Case Detail

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

FOIA Project Annotation: A federal court in Washington has ruled that the law firm of Davis Wright Tremaine failed to show that U.S. Customs and Border Protection has disregarded the court's order to process the law firm's request on why Canadians working in its legal cannabis industry are considered ineligible to travel to the United States because marijuana, which contains cannabis, is an illegal drug under the federal Narcotics Act. Based on reported interviews with Todd Owens, CBP's Executive Commissioner for its Office of Field Operations indicating that he considered anyone involved with the cannabis industry to be ineligible for entry into the United States, DWT submitted a FOIA request to CBP for records on the policy. After the agency failed to respond within the statutory time limit, DWT filed suit. The agency then released 116 pages. DWT challenged the adequacy of the agency's search. The district court ordered the agency to expand its search to include emails. Dissatisfied with the progress of the agency's search, DWT filed a motion asking the court to enforce its order, arguing that the agency had failed to produce Owens' emails within the 30-day timeframe established by the court's original order. But the court noted that "the Court's prior order was mindful that it is was not in the best position to craft and oversee CBP's search so that responsive records DWT sought were identified and produced. CBP is the entity tasked with crafting a reasonable search. The Court is comfortable that CBP has done so here." Instead, the court ordered the parties "to determine the manner in which their continuing disputes over exemptions are best presented to the Court."
Issues: Search - Reasonableness of search

Date Filed	Doc #	Docket Text
2019-03-06	1	COMPLAINT 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)
2019-03-07		Judge Ricardo S. Martinez added. (GT) (Entered: 03/07/2019)
2019-03-07	2	Summons Electronically Issued as to defendant United States Customs and Border Protection (GT) (Entered: 03/07/2019)
2019-03-07		NOTICE 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)
2019-03-07	3	NOTICE TO FILER: re 1 Complaint,. Notice of Filing Deficiency ** Action Required ** See Attached Letter for More Information and Instructions. (GT) (Entered: 03/07/2019)
2019-03-07	4	CIVIL COVER SHEET re 1 Complaint, ; filed by Plaintiff Davis Wright Tremaine LLP. (Morley, Christopher) (Entered: 03/07/2019)
2019-03-13	5	CORPORATE 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)
2019-03-22	6	ORDER 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)
2019-03-22	7	NOTICE of Appearance by attorney Katie Denise Fairchild on behalf of Defendant United States Customs and Border Protection. (Fairchild, Katie) (Entered: 03/22/2019)
2019-04-11	8	Stipulated 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)
2019-04-15	9	ORDER 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)
2019-05-28	10	JOINT STATUS REPORT signed by all parties estimated Trial Days: 3. (McKay, John) (Entered: 05/28/2019)
2019-05-31	11	STIPULATION 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)
2019-06-28	12	JOINT STATUS REPORT signed by all parties estimated Trial Days: 3. (Fairchild, Katie) (Entered: 06/28/2019)
2019-07-01	13	STIPULATION 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)
2019-07-26	14	Joint STATUS REPORT and Stipulation by Defendant United States Customs and Border Protection (Fairchild, Katie) (Entered: 07/26/2019)
2019-07-26	15	STIPULATION 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)
2019-09-27	16	STIPULATION AND PROPOSED ORDER by parties (Fairchild, Katie) (Entered: 09/27/2019)
2019-10-01	17	JOINT 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)
2019-10-28	18	JOINT STATUS REPORT signed by all parties (Fairchild, Katie) (Entered: 10/28/2019)
2019-10-28	19	ANSWER to 1 Complaint, by United States Customs and Border Protection.(Fairchild, Katie) (Entered: 10/28/2019)
2019-11-01	20	NOTICE of Appearance by attorney Jordan C Harris on behalf of Plaintiff Davis Wright Tremaine LLP. (Harris, Jordan) (Entered: 11/01/2019)
2019-11-01	21	JOINT 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)
2020-01-30	22	Joint Stipulated MOTION , filed by Defendant United States Customs and Border Protection. Noting Date 1/30/2020, (Fairchild, Katie) (Entered: 01/30/2020)
2020-02-03	23	STIPULATION 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)
2020-02-03	24	MOTION 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)
2020-02-03	25	DECLARATION 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)
2020-03-05	26	Stipulated MOTION , filed by Defendant United States Customs and Border Protection. Noting Date 3/5/2020, (Boerger, Tricia) (Entered: 03/05/2020)
2020-03-06	27	STIPULATION 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)
2020-03-13	28	CROSS-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)
2020-03-13	29	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 . (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Fairchild, Katie) (Entered: 03/13/2020)
2020-03-16	30	PROPOSED 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)
2020-03-16	31	PRAECIPE 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)
2020-03-27	32	REPLY, 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)
2020-04-06	33	REPLY, 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)
2020-04-06	34	Second 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)
2020-04-13	35	NOTICE of Appearance by attorney Michelle R. Lambert on behalf of Defendant United States Customs and Border Protection. (Lambert, Michelle) (Entered: 04/13/2020)
2020-06-16	36	ORDER 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)
2020-07-29	37	Stipulated MOTION and [Proposed] Order , filed by Defendant United States Customs and Border Protection. Noting Date 7/29/2020, (Fairchild, Katie) (Entered: 07/29/2020)
2020-07-30	38	ORDER 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)
2020-08-14	39	JOINT STATUS REPORT signed by all parties. (Fairchild, Katie) (Entered: 08/14/2020)
2020-08-14	40	DECLARATION of Todd C. Owen re 39 Joint Status Report by Defendant United States Customs and Border Protection (Fairchild, Katie) (Entered: 08/14/2020)
2020-08-17	41	JOINT STATUS REPORT AND ORDER re 36 Order. Signed by Judge Ricardo S. Martinez. (PM) (Entered: 08/17/2020)
2020-10-01	42	STATUS REPORT by Plaintiff Davis Wright Tremaine LLP (McKay, John) (Entered: 10/01/2020)
2020-10-01	43	STATUS 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)
2020-10-19	44	DECLARATION of Patrick Howard re 43 Status Report by Defendant United States Customs and Border Protection (Fairchild, Katie) (Entered: 10/19/2020)
2020-10-23	45	MOTION 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)
2020-10-23	46	DECLARATION 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)
2020-11-09	47	RESPONSE, by Defendant United States Customs and Border Protection, to 45 MOTION for Order to Show Cause . (Fairchild, Katie) (Entered: 11/09/2020)
2020-11-09	48	Fourth 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)
2020-11-09	49	DECLARATION 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)
2020-11-13	50	REPLY, filed by Plaintiff Davis Wright Tremaine LLP, TO RESPONSE to 45 MOTION for Order to Show Cause (McKay, John) (Entered: 11/13/2020)
2020-11-13	51	DECLARATION of Chris Morley filed by Plaintiff Davis Wright Tremaine LLP re 45 MOTION for Order to Show Cause (McKay, John) (Entered: 11/13/2020)
2021-07-27	52	ORDER denying Plaintiff's 45 Motion to Show Cause. Signed by Judge Ricardo S. Martinez. (PM) (Entered: 07/27/2021)
2021-09-07	53	NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Christopher C. Morley for Plaintiff Davis Wright Tremaine LLP. (Morley, Christopher) (Entered: 09/07/2021)
2021-09-08	54	NOTICE of Appearance by attorney Caesar David Kalinowski on behalf of Plaintiff Davis Wright Tremaine LLP. (Kalinowski, Caesar) (Entered: 09/08/2021)
2021-12-03	55	NOTICE of Appearance by attorney Bruce EH Johnson on behalf of Plaintiff Davis Wright Tremaine LLP. (Johnson, Bruce) (Entered: 12/03/2021)
2021-12-21	56	NOTICE OF WITHDRAWAL OF COUNSEL: Attorney John McKay for Plaintiff Davis Wright Tremaine LLP. (McKay, John) (Entered: 12/21/2021)
2022-04-05	57	Stipulated MOTION Status Report and Proposed Order , filed by Defendant United States Customs and Border Protection. Noting Date 4/5/2022, (Lambert, Michelle) (Entered: 04/05/2022)
2022-04-11	58	ORDER re Parties' 57 Stipulated MOTION. The parties request that the Court grant them sufficient time to engage in settlement negotiations and propose updating the Court on their progress in 60 days. IT IS SO ORDERED. Signed by Judge Ricardo S. Martinez. (SB) (Entered: 04/11/2022)
2022-06-08	59	Stipulated MOTION Status Report and Proposed Order , filed by Defendant United States Customs and Border Protection. Noting Date 6/8/2022, (Lambert, Michelle) (Entered: 06/08/2022)
2022-06-22	60	Stipulated MOTION Status Report and [Proposed] Order , filed by Defendant United States Customs and Border Protection. Noting Date 6/22/2022, (Lambert, Michelle) (Entered: 06/22/2022)
2022-06-23	61	ORDER re Parties' 59 Stipulated MOTION. The Court grants the parties additional time to complete settlement negotiations. Signed by Judge Ricardo S. Martinez. (SB) (Entered: 06/23/2022)
2022-06-23	62	ORDER re Parties' 60 Stipulated MOTION. The parties shall file a stipulation to dismiss the case or a joint status report on or before 8/22/2022. Signed by Judge Ricardo S. Martinez. (SB) (Entered: 06/23/2022)
2022-07-12	63	Stipulated MOTION for Order of Dismissal , filed by Defendant United States Customs and Border Protection. Noting Date 7/12/2022, (Lambert, Michelle) (Entered: 07/12/2022)
2022-07-14	64	ORDER granting Parties' 63 Stipulated MOTION for Order of Dismissal. IT IS HEREBY ORDERED that this action is dismissed with prejudice. Signed by Judge Ricardo S. Martinez. (SB) (Entered: 07/14/2022)
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