Case Detail

FOIA Project Annotation: Judge Christopher Cooper has ruled that U.S. Immigration and Customs Enforcement has not shown that it conducted an adequate search for records concerning Harvard Law Professor Rebecca Tushnet's request for records concerning agency seizures of counterfeit clothing from 2012-2015 and guidance as to how to distinguish trademark infringement from items that were parodies of a product. As a result of a press conference shortly before the 2015 Super Bowl publicizing the agency's efforts to seize counterfeit sports-related items in which the agency spokesperson explained that any item that disparaged a team would qualify for seizure, Tushnet wrote to the agency indicating that items that were parodies would not legally qualify as trademark infringement. She then followed up with a FOIA request for records on seizures of counterfeit clothing. The agency conducted a multi-office search, including its 26 field offices, and produced 1,475 pages of text documents and 3,197 photos. The agency redacted approximately 300 pages from industry guides under Exemption 7(E) (investigative methods and techniques). Tushnet argued that the search was inadequate because it contained a number of inconsistencies. Cooper, however, indicated that "ICE is a complex organization and this particular request involved multiple parts, rolling productions, and coordinated searches across approximately 30 offices. A handful of inconsistencies is, therefore, unsurprising." Tushnet claimed the agency must have guidance of its own rather than relying on industry guides. But Cooper pointed out that "it seems entirely logical that ICE would rely on apparel licensers and manufacturers to point out the unique features of their branded clothing, rather than to expend the resources necessary to develop those guidelines internally." He found that the agency's failure to search its TECS database because it was too burdensome unconvincing, noting Tushnet had offered to significantly narrow her request before the agency's search began. Finding search terms used by field offices varied wildly, he observed that "ICE's claim of 'subject matter expertise' alone cannot resolve these questions. While FOIA might not require complete uniformity, it does require reasonable explanations for the scope of agency-wide searches. The wide and unexplained variances in the field offices' search parameters fall short of this standard." Tushnet contended that images of counterfeit clothing were publicly available and did not qualify under Exemption 7 (E). Cooper pointed out that "one could imagine ICE reasoning, for instance, that revealing a publicly available image along with a discussion of the features that distinguish authentic apparel from counterfeits would specifically highlight information to a black market manufacturer that an ordinary consumer might not notice. And given ICE's law enforcement expertise, its judgment on this issue is entitled to deference." Cooper agreed with Tushnet that the guidance did not distinguish between counterfeits and parody items. He noted that "given the evidence Tushnet has produced and the agency's apparent exclusive reliance on industry guidance to discern trademark infringement, the Court finds that ICE has not sufficiently justified its 7(E) redactions and that a material factual dispute remains regarding the applicability of this exemption."
Issues: Search - Reasonableness of search, Exemption 7(E) - Investigative methods or techniques

Date Filed	Doc #	Docket Text
2015-06-12	1	COMPLAINT for Declaratory and Injunctive Relief against UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ( Filing fee $ 400 receipt number 0090-4134047) filed by REBECCA TUSHNET. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Kirkpatrick, Michael) (Entered: 06/12/2015)
2015-06-12		Case Assigned to Judge Christopher R. Cooper. (md) (Entered: 06/12/2015)
2015-06-12	2	SUMMONS (3) Issued Electronically as to UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 06/12/2015)
2015-06-12	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/12/2015. Answer due for ALL FEDERAL DEFENDANTS by 7/12/2015. (Kirkpatrick, Michael) (Entered: 06/12/2015)
2015-06-29	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 06/23/2015. (Kirkpatrick, Michael) (Entered: 06/29/2015)
2015-06-29	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT served on 6/23/2015 (Kirkpatrick, Michael) (Entered: 06/29/2015)
2015-07-13	6	Consent MOTION for Extension of Time to File Answer by UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Maier, Peter) (Entered: 07/13/2015)
2015-07-14		MINUTE ORDER granting 6 Consent MOTION for Extension of Time to File Answer; and it is further ORDERED that Defendants Answer shall be filed on or before August 12, 2015. Signed by Judge Christopher R. Cooper on 7/14/2015. (tcr) (Entered: 07/14/2015)
2015-08-05	7	Second MOTION for Extension of Time to File Answer by UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Maier, Peter) (Entered: 08/05/2015)
2015-08-05	8	Memorandum in opposition to re 7 Second MOTION for Extension of Time to File Answer filed by REBECCA TUSHNET. (Attachments: # 1 Text of Proposed Order)(Kirkpatrick, Michael) (Entered: 08/05/2015)
2015-08-07		MINUTE ORDER granting 7 Second MOTION for Extension of Time to File Answer; and it is further ORDERED that Defendant's Answer shall be filed on or before August 26, 2015. Signed by Judge Christopher R. Cooper on 08/07/2015. (lccrc2, ) (Entered: 08/07/2015)
2015-08-07	9	NOTICE of Appearance by Meghan Boone on behalf of REBECCA TUSHNET (Boone, Meghan) (Entered: 08/07/2015)
2015-08-26	10	ANSWER to Complaint by UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT. (Attachments: # 1 Exhibit)(Maier, Peter) (Entered: 08/26/2015)
2015-08-26	11	ORDER FOR INITIAL SCHEDULING CONFERENCE: The above-captioned case has been assigned to this Judge for resolution. It is hereby ORDERED that the Initial Scheduling Conference be set for Wednesday, September 30, 2015 at 10:00 AM in Courtroom 27A. Counsel who attend must be sufficiently familiar with the case to answer any questions that arise. In accordance with Rule 16.3(a) of the Local Civil Rules and Federal Rule of Civil Procedure 26(f)(1), counsel (including any nonprisoner pro se party) shall confer at least 21 days prior to the date of the Initial Scheduling Conference to discuss the matters outlined in Local Civil Rule 16.3(c). (SEE ORDER FOR FULL DETAILS). Signed by Judge Christopher R. Cooper on 08/26/2015. (lccrc2) (Entered: 08/26/2015)
2015-08-27		Set/Reset Hearings: Initial Scheduling Conference set for 9/30/2015 at 10:00 AM in Courtroom 27A before Judge Christopher R. Cooper. (tcr) (Entered: 08/27/2015)
2015-09-22	12	Unopposed MOTION to Continue Initial Scheduling Conference by REBECCA TUSHNET (Attachments: # 1 Text of Proposed Order)(Kirkpatrick, Michael) (Entered: 09/22/2015)
2015-09-23		MINUTE ORDER granting 12 MOTION to Continue Initial Scheduling Conference. The Initial Scheduling Conference previously scheduled for September 30, 2015 at 10:00 AM has been RESCHEDULED for Wednesday, October 14, 2015 at 10:00 AM in Courtroom 27A. The parties are directed to submit their Joint Report on or before October 7, 2015. Signed by Judge Christopher R. Cooper on 09/23/2015. (lccrc2) (Entered: 09/23/2015)
2015-09-23		Set/Reset Hearings: Initial Scheduling Conference set for 10/14/2015 at 10:00 AM in Courtroom 27A before Judge Christopher R. Cooper. (tcr) (Entered: 09/23/2015)
2015-10-07	13	MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order Proposed Scheduling Order)(Kirkpatrick, Michael) (Entered: 10/07/2015)
2015-10-13		MINUTE ORDER: The Initial Scheduling Conference set for Wednesday, October 14, 2015 at 10:00 AM is hereby VACATED. In accordance with the parties' 13 Meet and Confer Statement, the Court enters the following SCHEDULING ORDER to govern future proceedings in this matter: The parties shall complete discussions regarding the adequacy of ICE's search for documents by October 14, 2015; ICE shall produce all responsive documents for which it does not claim an Exemption, or for which it has not provided a submitter with notice and an opportunity to object, by November 11, 2015; Defendant shall submit its Motion for Summary Judgment with, as applicable, a Vaughn Index and/or Declarations regarding the search, by December 11, 2015; Plaintiff shall submit her Opposition and Cross-Motion for Summary Judgment by January 5, 2016; Defendant shall submit its Reply in support of its Motion and its Opposition to Plaintiff's Cross-Motion by January 26, 2016; and Plaintiff shall submit her Reply in support of her Cross-Motion by February 9, 2016. Signed by Judge Christopher R. Cooper on 10/13/2015. (lccrc2) (Entered: 10/13/2015)
2015-12-11	14	Joint MOTION to Amend/Correct Order,,,, of Scheduling by UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Maier, Peter) (Entered: 12/11/2015)
2015-12-11		MINUTE ORDER granting 14 Joint MOTION to Amend/Correct Scheduling Order. The Court's Scheduling Order entered on October 13, 2015 is hereby STAYED. If the parties can agree on a proposed Amended Scheduling Order, they shall file it by December 15, 2015. If the parties cannot agree on a proposed schedule, Defendant shall file its proposal by December 16, 2015, and Plaintiff shall file its proposal by December 18, 2015. It is further ORDERED that the parties submit briefs addressing the adequacy of Defendant's search for records containing written text (excluding photos) responsive to Request No. 1 as follows: Defendant's brief and supporting declaration(s) due by January 15, 2016; Plaintiff's brief due by January 29, 2016; and Defendant's reply due by February 5, 2016. Signed by Judge Christopher R. Cooper on 12/11/2015. (lccrc2) (Entered: 12/11/2015)
2015-12-16	15	RESPONSE TO ORDER OF THE COURT re Order on Motion to Amend/Correct,,, Scheduling Order filed by UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Text of Proposed Order)(Maier, Peter) (Entered: 12/16/2015)
2015-12-18	16	RESPONSE TO ORDER OF THE COURT re Order on Motion to Amend/Correct,,, Plaintiff's Proposal to Amend The Scheduling Order filed by REBECCA TUSHNET. (Attachments: # 1 Text of Proposed Order Plaintiff's Proposed Amended Scheduling Order)(Kirkpatrick, Michael) (Entered: 12/18/2015)
2016-01-05	17	AMENDED SCHEDULING ORDER: It is hereby ORDERED that future production and briefing in this case be governed by the schedule attached herein. Signed by Judge Christopher R. Cooper on 1/5/2016. (lccrc2) (Entered: 01/05/2016)
2016-01-15	18	RESPONSE TO ORDER OF THE COURT re Order on Motion to Amend/Correct,,, As To Search for Records filed by UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT. (Attachments: # 1 Declaration, # 2 Exhibit)(Maier, Peter) (Entered: 01/15/2016)
2016-01-29	19	RESPONSE TO ORDER OF THE COURT re Order on Motion to Amend/Correct,,, Plaintiff's Brief Addressing The Adequacy of Defendant's Search for Records Containing Written Text Responsive to Request No. 1 filed by REBECCA TUSHNET. (Attachments: # 1 Declaration of Michael T. Kirkpatrick with attached Exhibits, # 2 Text of Proposed Order)(Kirkpatrick, Michael) (Entered: 01/29/2016)
2016-02-05	20	REPLY re Order on Motion to Amend/Correct,,, Adequacy of Search for Records filed by UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT. (Attachments: # 1 Declaration)(Maier, Peter) (Entered: 02/05/2016)
2016-02-08	21	Unopposed MOTION for Leave to File Sur-Reply Addressing the Adequacy of Defendant's Search for Records by REBECCA TUSHNET (Attachments: # 1 Exhibit Plaintiff's Sur-Reply, # 2 Text of Proposed Order)(Kirkpatrick, Michael) (Entered: 02/08/2016)
2016-02-12	22	NOTICE OF SUBSTITUTION OF COUNSEL by Jason Todd Cohen on behalf of All Defendants Substituting for attorney Peter R. Maier (Cohen, Jason) (Entered: 02/12/2016)
2016-03-14	23	Joint STATUS REPORT by REBECCA TUSHNET. (Attachments: # 1 Text of Proposed Order)(Kirkpatrick, Michael) (Entered: 03/14/2016)
2016-03-14		MINUTE ORDER: In light of 23 the parties' Joint Status Report, the Court hereby enters the following production schedule: Defendant shall produce all remaining photographs responsive to Plaintiffs' Request No. 1, other than those for which it claims an exemption, by April 1, 2016, and any remaining issues with regard to the photographs responsive to Plaintiffs Request No. 1 shall be addressed on the same briefing schedule already entered by the Court with respect to Plaintiff's Request Nos. 2 through 6. See Amended Scheduling Order, ECF No. 17, at 1. Signed by Judge Christopher R. Cooper on 3/14/2016. (lccrc2) (Entered: 03/14/2016)
2016-03-28	24	Consent MOTION for Extension of Time to File Motion for Summary Judgment and to Modify Briefing Schedule by UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Proposed Order)(Cohen, Jason) (Entered: 03/28/2016)
2016-04-04		MINUTE ORDER granting 24 Defendant's Motion for Extension of Time to File Motion for Summary Judgment. It is hereby ORDERED that the 17 Amended Scheduling Order previously entered in this case be AMENDED as follows: Defendant's Motion for Summary Judgment shall be due by April 29, 2016; Plaintiff's Opposition and Cross-Motion shall be due by May 20, 2016; Defendant's Reply and Opposition to Plaintiff's Cross-Motion shall be due on June 10, 2016; and Plaintiff's Reply shall be due by June 24, 2016. Signed by Judge Christopher R. Cooper on 4/4/2016. (lccrc2) (Entered: 04/04/2016)
2016-04-29	25	MOTION for Summary Judgment by UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Proposed Order)(Cohen, Jason) (Entered: 04/29/2016)
2016-04-29	26	AFFIDAVIT re 25 MOTION for Summary Judgment by UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT. (Attachments: # 1 Exhibits to Declaration of Fernando Pineiro)(Cohen, Jason) (Entered: 04/29/2016)
2016-05-20	27	Cross MOTION for Summary Judgment and Memorandum in Support by REBECCA TUSHNET (Attachments: # 1 Statement of Facts with attached Exhibits, # 2 Statement of Facts Response to Defendant's Statement of Facts, # 3 Text of Proposed Order)(Kirkpatrick, Michael) (Entered: 05/20/2016)
2016-05-20	28	Memorandum in opposition to re 25 MOTION for Summary Judgment filed by REBECCA TUSHNET. (Attachments: # 1 Statement of Facts with attached Exhibits, # 2 Statement of Facts Response to Defendant's Statement of Facts, # 3 Text of Proposed Order)(Kirkpatrick, Michael) (Entered: 05/20/2016)
2016-06-09	29	Consent MOTION for Extension of Time to File Response/Reply as to 27 Cross MOTION for Summary Judgment and Memorandum in Support , 25 MOTION for Summary Judgment by UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Proposed Order)(Cohen, Jason) (Entered: 06/09/2016)
2016-06-10		MINUTE ORDER granting 29 Defendant's Motion for Extension of Time to File Response/Reply. Defendant shall have until June 30, 2016 to file its reply in support of its motion and opposition to Plaintiff's cross-motion, and Plaintiff shall have until July 14, 2016 to file her reply in support of her cross-motion. Signed by Judge Christopher R. Cooper on 6/10/2016. (lccrc2) (Entered: 06/10/2016)
2016-06-13		Set/Reset Deadlines: Defendant shall have until 6/30/2016 to file its reply in support of its motion and opposition to Plaintiff's cross-motion, and Plaintiff shall have until 7/14/2016 to file her reply in support of her cross-motion. (kt) (Entered: 06/13/2016)
2016-06-30	30	REPLY to opposition to motion re 25 MOTION for Summary Judgment and Response to Plaintiff's Statement of Undisputed Material Facts filed by UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT. (Attachments: # 1 Supplemental Declaration of Fernando Pineiro in Support of U.S. Immigration and Customs Enforcement's Motion for Summary Judgment)(Cohen, Jason) (Entered: 06/30/2016)
2016-06-30	31	Memorandum in opposition to re 27 Cross MOTION for Summary Judgment and Memorandum in Support filed by UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT. (Cohen, Jason) (Entered: 06/30/2016)
2016-07-14	32	REPLY to opposition to motion re 27 Cross MOTION for Summary Judgment and Memorandum in Support filed by REBECCA TUSHNET. (Kirkpatrick, Michael) (Entered: 07/14/2016)
2016-07-29	33	NOTICE of Change of Address by Michael T. Kirkpatrick (Kirkpatrick, Michael) (Entered: 07/29/2016)
2016-08-03	34	NOTICE OF WITHDRAWAL OF APPEARANCE as to REBECCA TUSHNET. Attorney Meghan Boone terminated. (Boone, Meghan) (Entered: 08/03/2016)
2016-09-16		MINUTE ORDER granting 21 Plaintiff's Unopposed Motion for Leave to File a Sur-Reply regarding the adequacy of Defendant's search for records containing written text responsive to part 1 of the request. Signed by Judge Christopher R. Cooper on 9/16/2016. (lccrc2) (Entered: 09/16/2016)
2016-09-16	35	SURREPLY Addressing the Adequacy of Defendant's Search for Records Containing Written Text REsponsive to Request No. 1 filed by REBECCA TUSHNET. (td) (Entered: 09/19/2016)
2016-12-09		MINUTE ORDER: The parties are hereby ORDERED to appear before the Court to present oral arguments re 18 Defendant's Brief Addressing the Adequacy of its Search Regarding Part I of Plaintiff's FOIA Request, 25 Defendant's Motion for Summary Judgment, and 27 Plaintiff's Cross-Motion for Summary Judgment on 12/21/2016 at 10:00 AM in Courtroom 27A before Judge Christopher R. Cooper. Signed by Judge Christopher R. Cooper on 12/9/2016. (lccrc2) (Entered: 12/09/2016)
2016-12-09		Set/Reset Hearings: Motion Hearing set for 12/21/2016 at 10:00 AM in Courtroom 27A before Judge Christopher R. Cooper. (zlsj) (Entered: 12/09/2016)
2016-12-21		Minute Entry for proceedings held before Judge Christopher R. Cooper: Motion Hearing held on 12/21/2016 re 25 MOTION for Summary Judgment filed by UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT and 27 Cross MOTION for Summary Judgment and Memorandum in Support filed by REBECCA TUSHNET. Motions Taken Under Advisement; Order forthcoming. (Court Reporter Pat Kaneshiro-Miller) (zlsj) (Entered: 12/21/2016)
2017-03-31	36	ORDER denying 25 Defendant's Motion for Summary Judgment, and reserving judgment in part and denying in part 27 Plaintiff's Cross-Motion for Summary Judgment. Please refer to full order for further details. Signed by Judge Christopher R. Cooper on 3/31/2017. (lccrc2) (Entered: 03/31/2017)
2017-03-31	37	MEMORANDUM OPINION re 25 Defendant's Motion for Summary Judgment and 27 Plaintiff's Cross-Motion for Summary Judgment. Signed by Judge Christopher R. Cooper on 3/31/2017. (lccrc2) (Entered: 03/31/2017)
2017-04-03		Set/Reset Deadlines: Defendant shall either release responsive materialand/or renew its motion for summary judgment along with a supplemental declaration justifying its position by 5/31/2017. (zlsj) (Entered: 04/03/2017)
2017-05-25	38	MOTION for Extension of Time to Comply with March 31, 2017 Order by UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Proposed Order)(Cohen, Jason) (Entered: 05/25/2017)
2017-05-26	39	Memorandum in opposition to re 38 MOTION for Extension of Time to Comply with March 31, 2017 Order filed by REBECCA TUSHNET. (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Kirkpatrick, Michael) (Entered: 05/26/2017)
2017-05-30		MINUTE ORDER granting 38 Defendant's Motion for Extension of Time to Release Responsive Material and/or Renew its Motion for Summary Judgment with the following modifications. It is hereby ORDERED that Defendant shall review the Exemption 7(E) redactions within its industry guides and release any information that was improperly redacted on or by June 30, 2017. It is further ORDERED that Defendant shall release the TECS case files associated with the 25 seizures identified by Plaintiff from the SEACATS table on or by June 30, 2017. It is further ORDERED that Defendant shall release all other responsive material and/or renew its motion for summary judgment on or by July 31, 2017. Further extension requests will be looked upon with disfavor. Signed by Judge Christopher R. Cooper on 5/30/2017. (lccrc2) (Entered: 05/30/2017)
2017-05-31		Set/Reset Deadlines: Defendant shall review the Exemption 7(E) redactions within its industry guides and release any information that was improperly redacted and Defendant shall release the TECS case files associated with the 25 seizures identified by Plaintiff from the SEACATS table by 6/30/2017. Summary Judgment motions due by 7/31/2017. (lsj) (Entered: 05/31/2017)
2017-07-25	40	NOTICE of Appearance by Patrick D. Llewellyn on behalf of REBECCA TUSHNET (Llewellyn, Patrick) (Entered: 07/25/2017)
2017-08-02		MINUTE ORDER: In its 5/30/2017 Minute Order, the Court set forth a deadline of July 31, 2017 for the renewal of summary judgment motions if necessary. That deadline having passed, it is hereby ORDERED that parties shall submit a Joint Status Report on or by August 4, 2017 informing the Court of the status of production and if future proceedings will be needed.Signed by Judge Christopher R. Cooper on 8/2/2017. (lccrc2) (Entered: 08/02/2017)
2017-08-04	41	Joint STATUS REPORT regarding status of production and proposed schedule for future proceedings by REBECCA TUSHNET. (Attachments: # 1 Text of Proposed Order)(Kirkpatrick, Michael) (Entered: 08/04/2017)
2017-08-07	42	ORDER: In light of 41 parties' Joint Status Report, it is hereby ORDERED that the parties shall submit a joint stipulation of dismissal, or, if necessary, plaintiff shall submit a petition for an attorneys' fees award on or by August 30, 2017. Please refer to Order for full details. Signed by Judge Christopher R. Cooper on 8/7/2017. (lccrc2) (Entered: 08/07/2017)
2017-08-08		Set/Reset Deadlines: Joint Status Report due by 8/30/2017 (lsj) (Entered: 08/08/2017)
2017-08-25	43	Joint MOTION for Extension of Time to File Stipulation of Dismissal or Fee Petition by REBECCA TUSHNET (Attachments: # 1 Text of Proposed Order)(Kirkpatrick, Michael) (Entered: 08/25/2017)
2017-08-29		MINUTE ORDER granting 43 Joint Motion to Extend Deadline. The parties shall submit a joint stipulation of dismissal or plaintiff shall submit a petition for an award of attorney's fees and costs by 9/29/17. Signed by Judge Christopher R. Cooper on 8/29/2017. (lccrc2) (Entered: 08/29/2017)
2017-09-28	44	STIPULATION of Dismissal by REBECCA TUSHNET. (Kirkpatrick, Michael) (Entered: 09/28/2017)
Hide Docket Events