Animal Legal Def. Fund v. FDA, No. 13-17131, 2016 WL 1399332 (9th Cir. Apr. 11, 2016) (Graber, J.)

Animal Legal Def. Fund v. FDA, No. 13-17131, 2016 WL 1399332 (9th Cir. Apr. 11, 2016) (Graber, J.)

Re: Request for records concerning chicken egg production facilities

Disposition: Affirming district court's grant in part of defendant's motion for summary judgment

• Exemption 4:  The Court of Appeals for the Ninth Circuit holds that, "under our special standard of review for FOIA cases, and in view of the extensive FDA affidavits, [it] see[s] no clear error."  "The incomplete data could allow egg producers to make more accurate—if imperfect—estimates of their competitors' production capabilities and sales than they could without the redacted information."  The court explains that "[a]ccording to the experts, the redacted information was likely to cause substantial competitive harm because the competitors of the egg producers in question could use the information to form accurate estimates of each farm's or producer's rate of production and use those estimates to underbid."  The court relates that "[p]laintiff does not contest that there is actual competition in the egg-production market, and it also concedes that the redacted information could be used to estimate an egg farm's production capacity."  "The parties disagree, however, as to whether releasing the redacted information would likely cause 'substantial competitive harm' to the affected egg producers and farmers."  The court finds that "[w]hether or not releasing the requested data would create a likelihood of substantial competitive harm was subject to dispute."  "But, on this record, the district court did not clearly err in finding that disclosure of the information was likely to cause commercial undercutting."  "The FDA provided declarations that explained how the information would facilitate accurate estimates of a farm's egg-production capacities and how those estimates could facilitate undercutting."  "Although the information sought may not provide a national egg producer with every piece of information that it would consider before entering a new market, knowing the production capacity of potential competitors could make the decision of whether or not to enter a competitor's market easier."  In other words, the court explains, "the information may not afford egg producers their competitors' exact profit-per-egg statistics, the FDA need only establish, as the district court correctly noted, 'a likelihood of substantial competitive harm, not a certainty.'"
   
• Litigation Considerations, Discovery:  The Court of Appeals for the Ninth Circuit holds that "[t]he district court did not abuse its discretion by denying third-party discovery."  The court finds that "[p]laintiff's request was grounded in speculation; and allowing discovery of 'an individual farm's egg production could improperly give Plaintiff information that it could not obtain through its FOIA request.'"  "That ruling fell within the district court's range of discretion."
   
• Litigation Considerations, Pleadings:  In a concurring per curiam opinion, the Court of Appeal for the Ninth Circuit "write[s] separately to explain why [it] think[s] that [its] circuit should reconsider the standard of review that we apply to summary judgments in FOIA cases."  The court relates that "[i]n FOIA cases . . . we allow the district court to make factual findings, and we review those findings for clear error."  The court explains that "[t]hat peculiar standard means that a dispute of material fact does not necessarily defeat summary judgment."  The court states that "[d]e novo review would be consistent with our usual summary judgment standards."  "Even if we assume that the sensitive nature of documents withheld under a FOIA exemption calls for deference in some contexts, why we defer to the district court in cases such as this one – where the factual inquiry on which the summary judgment turns is one that does not depend on a review of withheld information – remains unclear."  The court states that "[i]n sum, if ordinary principles applied, summary judgment would not be appropriate because the record contains a disputed issue of material fact, and we would reverse and remand for further proceedings."  "Under our current FOIA standard, however, we must affirm."  "We urge our court to take up, en banc, the appropriate standard of review in FOIA cases."