Case Detail

FOIA Project Annotation: Judge Amit Mehta has ruled that the EPA failed to show that it conducted an adequate search for records in response to 24 requests from the law firm of Husch Blackwell concerning communications between the agency and either the International Agency for Research on Cancer (IARC) or the California Office of Environmental Health Hazard Assessment (OEHHA) concluding that the herbicide glyphosate caused cancer. However, Mehta also found that the agency properly withheld records under Exemption 5 (privileges) and Exemption 6 (invasion of privacy). Twelve requests each named a separate individual, six of whom were EPA employees, and asked for all electronic communications to or from the named individual containing specified search terms. The second 12 requests were identical except that they covered a more recent time frame. The agency suggested that two separate searches would pick up the same emails and suggested combining them into one search. Husch Blackwell agreed to the proposal and the agency ran one search but limited its search to the six identified EPA employees. The agency disclosed some records, but withheld others. Husch Blackwell challenged the search as well as the agency's exemption claims. Mehta agreed with Husch Blackwell that the search as run was inadequate. He explained that "to understand the inadequacy of the search, picture these requests and the search run as two concentric circles. The large, outside circle contains all communications between any EPA official and the six non-EPA individuals resulting from the applied search string. The smaller, inside circle contains all communications between a subset of EPA personnel â€" the six named EPA officials/custodians â€" and the six non-EPA individuals resulting from the applied search string. By running the search string across only the six identified EPA custodians, the agency's search captured the communications within the smaller, inside circle. But what the agency missed is the non-overlapping portion of the concentric circles; that is, by limiting the search to only six custodial files, the agency missed any communications between other agency personnel and the six non-EPA individuals that did not include the six custodians. The agency's search string would have captured such an email only if one of the six custodians was also a recipient; but if not, then the email would have eluded the search as crafted." Mehta pointed out that "this is not to say that the agency had to search the custodian files of all EPA personnel to find responsive records. That would be too great a burden. But the agency did have to undertake a reasonable effort to determine which EPA personnel other than the six custodians might have communicated with the six non-EPA persons and to search those additional custodial files. Optimally, the parties would have reached agreement on the universe of relevant custodians. In any event, by limiting the search to the files of only the six identified EPA officials, the agency fell short of its obligation to run searches that would 'be reasonably expected to produce the information requested.'" Turning to the agency's Exemption 5 claims, Husch Blackwell argued that records related to congressional testimony and public briefings reflected past agency decisions and were not, therefore, predecisional. Although Husch Blackwell pointed to case law in the Second Circuit supporting its position, Mehta noted that "the court need not, however, venture outside this District for answers. 'Courts in this jurisdiction have repeatedly concluded that talking points prepared for use in congressional testimony are deliberative and predecisional documents subject to FOIA exemption 5.' The same is true of talking points and deliberations about press inquiries or public statements by an agency." Mehta rejected the agency's attorney-client privilege claim, noting that "the agency does not, for instance, explain how the communication conveyed or sought legal advice about the ongoing litigation, particularly in the context of a press inquiry." The agency withheld information identifying third-party individuals in emails. Mehta agreed with the agency's claims, indicating that "releasing the individual's full email address would constitute an unwarranted invasion of privacy."
Issues: Search - Reasonableness of search, Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 6 - Invasion of privacy

Date Filed	Doc #	Docket Text
2018-05-23	1	COMPLAINT against UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ( Filing fee $ 400 receipt number 0090-5497896) filed by HUSCH BLACKWELL LLP. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9)(Gilster, Kyle) (Entered: 05/23/2018)
2018-05-23	2	Corporate Disclosure Statement by HUSCH BLACKWELL LLP. (Gilster, Kyle) (Entered: 05/23/2018)
2018-05-23		Case Assigned to Judge Amit P. Mehta. (zmd) (Entered: 05/25/2018)
2018-05-24	3	ERRATA to Correct by HUSCH BLACKWELL LLP 1 Complaint, filed by HUSCH BLACKWELL LLP. (Attachments: # 1 Revised Pg 1 of Complaint, # 2 Summons U.S. Attorney General, # 3 Summons U.S. Attorney)(Gilster, Kyle) (Entered: 05/24/2018)
2018-05-29	4	SUMMONS (3) Issued Electronically as to UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent) (zmd) (Entered: 05/29/2018)
2018-06-07	5	NOTICE of Appearance by Matthew Diehr on behalf of HUSCH BLACKWELL LLP (Diehr, Matthew) (Entered: 06/07/2018)
2018-06-14	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY served on 6/11/2018 (Diehr, Matthew) Modified to correct party served on 7/3/2018 (ztd). (Entered: 06/14/2018)
2018-06-14	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/8/2018. Answer due for ALL FEDERAL DEFENDANTS by 7/8/2018. (Diehr, Matthew) (Entered: 06/14/2018)
2018-06-14	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 06/06/2018. (Diehr, Matthew) (Entered: 06/14/2018)
2018-07-09	9	NOTICE of Appearance by Joshua M. Kolsky on behalf of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Kolsky, Joshua) (Entered: 07/09/2018)
2018-07-09	10	ANSWER to Complaint by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.(Kolsky, Joshua) (Entered: 07/09/2018)
2018-07-10		MINUTE ORDER. Both a Complaint and an Answer are now before the court in this FOIA case. It is hereby ordered that the parties shall meet and confer and file a Joint Status Report on or before July 24, 2018. The Joint Status Report shall include: (1) the status of Plaintiff's FOIA request; (2) the anticipated number of documents responsive to Plaintiff's FOIA request; (3) the anticipated date(s) for release of the documents requested by Plaintiff; (4) whether a motion for stay is likely under Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976); and (5) whether the parties anticipate summary judgment briefing and, if so, a proposed briefing schedule. Signed by Judge Amit P. Mehta on 7/10/2017. (lcapm2) (Entered: 07/10/2018)
2018-07-10		Set/Reset Deadlines: Joint Status Report due by 7/24/2018. (zjd) (Entered: 07/11/2018)
2018-07-24	11	Joint STATUS REPORT by HUSCH BLACKWELL LLP. (Diehr, Matthew) (Entered: 07/24/2018)
2018-07-26		MINUTE ORDER. In light of the parties' 11 Joint Status Report, the parties shall file an additional Joint Status Report on or before August 14, 2018, in which the parties advise the court whether further litigation will be required in this matter and, if so, proposes a summary judgment briefing schedule. Signed by Judge Amit P. Mehta on 7/26/2018. (lcapm2) (Entered: 07/26/2018)
2018-07-26		Set/Reset Deadlines: Joint Status Report due by 8/14/2018. (zjd) (Entered: 07/27/2018)
2018-08-14	12	Joint STATUS REPORT by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Kolsky, Joshua) (Entered: 08/14/2018)
2018-08-17		MINUTE ORDER. In light of the parties' 12 Joint Status Report, the parties shall file an additional Joint Status Report on or before September 14, 2018, that advises the court whether further litigation will be required and, if so, proposes a summary judgment briefing schedule. Signed by Judge Amit P. Mehta on 8/17/2018. (lcapm2) (Entered: 08/17/2018)
2018-08-17		Set/Reset Deadlines: Joint Status Report due by 9/14/2018. (zjd) (Entered: 08/20/2018)
2018-09-14	13	Joint STATUS REPORT by HUSCH BLACKWELL LLP. (Diehr, Matthew) (Entered: 09/14/2018)
2018-09-17		MINUTE ORDER. In light of the parties' 13 Joint Status Report, the parties shall file an additional Joint Status Report on or before October 26, 2018, in which the parties advise the court whether further litigation will be required in this matter and, if so, proposes a summary judgment briefing schedule. Signed by Judge Amit P. Mehta on 9/17/2018. (Entered: 09/17/2018)
2018-09-17		Set/Reset Deadlines: Joint Status Report due by 10/26/2018. (zjd) (Entered: 09/18/2018)
2018-10-26	14	Joint STATUS REPORT by HUSCH BLACKWELL LLP. (Diehr, Matthew) (Entered: 10/26/2018)
2018-10-26		MINUTE ORDER. No later than November 26, 2018, the parties shall submit an additional Joint Status Report updating the court on whether summary judgment briefing will be required in this case and, if so, proposing a briefing schedule. Signed by Judge Amit P. Mehta on 10/26/2018. (lcapm2) (Entered: 10/26/2018)
2018-10-26		Set/Reset Deadlines: Joint Status Report due by 11/26/2018. (zjd) (Entered: 10/29/2018)
2018-10-29	15	NOTICE of Appearance by Natalie R Holden on behalf of HUSCH BLACKWELL LLP (Holden, Natalie) (Entered: 10/29/2018)
2018-11-26	16	Joint STATUS REPORT by HUSCH BLACKWELL LLP. (Holden, Natalie) (Entered: 11/26/2018)
2018-11-27		MINUTE ORDER. No later than December 21, 2018, the parties shall submit an additional Joint Status Report updating the court on whether summary judgment briefing will be required in this case and, if so, proposing a briefing schedule. Signed by Judge Amit P. Mehta on 11/27/2018. (lcapm2) (Entered: 11/27/2018)
2018-11-27		Set/Reset Deadlines: Joint Status Report due by 12/21/2018. (zjd) (Entered: 11/27/2018)
2018-11-28		NOTICE OF ERROR re 16 Status Report; emailed to natalie.holden@huschblackwell.com, cc'd 7 associated attorneys -- The PDF file you docketed contained errors: 1. Invalid attorney signature, 2. DO NOT REFILE- signature on pleadings should match login/password of attorney efiling (zjf, ) (Entered: 11/28/2018)
2018-12-21	17	Joint STATUS REPORT by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 12/21/2018)
2018-12-26	18	NOTICE OF SUBSTITUTION OF COUNSEL by Paul Cirino on behalf of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Substituting for attorney Joshua M. Kolsky (Cirino, Paul) (Entered: 12/26/2018)
2018-12-27	19	ORDER: Having considered 17 the Joint Status Report, the court sets the following schedule for further proceedings in this matter: Defendant's Motion for Summary Judgment shall be filed on or before February 22, 2019; Plaintiff's Cross-Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment shall be filed on or before March 22, 2019; Defendant's Reply and Opposition to Plaintiff's Cross-Motion for Summary Judgment shall be filed on or before April 19, 2019; and Plaintiff's Reply shall be filed on or before May 10, 2019. See attached Order for additional details. Signed by Judge Amit P. Mehta on 12/27/2018. (lcapm3) (Entered: 12/27/2018)
2018-12-27		Set/Reset Deadlines: Defendant's Motion for Summary Judgment due by 2/22/2019. Plaintiff's Cross-Motion and Opposition due by 3/22/2019. Defendant's Reply and Opposition due by 4/19/2019. Plaintiff's Reply due by 5/10/2019. (zjd) (Entered: 12/28/2018)
2019-01-31	20	Unopposed MOTION to Extend Deadlines by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Cirino, Paul) (Entered: 01/31/2019)
2019-02-01		MINUTE ORDER granting 20 Motion to Extend Deadlines. The summary judgment briefing schedule, as set forth ECF 19 , is amended as follows: Defendant's Motion for Summary Judgment shall be filed on or before April 2, 2019. Plaintiff's Cross-Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment shall be filed on or before May 2, 2019. Defendant's Reply and Opposition to Plaintiffs Cross-Motion for Summary Judgment shall be filed on or before May 30, 2019. Plaintiff's Reply shall be filed on or before June 20, 2019. Signed by Judge Amit P. Mehta on 2/1/2019 (lcapm2) (Entered: 02/01/2019)
2019-02-01		Set/Reset Deadlines: Defendant's Motion for Summary Judgment due by 4/2/2019. Plaintiff's Opposition and Cross-Motion due by 5/2/2019. Defendant's Reply and Opposition due by 5/30/2019. Plaintiff's Reply due by 6/20/2019. (zjd) (Entered: 02/06/2019)
2019-02-01		Set/Reset Deadlines: Plaintiff's Cross Motion due by 5/2/2019. Defendant's Opposition due by 5/30/2019. Plaintiff's Reply due by 6/20/2019. (zjd) (Entered: 02/14/2019)
2019-03-27	21	Unopposed MOTION to Extend Deadlines by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Cirino, Paul) Modified event on 3/28/2019 (znmw). (Entered: 03/27/2019)
2019-03-29		MINUTE ORDER granting 21 Motion for Extension of Time. The summary judgment briefing schedule, as set forth in ECF 19 , is amended as follows: EPA's Motion for Summary Judgment shall be filed on or before April 16, 2019; Plaintiff's Cross-Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment shall be filed on or before May 16, 2019; EPA's Reply and Opposition to Plaintiffs Cross-Motion for Summary Judgment shall be filed on or before June 13, 2019; Plaintiff's Reply shall be filed on or before July 12, 2019. Signed by Judge Amit P. Mehta on 3/29/2019. (lcapm2) (Entered: 03/29/2019)
2019-04-16	22	MOTION for Summary Judgment by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration of Earl Ingram, Jr., # 4 Exhibit 1 (Vaughn Index), # 5 Exhibit 2 (EPA Letter 10/30/2017), # 6 Exhibit 3 (Correspondence), # 7 Exhibit 4 (Plaintiff's FOIA Appeal 3/5/2018)), # 8 Exhibit 5 (EPA FOIA Appeal Determination 4/20/2018), # 9 Exhibit 6 (EPA Final Response Letter 7/3/2018), # 10 Text of Proposed Order)(Cirino, Paul) (Entered: 04/16/2019)
2019-04-29	23	Unopposed MOTION for Extension of Time to extend Deadlines by HUSCH BLACKWELL LLP (Attachments: # 1 Text of Proposed Order)(Holden, Natalie) (Entered: 04/29/2019)
2019-04-30		MINUTE ORDER granting 23 Motion for Extension of Time. The summary judgment briefing schedule, as set forth in ECF 19 , and amended by the Minute Order of March 29, 2019, is hereby further amended as follows: Plaintiff's Cross-Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment shall be filed on or before June 17, 2019. Defendant's Reply and Opposition to Plaintiff's Cross-Motion for Summary Judgment shall be filed on or before July 23, 2019. Plaintiff's Reply shall be filed on or before August 15, 2019. Signed by Judge Amit P. Mehta on 4/30/2019. (lcapm2) (Entered: 04/30/2019)
2019-04-30		Set/Reset Deadlines: Plaintiff's Cross-Motion and Opposition due by 6/17/2019. Defendant's Opposition and Reply due by 7/23/2019. Plaintiff's Reply due by 8/15/2019. (zjd) (Entered: 04/30/2019)
2019-06-17	24	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Catherine M. Dickenson, :Firm- Husch Blackwell LLP, :Address- 190 Carondelet Plaza, Suite 600. Phone No. - 314-480-1500. Fax No. - 314-480-1505 Filing fee $ 100, receipt number 0090-6193254. Fee Status: Fee Paid. by HUSCH BLACKWELL LLP (Attachments: # 1 Exhibit Exhibit 1)(Holden, Natalie) (Entered: 06/17/2019)
2019-06-17	25	RESPONSE re 22 MOTION for Summary Judgment filed by HUSCH BLACKWELL LLP. (Holden, Natalie) (Entered: 06/17/2019)
2019-06-17	26	Cross MOTION for Summary Judgment by HUSCH BLACKWELL LLP (Holden, Natalie) (Additional attachment(s) added on 6/18/2019: # 1 Memorandum in Support, # 2 Statement of Facts Undisputed, # 3 Text of Proposed Order) (zjf). (Entered: 06/17/2019)
2019-06-17	27	ENTERED IN ERROR.....MEMORANDUM re 26 Cross MOTION for Summary Judgment filed by HUSCH BLACKWELL LLP, 25 Response to motion filed by HUSCH BLACKWELL LLP by HUSCH BLACKWELL LLP. (Holden, Natalie) Modified on 6/18/2019 (zjf). (Entered: 06/17/2019)
2019-06-17	28	ENTERED IN ERROR.....NOTICE of Filing of Statement of Undisputed Material Facts by HUSCH BLACKWELL LLP re 27 Memorandum (Holden, Natalie) Modified on 6/18/2019 (zjf). (Entered: 06/17/2019)
2019-06-17	29	RESPONSE re 22 MOTION for Summary Judgment re Defendant's Statement of Undisputed Material Facts filed by HUSCH BLACKWELL LLP. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16)(Holden, Natalie) (Entered: 06/17/2019)
2019-06-17	30	ENTERED IN ERROR.....NOTICE of Proposed Order by HUSCH BLACKWELL LLP re 26 Cross MOTION for Summary Judgment , 29 Response to Document, 27 Memorandum, 25 Response to motion, 28 Notice (Other) (Holden, Natalie) Modified on 6/18/2019 (zjf). (Entered: 06/17/2019)
2019-06-17		MINUTE ORDER granting 24 Motion for Leave to Appear Pro Hac Vice. Attorney Catherine M. Dickenson is hereby admitted pro hac vice to appear in this matter. Signed by Judge Amit P. Mehta on 6/17/2019. (lcapm2) (Entered: 06/17/2019)
2019-06-18		NOTICE OF CORRECTED DOCKET ENTRY: Document Nos. re 27 Memorandum, 30 Notice of Proposed Order, 28 Notice (Other) was entered in error and added to entry 26 Cross Motion for Summary Judgment as one complete filing per our ECF Instructions. (jf) (Entered: 06/18/2019)
2019-07-23	31	Memorandum in opposition to re 26 Cross MOTION for Summary Judgment filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Response to Plaintiff's Statement of Undisputed Material Facts, # 2 Text of Proposed Order)(Cirino, Paul) (Entered: 07/23/2019)
2019-07-23	32	REPLY to opposition to motion re 22 MOTION for Summary Judgment (Duplicate Entry) filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Response to Plaintiff's Statement of Undisputed Material Facts, # 2 Text of Proposed Order)(Cirino, Paul) (Entered: 07/23/2019)
2019-08-15	33	REPLY to opposition to motion re 26 Cross MOTION for Summary Judgment filed by HUSCH BLACKWELL LLP. (Attachments: # 1 Exhibit 1)(Holden, Natalie) (Entered: 08/15/2019)
2020-02-12	34	MEMORANDUM OPINION AND ORDER granting in part and denying in part 22 Defendant's Motion for Summary Judgment, and denying 26 Plaintiff's Cross Motion for Summary Judgment. See the attached Memorandum Opinion and Order for further details. Signed by Judge Amit P. Mehta on 02/12/2020. (lcapm3) (Entered: 02/12/2020)
2020-02-12		Set/Reset Deadlines: Joint Status Report due by 3/13/2020. (zjd) (Entered: 02/14/2020)
2020-03-13	35	Joint STATUS REPORT by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Cirino, Paul) (Entered: 03/13/2020)
2020-03-16		MINUTE ORDER. The parties shall file a Joint Status Report by April 27, 2020, which advises on the status of Defendant's supplemental search and production of records. Signed by Judge Amit P. Mehta on 03/16/2020. (lcapm2) (Entered: 03/16/2020)
2020-03-16		Set/Reset Deadlines: Joint Status Report due by 4/27/2020. (zjd) (Entered: 03/17/2020)
2020-04-27	36	Joint STATUS REPORT by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Cirino, Paul) (Entered: 04/27/2020)
2020-04-28		MINUTE ORDER. The parties shall file an additional Joint Status Report by June 26, 2020, and every 60 days thereafter, which updates the court on the agency's supplemental productions. Signed by Judge Amit P. Mehta on 04/28/2020. (lcapm2) (Entered: 04/28/2020)
2020-04-28		Set/Reset Deadlines: Joint Status Report due by 6/26/2020. (zjd) (Entered: 04/28/2020)
2020-06-26	37	Joint STATUS REPORT by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Cirino, Paul) (Entered: 06/26/2020)
2020-08-25	38	Joint STATUS REPORT by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Cirino, Paul) (Entered: 08/25/2020)
2020-08-27		MINUTE ORDER. The parties shall file an additional Joint Status Report by October 26, 2020, or within 14 days after EPA completes its processing and production of records resulting from its supplemental search, whichever is earlier. That Joint Status Report shall advise whether there are any remaining issues in dispute and, if so, propose a briefing schedule. Signed by Judge Amit P. Mehta on 08/27/2020. (lcapm2) (Entered: 08/27/2020)
2020-08-27		Set/Reset Deadlines: Joint Status Report due by 10/26/2020. (zjd) (Entered: 08/31/2020)
2020-10-26	39	Joint STATUS REPORT by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Cirino, Paul) (Entered: 10/26/2020)
2020-10-26		MINUTE ORDER. The parties shall file an additional Joint Status Report by November 24, 2020, which advises whether any issues remain in dispute and, if so, proposes a briefing schedule to resolve those matters. Signed by Judge Amit P. Mehta on 10/26/2020. (lcapm2) (Entered: 10/26/2020)
2020-10-26		Set/Reset Deadlines: Joint Status Report due by 11/24/2020. (zjd) (Entered: 10/27/2020)
2020-11-23	40	STIPULATION of Dismissal by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Cirino, Paul) (Entered: 11/23/2020)
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