Case Detail

FOIA Project Annotation: The Cornucopia Institute requested records about inspection trips to organic dairies in Texas and New Mexico. The Agricultural Marketing Service sent predisclosure notifications to some of the dairies to allow them to comment on whether or not they believed that some information was confidential. By the time Judge Rudolph Contreras issued his ruling, AMS had provided 4,254 pages with redactions under Exemption 4, Exemption 5, and Exemption 6. Contreras found the majority of withholdings appropriate under either Exemption 4 or Exemption 5 but told the agency that it must disclose photographs taken by agency staff that the agency had claimed were protected by Exemption 5. Under the deliberative process privilege, AMS withheld drafts of the reports prepared as a result of the Texas and New Mexico inspection trips. Approving these withholdings, Contreras noted that "the report â€" and prior drafts of the report â€" are predecisional because the agency had yet to officially adopt any approach to or take any position on the issues that were addressed in the report. Likewise, the report is deliberative because it describes findings from the Texas and New Mexico trip and assesses how the agency may proceed in light of those findings." But Contreras rejected the agency's claim that photographs taken by agency staff during the trips were deliberative as well because "the photographs were taken for the express purpose of aiding the agency in evaluating, among other things, whether diaries understood and were complying with agency regulations and how the 2012 drought was impacting operators." Contreras found this argument insufficient. He observed that "it cannot be that the mere act of taking a photograph â€" an act during which the photographer necessarily elects to capture only certain images â€" alone renders the photograph part of the deliberative process." He pointed out that "AMS fails to explain â€" other than in broad and vague terms â€" the role that these photographs played in any decisionmaking process." Contreras has no trouble upholding the agency's deliberative process privilege claim as to witness audit checklists. Here, he noted that "these materials are predecisional because they relate to the specific process of whether to offer accreditation to a prospective [accrediting certifying agent], and they are deliberative because they reflect the give-and-take of the process of determining whether a prospective ACA is worthy of accreditation." Turning to Exemption 4, the Cornucopia Institute argued that a provision in the Organic Foods Production Act, encouraging public access to certification documents, was an independent disclosure provision superseding FOIA. Contreras disagreed, noting that "the statute features no mention of FOIA and no suggestion that Congress intended to supersede any FOIA exemptions." Contreras found that the records at issue qualified as confidential business information. Upholding the agency's claims, he noted that "AMS has presented sufficient evidence that the dairies face actual competition and that disclosure of the information regarding the dairies' respective productive output would likely cause competitive harm."
Issues: Exemption 4 - Competitive harm, Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2016-01-29	1	COMPLAINT against UNITED STATES DEPARTMENT OF AGRICULTURE ( Filing fee $ 400 receipt number 0090-4394267) filed by THE CORNUCOPIA INSTITUTE. (Attachments: # 1 Civil Cover Sheet)(Stotter, Daniel) (Entered: 01/29/2016)
2016-01-29		Case Assigned to Judge Rudolph Contreras. (sth) (Entered: 01/29/2016)
2016-01-29		SUMMONS Not Issued as to UNITED STATES DEPARTMENT OF AGRICULTURE (sth) (Entered: 01/29/2016)
2016-02-01	2	REQUEST FOR SUMMONS TO ISSUE filed by THE CORNUCOPIA INSTITUTE.(Stotter, Daniel) (Entered: 02/01/2016)
2016-02-02	3	SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF AGRICULTURE, U.S. Attorney and U.S. Attorney General (znmw) (Entered: 02/02/2016)
2016-03-02	4	NOTICE of Appearance by Jason Todd Cohen on behalf of UNITED STATES DEPARTMENT OF AGRICULTURE (Cohen, Jason) (Entered: 03/02/2016)
2016-03-23	5	Consent MOTION for Extension of Time to File Answer re 1 Complaint by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Proposed Order)(Cohen, Jason) (Entered: 03/23/2016)
2016-03-23		MINUTE ORDER granting 5 Defendant's Consent Motion for Extension of Time: It is hereby ORDERED that Defendant shall answer or otherwise respond to 1 the Complaint on or before April 25, 2016. SO ORDERED. Signed by Judge Rudolph Contreras on 3/23/2016. (lcrc1) (Entered: 03/23/2016)
2016-03-29		Set/Reset Deadlines: Answer due by 4/25/2016, (tj) (Entered: 03/29/2016)
2016-04-25	6	ANSWER to Complaint by UNITED STATES DEPARTMENT OF AGRICULTURE.(Cohen, Jason) (Entered: 04/25/2016)
2016-04-26		MINUTE ORDER: It is hereby ORDERED that the parties shall meet, confer, and submit a proposed briefing schedule on or before May 10, 2016. SO ORDERED. Signed by Judge Rudolph Contreras on 4/26/2016. (lcrc1) (Entered: 04/26/2016)
2016-05-09	7	Consent MOTION for Extension of Time to Submit a Proposed Briefing Schedule by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Proposed Order)(Cohen, Jason) (Entered: 05/09/2016)
2016-05-09		MINUTE ORDER granting 7 Defendant's Consent Motion for Extension of Time: It is hereby ORDERED that the parties shall meet, confer, and submit a proposed briefing schedule on or before May 24, 2016. SO ORDERED. Signed by Judge Rudolph Contreras on 5/9/2016. (lcrc1) (Entered: 05/09/2016)
2016-05-24	8	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF AGRICULTURE. (Cohen, Jason) (Entered: 05/24/2016)
2016-05-25		SCHEDULING MINUTE ORDER: It is hereby ORDERED that the parties shall appear before the Court for a status conference at 2:00 PM on June 1, 2016, in Courtroom 14. Plaintiff's counsel may appear by telephone. SO ORDERED. Signed by Judge Rudolph Contreras on 5/25/2016. (lcrc1) (Entered: 05/25/2016)
2016-05-25		Set/Reset Hearings: Status Conference set for 6/1/2016 at 02:00 PM in Courtroom 14 before Judge Rudolph Contreras. (tj) (Entered: 05/25/2016)
2016-06-01		Minute Entry for proceedings held before Judge Rudolph Contreras: Status Conference held on 6/1/2016. Order to be issued by the court. (Court Reporter: Patricia Kaneshiro Miller.) (tj) (Entered: 06/01/2016)
2016-06-01		SCHEDULING MINUTE ORDER: Upon consideration of 8 the parties' joint status report and the status conference before the Court held today, it is hereby ORDERED that Defendant shall review and produce responsive documents on a rolling basis beginning on or before July 1, 2016, with all production to be completed on or before November 1, 2016. It is FURTHER ORDERED that Defendant shall make five productions of no less than 800 responsive documents, which shall occur (1) on or before July 1, 2016; (2) on or before August 1, 2016; (3) on or before September 1, 2016; (4) on or before September 30, 2016; and (5) on or before November 1, 2016. It is FURTHER ORDERED that, on or before November 15, 2016, the parties shall submit another joint status report updating the Court about their discussions and, if necessary, proposing a briefing schedule. SO ORDERED. Signed by Judge Rudolph Contreras on 6/1/2016. (lcrc1) (Entered: 06/01/2016)
2016-06-02	9	NOTICE of Appearance by C. Peter Sorenson on behalf of CORNUCOPIA INSTITUTE (Sorenson, C.) (Entered: 06/02/2016)
2016-06-02		Set/Reset Deadlines: Status Report due by 11/15/2016 (tj) (Entered: 06/02/2016)
2016-10-28	10	Consent MOTION to Modify Scheduling Order by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Proposed Order)(Cohen, Jason) (Entered: 10/28/2016)
2016-10-28		MINUTE ORDER: Upon consideration of 10 Defendant's Consent Motion to Modify Scheduling Order, it is hereby ORDERED that 10 Defendant's Motion is GRANTED. It is FURTHER ORDERED that Defendant shall complete all production of responsive documents by November 15, 2016. It is FURTHER ORDERED that the parties shall submit a joint status report by 12/16/16, updating the Court about their discussions and, if necessary, proposing a briefing schedule. (So Ordered Judge Rudolph Contreras on 10/28/2016). (lcrc2) (Entered: 10/28/2016)
2016-12-14	11	Joint STATUS REPORT and Proposed Schedule by UNITED STATES DEPARTMENT OF AGRICULTURE. (Cohen, Jason) (Entered: 12/14/2016)
2016-12-14	12	MINUTE ORDER: Upon consideration of 11 the parties' Joint Status Report and Proposed Schedule, it is hereby ORDERED that 11 the Proposed Schedule is ADOPTED. It is FURTHER ORDERED that Defendant shall file its motion for summary judgment by March 17, 2017; Plaintiff shall file its opposition and cross-motion for summary judgment by April 4, 2017; Defendant shall file its reply to Plaintiff's opposition and opposition to Plaintiff's cross-motion for summary judgment by May 15, 2017; Plaintiff shall file its reply to Defendant's opposition by June 12, 2017. SO ORDERED. Signed by Judge Rudolph Contreras on 12/14/2016. (lcrc2) (Entered: 12/14/2016)
2016-12-28		Set/Reset Deadlines: Cross Motions due by 4/4/2017. Response to Cross Motions due by 5/15/2017. Reply to Cross Motions due by 6/12/2017. Summary Judgment motions due by 3/17/2017. Response to Motion for Summary Judgment due by 4/4/2017. Reply to Motion for Summary Judgment due by 5/15/2017. (tj) (Entered: 12/28/2016)
2017-02-24	13	Consent MOTION for Extension of Time to File Motion for Summary Judgment by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Proposed Order)(Cohen, Jason) (Entered: 02/24/2017)
2017-02-24		MINUTE ORDER granting 13 Consent Motion for Extension of Time: It is hereby ORDERED that Defendant shall file its motion for summary judgment by May 16, 2017; Plaintiff shall file its opposition and cross-motion for summary judgment by June 6, 2017; Defendant shall file its reply to Plaintiff's opposition and opposition to Plaintiff's cross-motion by July 14, 2017; Plaintiff shall file its reply to Defendant's opposition by August 18, 2017. SO ORDERED. Signed by Judge Rudolph Contreras on 2/24/2017. (lcrc2) (Entered: 02/24/2017)
2017-04-26	14	Second MOTION for Extension of Time to File Motion for Summary Judgment by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Proposed Order)(Cohen, Jason) (Entered: 04/26/2017)
2017-04-27	15	Memorandum in opposition to re 14 Second MOTION for Extension of Time to File Motion for Summary Judgment filed by CORNUCOPIA INSTITUTE. (Stotter, Daniel) (Entered: 04/27/2017)
2017-05-08	16	ORDER granting in part and denying in part 14 Defendant's Motion for Extension of Time. See document for details. Signed by Judge Rudolph Contreras on 5/8/2017. (lcrc2) (Entered: 05/08/2017)
2017-06-23	17	STRICKEN PURSUANT TO 26 ORDER FILED 12/27/2017.....MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Exhibit 1, Decl. of Matthew Michael, # 2 Exhibit 2, Decl. of Gregory Bridges, # 3 Exhibit 3, Decl. of Lynnea Schurkamp, # 4 Exhibit 4, Decl. of Juan S. Velez, # 5 Exhibit 5, Decl. of Brian Boehning, # 6 Exhibit 6, Decl. of Donald De Jong)(Cohen, Jason) Modified on 1/2/2018 (zrdj). (Entered: 06/23/2017)
2017-07-29	18	Consent MOTION for Extension of Time to File Plaintiff's Opposition To Defendant's Motion for Summary Judgment, And To Modify Briefing Schedule by CORNUCOPIA INSTITUTE (Attachments: # 1 Text of Proposed Order)(Stotter, Daniel) (Entered: 07/29/2017)
2017-07-31		MINUTE ORDER granting 18 Plaintiff's Consent Motion for Extension of Time: It is hereby ORDERED that the following schedule shall govern further summary judgment briefing: Plaintiff shall file its opposition to Defendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment by September 8, 2017; Defendant shall file its Reply to Plaintiff's Opposition and Opposition to Plaintiff's Cross-Motion by October 20, 2017; Plaintiff shall file its Reply in support of its Motion for Summary Judgment by November 3, 2017. SO ORDERED. Signed by Judge Rudolph Contreras on 7/31/2017. (lcrc2) (Entered: 07/31/2017)
2017-08-09		Set/Reset Deadlines: Cross Motions due by 9/8/2017. Response to Cross Motions due by 10/20/2017. Reply to Cross Motions due by 11/3/2017. Response to Motion for Summary Judgment due by 9/8/2017. Reply to Motion for Summary Judgment due by 10/20/2017. (tj) (Entered: 08/09/2017)
2017-09-08	19	STRICKEN PURSUANT TO 26 ORDER FILED 12/27/2017.....RESPONSE re 17 MOTION for Summary Judgment filed by CORNUCOPIA INSTITUTE. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Stotter, Daniel) Modified on 1/2/2018 (zrdj). (Entered: 09/08/2017)
2017-09-08	20	STRICKEN PURSUANT TO 26 ORDER FILED 12/27/2017.....MOTION for Summary Judgment & Memorandum of Points & Authorities by CORNUCOPIA INSTITUTE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Stotter, Daniel) Modified on 1/2/2018 (zrdj). (Entered: 09/08/2017)
2017-10-11	21	Consent MOTION for Extension of Time to File Response/Reply as to 17 MOTION for Summary Judgment , 20 MOTION for Summary Judgment & Memorandum of Points & Authorities by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Proposed Order)(Cohen, Jason) (Entered: 10/11/2017)
2017-10-11		MINUTE ORDER granting 21 Defendant's Consent Motion for Extension of Time: It is hereby ORDERED that the following schedule shall govern further summary judgment briefing: Defendant shall file its reply in support of its motion for summary judgment and opposition to Plaintiff's cross-motion for summary judgment by November 20, 2017; and Plaintiff shall file its reply in support of its motion for summary judgment by December 18, 2017. SO ORDERED. Signed by Judge Rudolph Contreras on October 11, 2017. (lcrc2) (Entered: 10/11/2017)
2017-10-24		Set/Reset Deadlines: Response to Cross Motions due by 11/20/2017. Reply to Cross Motions due by 12/18/2017. Reply to Motion for Summary Judgment due by 11/20/2017. (tj) (Entered: 10/24/2017)
2017-11-20	22	STRICKEN PURSUANT TO 26 ORDER FILED 12/27/2017.....REPLY to opposition to motion re 17 MOTION for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Attachments: # 1 Supplemental Statement of Undisputed Material Facts, # 2 Declaration Second Declaration of Gregory Bridges, # 3 Attachment 1 to Second Bridges Decl. - Oct. 30, 2017, Response Ltr., # 4 Attachment 2 to Second Bridges Decl. - Supplemental Vaughn Index)(Cohen, Jason) Modified on 1/2/2018 (zrdj). (Entered: 11/20/2017)
2017-11-20	23	STRICKEN PURSUANT TO 26 ORDER FILED 12/27/2017.....Memorandum in opposition to re 20 MOTION for Summary Judgment & Memorandum of Points & Authorities (duplicate of ECF No. 22) filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Attachments: # 1 Supplemental Statement of Facts, # 2 Second Declaration of Gregory Bridges, # 3 Attachment 1 to Second Bridges Decl. - Oct. 30, 2017, Response Ltr., # 4 Attachment 2 to Second Bridges Decl. - Supplemental Vaughn Index)(Cohen, Jason) Modified on 1/2/2018 (zrdj). (Entered: 11/20/2017)
2017-12-14	24	Consent MOTION for Extension of Time to File Response/Reply as to 20 MOTION for Summary Judgment & Memorandum of Points & Authorities by CORNUCOPIA INSTITUTE (Attachments: # 1 Text of Proposed Order)(Stotter, Daniel) (Entered: 12/14/2017)
2017-12-14		MINUTE ORDER granting 24 Unopposed Motion for Extension of Time: It is hereby ORDERED that Plaintiff shall have up to and including December 22, 2017, to submit its reply in support of its motion for summary judgment. SO ORDERED. Signed by Judge Rudolph Contreras on December 14, 2017. (lcrc2) (Entered: 12/14/2017)
2017-12-15		Set/Reset Deadlines: Reply to Motion for Summary Judgment due by 12/22/2017. (tj) (Entered: 12/15/2017)
2017-12-20	25	Consent MOTION to Modify Briefing Schedule and Strike Dkt. 19, Dkt. 20 & Dkt 23 by CORNUCOPIA INSTITUTE (Attachments: # 1 Text of Proposed Order)(Stotter, Daniel) (Entered: 12/20/2017)
2017-12-27	26	ORDER granting 25 Plaintiff's Consent Motion to Modify Briefing Schedule and to Strike Prior Filings. See document for details. Signed by Judge Rudolph Contreras on December 27, 2017. (lcrc2) (Entered: 12/27/2017)
2017-12-27		Set/Reset Deadlines: Cross Motions due by 2/2/2018. Response to Cross Motions due by 3/16/2018. Reply to Cross Motions due by 4/18/2018. Summary Judgment motions due by 1/5/2018. Response to Motion for Summary Judgment due by 2/2/2018. Reply to Motion for Summary Judgment due by 3/16/2018. (tj) (Entered: 12/27/2017)
2018-01-08	27	Unopposed MOTION for Extension of Time to Refile Motion for Summary Judgment by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Text of Proposed Order)(Cohen, Jason) (Entered: 01/08/2018)
2018-01-08	28	MOTION for Summary Judgment (Refiled) by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Exhibit 1 Decl. of Matthew Michael, # 2 Exhibit 2 Decl. of Gregory Bridges, # 3 Exhibit 3 Decl. of Lynnea Schurkamp, # 4 Exhibit 4 Decl. of Juan S. Velez, # 5 Exhibit 5 Decl. of Brian Boehning, # 6 Exhibit 6 Decl. of Donald De Jong, # 7 Exhibit 7 Second Decl. of Gregory Bridges)(Cohen, Jason) (Entered: 01/08/2018)
2018-01-08		Upon consideration of 27 Defendant's Unopposed Motion for Extension of Time to Refile Motion for Summary Judgment, it is hereby ORDERED that Defendant's motion is GRANTED. The deadline for Defendant to refile its motion for summary judgment is extended nunc pro tunc to January 8, 2018. SO ORDERED. Signed by Judge Rudolph Contreras on January 8, 2018. (lcrc2) (Entered: 01/08/2018)
2018-02-02	29	MOTION for Summary Judgment & Memorandum of Points & Authorities by CORNUCOPIA INSTITUTE (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Stotter, Daniel) (Entered: 02/02/2018)
2018-02-02	30	RESPONSE re 28 MOTION for Summary Judgment (Refiled) filed by CORNUCOPIA INSTITUTE. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Stotter, Daniel) (Entered: 02/02/2018)
2018-03-16	31	REPLY to opposition to motion re 28 MOTION for Summary Judgment (Refiled) filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Attachments: # 1 Third Declaration of Gregory Bridges signed March 16, 2018, with Attachments, # 2 Second Declaration of Matthew Michael signed March 15, 2018, # 3 Exhibit 1 - AMS01096-1113 (Redacted), # 4 Exhibit 2 - AMS03476-3487 (Redacted), # 5 Exhibit 3 - AMS03192-3197 (Redacted), # 6 Exhibit 4 - AMS03912-3918 (Redacted))(Cohen, Jason) (Entered: 03/16/2018)
2018-03-16	32	Memorandum in opposition to re 29 MOTION for Summary Judgment & Memorandum of Points & Authorities (Duplicate of ECF No. 31; all attachments and exhibits filed with ECF No. 31) filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Cohen, Jason) (Entered: 03/16/2018)
2018-04-18	33	REPLY to opposition to motion re 29 MOTION for Summary Judgment & Memorandum of Points & Authorities filed by CORNUCOPIA INSTITUTE. (Stotter, Daniel) (Entered: 04/18/2018)
2018-05-01	34	MOTION for Leave to File Surreply by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Text of Proposed Order, # 2 Defendant's Supplemental Reply to Plaintiff's Reply, # 3 Exhibits 1-3 to Defendant's Supplemental Reply)(Cohen, Jason) (Entered: 05/01/2018)
2018-05-02		MINUTE ORDER granting 34 Defendant's Motion for Leave to File Surreply: Defendant's Supplemental Reply to Plaintiff's Reply in Support of Plaintiff's Renewed Motion for Summary Judgment [34-2] is DEEMED FILED. SO ORDERED. Signed by Judge Rudolph Contreras on May 2, 2018. (lcrc2) (Entered: 05/02/2018)
2018-05-02	35	SURREPLY to re 29 MOTION for Summary Judgment & Memorandum of Points & Authorities filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Attachments: # 1 Exhibit)(jf) (Entered: 05/02/2018)
2018-05-17	36	NOTICE OF SUPPLEMENTAL AUTHORITY by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Cornucopia v. AMS, Civ. A. No. 16-866 (TNM) (D.D.C. May 14, 2018), ECF No. 31)(Cohen, Jason) (Entered: 05/17/2018)
2018-05-22	37	NOTICE OF SUPPLEMENTAL AUTHORITY by CORNUCOPIA INSTITUTE (Stotter, Daniel) (Entered: 05/22/2018)
2018-09-27	38	ORDER granting in part and denying in part 28 Defendant's Motion for Summary Judgment; granting in part and denying in part 29 Plaintiff's Motion for Summary Judgment. See document for details. Signed by Judge Rudolph Contreras on 9/27/18. (lcrc1) (Entered: 09/27/2018)
2018-09-27	39	MEMORANDUM OPINION granting in part and denying in part 28 Defendant's Motion for Summary Judgment; granting in part and denying in part 29 Plaintiff's Motion for Summary Judgment. See document for details. Signed by Judge Rudolph Contreras on 9/27/18. (lcrc1) (Entered: 09/27/2018)
2018-10-11	40	Consent MOTION to Stay per LCvR 54.2(a) by CORNUCOPIA INSTITUTE (Attachments: # 1 Text of Proposed Order)(Stotter, Daniel) (Entered: 10/11/2018)
2018-10-11		MINUTE ORDER granting in part 40 Motion to Stay: Interpreting Plaintiff's motion as a motion for extension of time to file its petition for fees and costs, it is hereby ORDERED that the motion is granted. Plaintiff shall file its petition for fees and costs on or before December 6, 2018. Because the Court has already issued a final order, it is unnecessary to stay this action. SO ORDERED. Signed by Judge Rudolph Contreras on 10/11/2018. (lcrc2) (Entered: 10/11/2018)
2018-10-15		Set/Reset Deadlines: Petition for fees and costs due by 12/6/2018. (tj) (Entered: 10/15/2018)
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