as stated above,

 the government is Ordered to file its motion for summary judgment on or before

 October 16, 1991.