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Case TitleDavis Wright Tremaine LLP v. United States Customs and Border Protection
DistrictWestern District of Washington
CitySeattle
Case Number2:2019cv00334
Date Filed2019-03-06
Date ClosedOpen
JudgeJudge Ricardo S. Martinez
PlaintiffDavis Wright Tremaine LLP
Case DescriptionThe law firm of Davis Wright Tremaine submitted a FOIA request to U.S. Customs and Border Protection for records concerning its policy of banning Canadians involved in the cannabis industry from entering the United States. The agency acknowledged receipt of the request, but after hearing nothing further from the agency, the law firm filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantUnited States Customs and Border Protection
Documents
Docket
Complaint
Complaint attachment 1
Opinion/Order [13]
Opinion/Order [17]
Opinion/Order [21]
Opinion/Order [27]
Opinion/Order [36]
Opinion/Order [38]
Opinion/Order [41]
FOIA Project Annotation: A federal court in Washington has ruled that U.S. Customs and Border Protection has failed to show that it conducted an adequate search for records responsive to two FOIA requests submitted by the law firm of Davis Wright Tremaine pertaining to the agency's decision to classify foreign nationals who worked in the legalized cannabis industry in Canada or the United States as drug traffickers. When the agency had still failed to respond five months after submitting the requests, the law firm filed suit. The agency then began by searching the Seattle Office of Field Operations as well as the national OFO using key words referring to cannabis legalization. The agency later searched another database " the Enforcement Programs Division and Admissibility and Passenger Programs " using keywords pertaining to Canadian legalization of cannabis. A further search was conducted of the agency's Office of Public Affairs and the Office of Training Development. The agency ultimately located 116 pages. Addressing the adequacy of the agency's searches, District Court Judge Ricardo Martinez noted that "on first look, and afforded the presumption of good faith, CBP's evidence appears to paint a clear picture of a reasonable and comprehensive response to Plaintiff's requests. However, the details are far hazier. Drawing reasonable inferences in favor of Plaintiff, the Court is left with too many questions to find that CBP's search was reasonable and adequate as a matter of law." Martinez questioned the agency's decision not to search various component offices. He indicated that the agency's affidavits "do not adequately establish that CBP searched for 'all relevant documents. [The declarant] testifies only that OFO was the office 'most likely to 'maintain' responsive records. CBP does not establish that other component officers were unlikely to possess responsive records." Martinez observed that "the Court in unable to see why discovery of a single document created by a different component office makes it less likely that the office will have other nonduplicative and relevant records." He noted that "drawing presumptions in Plaintiff's favor, it was unreasonable to not search additional component offices." Martinez explained that the agency had not met its burden of showing that its searches were reasonable. He pointed out that "while perhaps not explicitly CBP's burden to bear, CBP provides no indication of why further searches were unreasonable. CBP give no indication of the volume of requests it handles, no indication of the volume of relevant records requiring processing on these requests, no indication of the time spent responding to Plaintiff's requests, no indications that it would not have been reasonable to do more, and no indication that further searches would have interfered with CBP's operation." He pointed out that the fact that CBP used inconsistent search terms "leads to an unfortunate appearance of an agency hand-picking the documents to provide. FOIA expects more than ad-hoc searching by whichever individual is left holding the bag. From afar, CBP's actions appear intended to obfuscate and delay and leave the disturbing impression that CBP has spent more time opposing any disclosure than it has searching for responsive records." Martinez agreed with Davis Wright Tremaine that the agency had improperly limited its email search to two email accounts. He observed that "CBP does nothing to indicate that responsive records were unlikely to be found in the email accounts of its other 60,000 employees."
Issues: Adequacy - Search
Opinion/Order [52]
User-contributed Documents
 001-1 Summons
002 Issued Summons
003 Notice to Filer
004 Civil Cover Sheet
005 Plaint. Corporate Disclosure
006 Order RE Disc., JSU, Early Settlement
007 Gov't Notice of Appearance
008 Stip. Motion, Initial Disclosures, Joint Status Report
009 Granted Motion RE: Stip. for Relief
010 Joint Status Report and Stipulation
011 Order RE Joint Status Report, Stipulation
012 Joint Status Report, Stipulations
013 Order RE Joint Status Report, Stipulation
014 Joint Status Report and Stipulation
015 Joint Status Report, Stipulation
016 Proposed Joint Status Report, Stipulation
017 Order RE Joint Status Report, Stipulation
018 Joint Status Report, Stipulation
019 Gov't Answer to Plaintiff's Complaint
020 Harris Notice of Appearance
021 Joint Status Report, Stipulation
022 Stipulation RE MSJ Brief Schedule
023 Stipulation, Order RE MSJ Brief Schedule
024 Plaintiff's MSJ
025 Morley Decl. ISO Plaintiff's MSJ
026 Joint Stipulation RE MSJ Brief Schedule
027 Order RE Joint Stipulation, MSJ Brief Schedule
028 Gov't Opp. RE Plaintiff's MSJ, x-MSJ
029 Howard Decl. ISO Gov't x-MSJ
030 Gov't Proposed Order RE MSJs
031 Praecipe RE Gov't's Proposed Order
032 Plaint. Reply ISO MSJ, Response to x-MSJ.pdf
033 Gov't Reply ISO MSJ
034 Howard Decl. 2 ISO Gov't MSJ
035 Lambert Notice of Appearance for Gov't
036 Order RE x-MSJs Deny Gov't, Grant and Deny Plaint.
037 Stip. Motion, Proposed Order to Extend Deadlines
038 Order RE Stip. Motion to Extend Deadlines
039 Joint Status Report, Proposed Order
040 Owen Decl. RE Joint Status Report
041 Order RE Joint Status Report
042 Plaintiff's Status Report
043 Gov't Status Report, Exhibits
044 Howard Decl. 3 ISO Gov't
045 Plaintiff's Motion to Show Cause
046 Morley Decl. ISO Motion to Show Cause, Exhibits
047 Gov't Opp. to Motion to Show Cause
048 Howard Decl. 4 ISO Opp. to Motion to Show Cause
049 Fairchild Decl. ISO Opp. to Motion to Show Cause
050 Plaintiff's Reply to Motion to Show Cause
051 Morley Decl. ISO Reply to Motion to Show Cause
Docket Events (Hide)
Date FiledDoc #Docket Text

2019-03-061COMPLAINT against defendant(s) United States Customs and Border Protection (Receipt # 0981-5678165) Attorney Christopher C. Morley added to party Davis Wright Tremaine LLP(pty:pla), filed by Davis Wright Tremaine LLP. (Attachments: # 1 Summons)(Morley, Christopher) (Entered: 03/06/2019)
2019-03-07Judge Ricardo S. Martinez added. (GT) (Entered: 03/07/2019)
2019-03-072Summons Electronically Issued as to defendant United States Customs and Border Protection (GT) (Entered: 03/07/2019)
2019-03-07NOTICE Pursuant to Fed.R.Civ.P 7.1, Plaintiff(s) must file a Corporate Disclosure Statement by 3/14/2019. (GT) (Entered: 03/07/2019)
2019-03-073NOTICE TO FILER: re 1 Complaint,. Notice of Filing Deficiency ** Action Required ** See Attached Letter for More Information and Instructions. (GT) (Entered: 03/07/2019)
2019-03-074CIVIL COVER SHEET re 1 Complaint, ; filed by Plaintiff Davis Wright Tremaine LLP. (Morley, Christopher) (Entered: 03/07/2019)
2019-03-135CORPORATE DISCLOSURE STATEMENT indicating no Corporate Parents and/or Affiliates. Filed pursuant to Fed.R.Civ.P 7.1. Filed by Davis Wright Tremaine LLP (Morley, Christopher) (Entered: 03/13/2019)
2019-03-226ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT Joint Status Report due by 5/3/2019, FRCP 26f Conference Deadline is 4/19/2019, Initial Disclosure Deadline is 4/26/2019, by Judge Ricardo S. Martinez. (LW) (Entered: 03/22/2019)
2019-03-227NOTICE of Appearance by attorney Katie Denise Fairchild on behalf of Defendant United States Customs and Border Protection. (Fairchild, Katie) (Entered: 03/22/2019)
2019-04-118Stipulated MOTION for Relief of 26(f) Conference, Initial Disclosures, and Joint Status Report , filed by Defendant United States Customs and Border Protection. Noting Date 4/11/2019, (Fairchild, Katie) (Entered: 04/11/2019)
2019-04-159ORDER granting parties' 8 Stipulated Motion for Relief of 26(f) Conference, Initial Disclosures, and Joint Status Report. Joint Status Report due by 5/27/2019. Signed by Judge Ricardo S. Martinez.(LW) (Entered: 04/15/2019)
2019-05-2810JOINT STATUS REPORT signed by all parties estimated Trial Days: 3. (McKay, John) (Entered: 05/28/2019)
2019-05-3111STIPULATION AND ORDER re parties' 10 Joint Status Report and Stipulation. Joint Status Report due by 6/28/2019. Signed by Judge Ricardo S. Martinez. (LW) (Entered: 05/31/2019)
2019-06-2812JOINT STATUS REPORT signed by all parties estimated Trial Days: 3. (Fairchild, Katie) (Entered: 06/28/2019)
2019-07-0113STIPULATION AND ORDER re: parties' 12 Joint Status Report and Stipulation. Joint Status Report due by 7/26/2019. Signed by Judge Ricardo S. Martinez. (PM) (Entered: 07/01/2019)
2019-07-2614Joint STATUS REPORT and Stipulation by Defendant United States Customs and Border Protection (Fairchild, Katie) (Entered: 07/26/2019)
2019-07-2615STIPULATION AND ORDER re: parties' 14 Joint Status Report and Stipulation. Joint Status Report due by 9/27/2019. Signed by Judge Ricardo S. Martinez. (PM) (Entered: 07/26/2019)
2019-09-2716STIPULATION AND PROPOSED ORDER by parties (Fairchild, Katie) (Entered: 09/27/2019)
2019-10-0117JOINT STATUS REPORT AND STIPULATION AND ORDER re parties' 16 Stipulation. The parties intend to continue discussions regarding what issues may remain in this case. The parties propose to file an update with the Court on or before October 28, 2019 that, if necessary, will include a proposed deadline for CBP's responsive pleading. Signed by Judge Ricardo S. Martinez. (TH) (Entered: 10/01/2019)
2019-10-2818JOINT STATUS REPORT signed by all parties (Fairchild, Katie) (Entered: 10/28/2019)
2019-10-2819ANSWER to 1 Complaint, by United States Customs and Border Protection.(Fairchild, Katie) (Entered: 10/28/2019)
2019-11-0120NOTICE of Appearance by attorney Jordan C Harris on behalf of Plaintiff Davis Wright Tremaine LLP. (Harris, Jordan) (Entered: 11/01/2019)
2019-11-0121JOINT STATUS REPORT AND STIPULATION AND ORDER re 18 Joint Status Report. The parties intend to continue discussions regarding what issues may remain in this case. The parties propose to file a proposed summary judgment briefing schedule within 90 days of this Court's order if they are not able to otherwise resolve this matter. Signed by Judge Ricardo S. Martinez. (PM) (Entered: 11/01/2019)
2020-01-3022Joint Stipulated MOTION , filed by Defendant United States Customs and Border Protection. Noting Date 1/30/2020, (Fairchild, Katie) (Entered: 01/30/2020)
2020-02-0323STIPULATION AND ORDER re parties' 22 Stipulated Motion. By February 6, 2020, Plaintiff will file a motion for summary judgment to be noted for consideration on March 20, 2010. By March 6, 2020, Defendant will file a joint response to Plaintiffs motion and cross-motion for summary judgment. By March 13, 2020, Plaintiff will file a joint reply in support of its motion and oppositionto Defendant's cross-motion. By March 20, 2020, Defendant will file a reply in support of its cross-motion. Signed by Judge Ricardo S. Martinez. (TH) (Entered: 02/03/2020)
2020-02-0324MOTION for Summary Judgment , filed by Plaintiff Davis Wright Tremaine LLP. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 3/20/2020, (Morley, Christopher) (Entered: 02/03/2020)
2020-02-0325DECLARATION of Christopher C Morley filed by Plaintiff Davis Wright Tremaine LLP re 24 MOTION for Summary Judgment (Attachments: # 1 Exhibit 1-5, # 2 Exhibit 6-10, # 3 Exhibit 11-15, # 4 Exhibit 16-20, # 5 Exhibit 21-25, # 6 Exhibit 26-30, # 7 Exhibit 31-35, # 8 Exhibit 36-40)(Morley, Christopher) (Entered: 02/03/2020)
2020-03-0526Stipulated MOTION , filed by Defendant United States Customs and Border Protection. Noting Date 3/5/2020, (Boerger, Tricia) (Entered: 03/05/2020)
2020-03-0627STIPULATION AND ORDER re Parties' 26 Stipulated Motion re briefing schedule for Plaintiff's 24 Motion for Summary Judgment: By 3/13/2020, Defendant will file a joint opposition to Plaintiff's motion and cross-motion for summary judgment of no more than 24 pages; By 3/27/2020, Plaintiff will file a joint reply in support of its motion and opposition to Defendant's cross-motion of no more than 12 pages; By 4/6/2020, Defendant will file a reply in support of its cross-motion of no more than 12 pages. Signed by Judge Ricardo S. Martinez.(MW) (Entered: 03/06/2020)
2020-03-1328CROSS-MOTION AND RESPONSE re 24 MOTION for Summary Judgment ., filed by Defendant United States Customs and Border Protection. Noting Date 4/6/2020, (Fairchild, Katie) (Entered: 03/13/2020)
2020-03-1329DECLARATION of Patrick Howard filed by Defendant United States Customs and Border Protection re 28 CROSS-MOTION AND RESPONSE re 24 MOTION for Summary Judgment . (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Fairchild, Katie) (Entered: 03/13/2020)
2020-03-1630PROPOSED ORDER (Unsigned) re 28 CROSS-MOTION AND RESPONSE re 24 MOTION for Summary Judgment . Granting Defendant's Cross-Motion for Summary Judgment and Denying Plaintiff's Motion for Summary Judgment (Fairchild, Katie) (Entered: 03/16/2020)
2020-03-1631PRAECIPE to attach document (Propose Order) re 28 CROSS-MOTION AND RESPONSE re 24 MOTION for Summary Judgment . by Defendant United States Customs and Border Protection (Attachments: # 1 Proposed Order)(Fairchild, Katie) (Entered: 03/16/2020)
2020-03-2732REPLY, filed by Plaintiff Davis Wright Tremaine LLP, TO RESPONSE to 28 CROSS-MOTION AND RESPONSE re 24 MOTION for Summary Judgment ., 24 MOTION for Summary Judgment (Attachments: # 1 Proposed Order)(McKay, John) (Entered: 03/27/2020)
2020-04-0633REPLY, filed by Defendant United States Customs and Border Protection, TO RESPONSE to 28 CROSS-MOTION AND RESPONSE re 24 MOTION for Summary Judgment . (Fairchild, Katie) (Entered: 04/06/2020)
2020-04-0634Second DECLARATION of Patrick Howard filed by Defendant United States Customs and Border Protection re 28 CROSS-MOTION AND RESPONSE re 24 MOTION for Summary Judgment . (Fairchild, Katie) (Entered: 04/06/2020)
2020-04-1335NOTICE of Appearance by attorney Michelle R. Lambert on behalf of Defendant United States Customs and Border Protection. (Lambert, Michelle) (Entered: 04/13/2020)
2020-06-1636ORDER granting in part and denying in part Plaintiff's 24 Motion for Summary Judgment; denying Defendant's 28 Cross Motion for Summary Judgment. Within sixty (60) days, the parties shall file a joint status report advising the Court on how this matter should proceed as to any unresolved matters. Signed by Judge Ricardo S. Martinez. (PM) (Entered: 06/16/2020)
2020-07-2937Stipulated MOTION and [Proposed] Order , filed by Defendant United States Customs and Border Protection. Noting Date 7/29/2020, (Fairchild, Katie) (Entered: 07/29/2020)
2020-07-3038ORDER re parties' 37 Stipulated Motion. The parties have agreed to meet and confer no later than August 11 to discuss the search protocol and CBP's compliance with the other portions of the Court's order 36 , and will submit a report to the Court on August 14, 2020. Signed by Judge Ricardo S. Martinez. (PM) (Entered: 07/30/2020)
2020-08-1439JOINT STATUS REPORT signed by all parties. (Fairchild, Katie) (Entered: 08/14/2020)
2020-08-1440DECLARATION of Todd C. Owen re 39 Joint Status Report by Defendant United States Customs and Border Protection (Fairchild, Katie) (Entered: 08/14/2020)
2020-08-1741JOINT STATUS REPORT AND ORDER re 36 Order. Signed by Judge Ricardo S. Martinez. (PM) (Entered: 08/17/2020)
2020-10-0142STATUS REPORT by Plaintiff Davis Wright Tremaine LLP (McKay, John) (Entered: 10/01/2020)
2020-10-0143STATUS REPORT by Defendant United States Customs and Border Protection (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Fairchild, Katie) (Entered: 10/01/2020)
2020-10-1944DECLARATION of Patrick Howard re 43 Status Report by Defendant United States Customs and Border Protection (Fairchild, Katie) (Entered: 10/19/2020)
2020-10-2345MOTION for Order to Show Cause , filed by Plaintiff Davis Wright Tremaine LLP. (Attachments: # 1 Proposed Order) Noting Date 11/13/2020, (McKay, John) (Entered: 10/23/2020)
2020-10-2346DECLARATION of Chris Morley filed by Plaintiff Davis Wright Tremaine LLP re 45 MOTION for Order to Show Cause (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(McKay, John) (Entered: 10/23/2020)
2020-11-0947RESPONSE, by Defendant United States Customs and Border Protection, to 45 MOTION for Order to Show Cause . (Fairchild, Katie) (Entered: 11/09/2020)
2020-11-0948Fourth DECLARATION of Patrick Howard filed by Defendant United States Customs and Border Protection re 45 MOTION for Order to Show Cause (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Fairchild, Katie) (Entered: 11/09/2020)
2020-11-0949DECLARATION of Katie Fairchild filed by Defendant United States Customs and Border Protection re 45 MOTION for Order to Show Cause (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Fairchild, Katie) (Entered: 11/09/2020)
2020-11-1350REPLY, filed by Plaintiff Davis Wright Tremaine LLP, TO RESPONSE to 45 MOTION for Order to Show Cause (McKay, John) (Entered: 11/13/2020)
2020-11-1351DECLARATION of Chris Morley filed by Plaintiff Davis Wright Tremaine LLP re 45 MOTION for Order to Show Cause (McKay, John) (Entered: 11/13/2020)
2021-07-2752ORDER denying Plaintiff's 45 Motion to Show Cause. Signed by Judge Ricardo S. Martinez. (PM) (Entered: 07/27/2021)
2021-09-0753NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Christopher C. Morley for Plaintiff Davis Wright Tremaine LLP. (Morley, Christopher) (Entered: 09/07/2021)
2021-09-0854NOTICE of Appearance by attorney Caesar David Kalinowski on behalf of Plaintiff Davis Wright Tremaine LLP. (Kalinowski, Caesar) (Entered: 09/08/2021)
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by FOIA Project Staff
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