Deep Sea Fishermen's Union of the Pac. v. U.S. Dep't of Com., No. 21-0452, 2022 WL 2072985 (W.D. Wash. June 9, 2022) (Coughenour, J.)

Deep Sea Fishermen's Union of the Pac. v. U.S. Dep't of Com., No. 21-0452, 2022 WL 2072985 (W.D. Wash. June 9, 2022) (Coughenour, J.)

Re:  Request for records related to the North Pacific Observer Program

Disposition:  Denying plaintiff's motion to compel; granting in part and denying in part defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "Defendants establish that, as of September 20, 2017, [the National Oceanic and Atmospheric Administration] (NOAA) had a written policy that, if followed, would have resulted in [d]efendants' email searches capturing any responsive text messages from personal devices."  "Courts presume that agency employees follow such policies absent evidence to the contrary, and such evidence must be more than mere speculation."  "Although [d]efendants' evidence of adherence to this policy is not particularly strong, the only evidence that anyone deviated from it—i.e., someone saw Mr. Merrill using his personal phone at a meeting . . . is wholly speculative."  "Plaintiff thus fails to rebut the presumption that NOAA employees complied with the policy."  "Accordingly, the Court GRANTS summary judgment that [d]efendants adequately searched personal cell phones for records dated September 20, 2017, or later." 
  
  "But summary judgment is otherwise DENIED as to the adequacy of [d]efendants' search."  "Plaintiff's FOIA request expressly relates to pre-September 2017 documents."  "Before that date, there was no device-usage policy for the Court to presume that the agency followed."  "Nor does [d]efendants' one-paragraph description of their search process explain why they searched the places they did, whether those places were the ones most likely to contain responsive records, or even when the searches happened."
  
  "Defendants also admit that they erased the memories of agency cell phones (as opposed to personal ones) in October 2019, more than a year after [p]laintiff's FOIA request, while document collection and production was apparently ongoing."  "While an agency cannot be faulted for destroying records pursuant to its normal retention policy, once it receives a FOIA request implicating the records, it has a duty to preserve them." 
  
  "[A]bsent some evidence that agency cell phones would not have contained responsive records and that the only places that would have were likely the ones [d]efendants searched, they cannot carry their initial burden to show absence of a genuine dispute about the adequacy of the search."