Ctr. for Biological Diversity v. EPA, No. 16-175, 2017 WL 4326381 (D.D.C. Sept. 28, 2017) (Howell, J.)

Ctr. for Biological Diversity v. EPA, No. 16-175, 2017 WL 4326381 (D.D.C. Sept. 28, 2017) (Howell, J.)

Re:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

Disposition:  Requests for records concerning determination that new pesticide product, Enlist Duo, manufactured by Dow AgriSciences, would have "'no effect'" on species protected under Endangered Species Act of 1973

• Litigation Considerations, Adequacy of Search:  The court holds that "EPA's descriptions of the three searches conducted for responsive records fall short of 'demonstrat[ing] beyond material doubt that its search[es] w[ere] reasonably calculated to uncover all relevant documents.'"  "First, EPA fails to justify [its] cut-off dates for the searches."  "Second, documents disclosed by the EPA make apparent that the limited number of custodians searched . . . are not all the relevant custodians, and thus the searches likely failed to be 'reasonably calculated to uncover all relevant documents.'"  "Finally, EPA did not search instant messages, text messages, or other electronic communications."  "EPA must clarify how the subject matter experts conducted a search of these communications[]" or "must either conduct a search of these communications, or if it is unable to do so, explain how it is not feasible to search these messages for responsive material[.]"
   
• Litigation Considerations, Vaughn Index/Declarations:  The court relates that "[s]ummary judgment must be denied to EPA due to the inadequacy of the agency's search for responsive records and, consequently, resolution of other issues presented in this case may await the completion of the supplemental search."  "In order to provide guidance to the agency for completing responses to the FOIA requests at issue, however, the Court proceeds to consider the parties' arguments regarding EPA's application of Exemption 5."  The court first finds that, "[b]oth substantively and structurally, EPA's two Vaughn indices are patently insufficient."  The court finds that "[t]he two Vaughn indices submitted in this case . . . are . . . jumbled and disorganized, inspiring little confidence that EPA has adequately kept track of each withheld document or fully considered, let alone explained, the basis for withholdings."  Specifically regarding defendant's explanation as to Exemption 5, the court finds that "EPA fails to explain 'the nature of the decisionmaking authority vested in the office or person issuing the disputed document[s], and the positions in the chain of command of the parties to the documents[]'" and "has failed to sufficiently demonstrate that non-exempt material cannot be segregated from any exempt portions of the withheld documents."  The court also finds that "[t]he 'brief justifications fail[ ] to provide the Court with much of the information required to substantiate an attorney-client privilege claim.'"
   
• Litigation Considerations, Relief:  The court holds that "the undisputed factual record does not support [plaintiff's] pattern and practice claims."  The court finds that "the fact is undisputed that EPA did not completely ignore [plaintiff's] requests."  "EPA was in direct contact with [plaintiff]" and "EPA did, in fact, provide [plaintiff] with anticipated, estimated dates of completion even if EPA did not actually comply with those dates."