Deep Sea Fishermen's Union of the Pacific v. United States Department of Commerce

• Court: District Court, W.D. Washington
• Decided: March 31, 2023
• Docket: 2:21-cv-00452
• Status: Unknown

Opinion

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 DEEP SEA FISHERMEN'S UNION OF THE CASE NO. C21-0452-JCC PACIFIC, 10 ORDER 11 Plaintiff, v. 12 UNITED STATES DEPARTMENT OF 13 COMMERCE, et al., 14 Defendants. 15

16 This matter comes before the Court on the parties’ cross-motions for summary judgment1 17 (Dkt. Nos. 46, 58). Having thoroughly considered the briefing and the relevant record, and 18 finding oral argument unnecessary,2 the Court GRANTS Defendants’ motion (Dkt. No. 46) and 19 DENIES Plaintiff’s motion (Dkt. No. 58) for the reasons explained below. 20 In its prior order, the Court described the facts of this Freedom of Information Act 21 (“FOIA”) case and the applicable legal standards. (See generally Dkt. No. 33.) It will not repeat 22 1 Defendants contend that Plaintiff’s motion is procedurally barred, given its timing, in light of 23 the Court’s case management order. (See Dkt. No. 62 at 6–7.) But counsel’s health issues, (see Dkt. No. 63 at 5), represent extenuating circumstances and provide good cause for the Court to 24 consider Plaintiff’s motion. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th 25 Cir. 1992). On this basis, the Court chooses to do so. 2 Neither party requested oral argument pursuant to LCR 7(b)(4). (See generally Dkt. Nos. 46, 26 58, 58-1, 62.) 1 that information here. In the order, the Court partially granted judgment to Defendants. (Id. at 8.) 2 In so doing, the Court narrowed the remaining genuine issues of fact in this case, which 3 challenges the adequacy of Defendants’ search in response to Plaintiff’s FOIA request, to the 4 following: whether agency employees’ personal devices, which were not searched, contained 5 responsive records prior to September 20, 2017; whether agency cell phones, replaced and 6 erased in October 2019, before being searched, contained responsive records; and whether 7 Defendants adequately searched all other locations likely to contain responsive records. (See Dkt. 8 No. 33 at 6–8.) Defendants now present sufficient evidence on each issue to support summary 9 judgment in their favor. 10 1. Personal Devices and Agency Cell Phones 11 Defendants supported their prior motion with unrebutted evidence that it had a written 12 document retention policy in place from at least September 20, 2017 mandating ephemeral work- 13 related communications, i.e., those made through personal devices and agency cell phones, be 14 forwarded to the employees’ agency e-mail. (See id. at 6.) This would be Defendants’ primary 15 means of record retention for such communications. (Id.) Based on this, the Court found it 16 reasonably likely that Defendants would capture any communications responsive to Plaintiff’s 17 FOIA request through a later search of their e-mail accounts.3 (Id.) For this reason, the Court 18 granted summary judgment to Defendants, at least for communications made or received on 19 personal devices beginning on or after September 20, 2017. (Id.) 20 Defendants now contend that a comparable written policy was, indeed, in effect prior to 21 this date.4 (See Dkt. Nos. 48 at 2–6, 61 at 2–3.) This is supported by declarations and copies of 22

3 While the Court found Defendants’ evidence of adherence to the policy “not particularly 23 strong,” courts often assume agency employees follow such policies, absent the presentation of 24 contrary evidence. (Dkt. No. 33 at 6, see id. (citing Freedom Competitive Enter. Inst. v. Off. of Sci. and Tech. Policy, 241 F. Supp. 3d 14, 21–22 (D.D.C. 2017)).) And Plaintiff provided no 25 such evidence. (See id.) 26 4 Defendants contend that the September 2017 policy dissemination referenced in their prior summary judgment motion represented no more than an elaboration of existing policy. (See Dkt. 1 this policy, along with links to online versions. (See id. (citing Dkt. No. 48-2, 48-1, 48-3).) It is 2 further supported by evidence that the policy was broadly disseminated, that employees were 3 trained on it, and that they generally complied with it. (See id. at 4–6 (citing Dkt. No. 48-4, 48-5, 4 48-6, 48-7, 48-8).) 5 Plaintiff speculates as to which personnel received this training and how closely they 6 actually complied with it, and suggests that only through “rigorous cross-examination at trial” 7 could this be assessed. (See Dkt. No. 58-1 at 7.) This appears to be a strength of the evidence 8 argument, which is not appropriate for summary judgment. See, e.g., adidas-Am., Inc. v. Payless 9 Shoesource, Inc., 546 F. Supp. 2d 1029, 1086 (D. Or. 2008); see also City of Pomona v. SQM 10 N.A. Corp., 750 F.3d 1036, 1044 (9th Cir. 2014) (such an argument must be made to the finder 11 of fact—not a court). 12 As Plaintiff’s counsel is certainly aware, the Court must grant summary judgment to a 13 moving party who presents unrebutted evidence for which it carries the burden at trial. See 14 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Therefore, Plaintiff must present sufficient 15 non-speculative evidence such that a reasonable finder of fact could potentially find in its favor. 16 See Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir. 17 2000). Yet Plaintiff provides no such evidence. (See generally Dkt. Nos. 58, 58-1, 63.) And 18 without it, there can be no trial on the issue, and no opportunity for the cross-examination 19 Plaintiff seeks. 20 In cross-moving for partial summary judgment, Plaintiff posits that the agency’s October 21 2019 cell phone replacement was a de-facto FOIA violation, because it post-dated Plaintiff’s 22 FOIA request. (See Dkt. No. 58 at 3–5.) But this does not hold water. As described above, 23 Defendants present uncontroverted evidence that responsive communications made or received 24 before this date, if any, would have been captured through Defendants’ document retention 25 No. 46 at 5 (citing Dkt. No. 23 at 1–2).) They did not discuss this policy in earlier briefing, as 26 they did not believe it to be the subject of Plaintiff’s challenge. (See id.) 1 policy. And, as described below, Defendants present undisputed evidence of the adequacy of 2 their search of the e-mail accounts to which any messages would have been forwarded. 3 2. Search of Other Locations 4 The adequacy of Defendants’ search of non-device locations, such as e-mail archives, is 5 the remaining issue for the Court’s consideration. Unlike the last time, (see Dkt. No. 33 at 7 6 (describing the evidence Defendants presented as a “one-paragraph description of their search 7 process”)), Defendants support their motion with a declaration containing more than 70 8 paragraphs describing the search process Defendants employed to respond to Plaintiff’s FOIA 9 request. (See Dkt. Nos. 47 at 3–14.) This is more than adequate to support summary judgment on 10 this issue, particularly in light of Plaintiff’s failure to meaningfully contest it. (See generally Dkt. 11 No. 58); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) 12 (once moving party supports its motion, opposing party must put specific facts showing a 13 genuine issue for trial). 14 For the foregoing reasons, Plaintiff’s motion for partial summary judgment (Dkt. No. 58) 15 is DENIED and Defendants’ motion for summary judgment (Dkt. No. 46) is GRANTED. This 16 fully disposes of the remaining issues in this case. Therefore, Plaintiff’s complaint is 17 DISMISSED with prejudice. 18 DATED this 31st day of March 2023. A 19 20 21 John C. Coughenour 22 UNITED STATES DISTRICT JUDGE

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