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Foundation v. Environmental Protection Agency

United States District Court, District of Columbia

March 2, 2015



ROYCE C. LAMBERTH, District Judge.

Before the Court is the plaintiff's motion [46] for spoliation sanctions against the defendant Environmental Protection Agency ("EPA"). Upon consideration of the plaintiff's motion [46], the defendant's opposition [55], the plaintiff's reply [59], the defendant's surreply [62], the arguments presented by both parties at the motion hearing held on January 28, 2015, the applicable law, and the entire record herein, the Court will DENY the plaintiff's motion for spoliation sanctions.

Two possible explanations exist for EPA's conduct following Landmark Legal Foundation's filing of a Freedom of Information Act ("FOIA") request in August 2012. Either EPA intentionally sought to evade Landmark's lawful FOIA request so the agency could destroy responsive documents, or EPA demonstrated apathy and carelessness toward Landmark's request. Either scenario reflects poorly upon EPA and surely serves to diminish the public's trust in the agency. While the government is correct that the record does not support a finding of punitive spoliation sanctions, the Court shall take this opportunity to express its discontent with EPA's continued disregard for its FOIA obligations.


Landmark is a public interest law firm focused on politically conservative causes. "Among Landmark's primary activities is the dissemination of information to the public about the conduct of governmental agencies and public officials...." Compl. ¶ 4. On August 17, 2012, Landmark filed a two-part FOIA request, pursuant to 5 U.S.C. § 552, seeking:

1. Any and all records identifying the names of individuals, groups and/or organizations outside the EPA with which the EPA, EPA employees, EPA contractors and/or EPA consultants have had communications of any kind relating to all proposed rules or regulations that have not been finalized by the EPA between January 1, 2012 and August 17, 2012. For the purposes of this request, "communications of any kind" does not include public comments or other records available on the rulemaking docket.
2. Any and all records indicating an order, direction or suggestion that the issuance of regulations, the announcements of regulations and/or public comment of regulations should be slowed or delayed until after November 2012 or the presidential elections of 2012.

Compl. Ex. 1 at 2. On October 5, 2012, Jonathan Newton, a FOIA coordinator for EPA's Office of the Administrator, inquired whether Landmark would "consider narrowing the search to senior officials in EPA [headquarters] (i[.]e., Program Administrators, Deputy Administrators and Chiefs of Staff)." Def.'s Mot. Summ. J., Wachter Decl. Ex. C at 1-2, ECF No. 30-4. Landmark, through its counsel Matthew Forys, agreed to limit the scope of its original request to "senior officials in EPA [headquarters]." Id. at 1. Unlike Newton, Forys conspicuously chose not to include any qualification for "senior officials in EPA [headquarters]."[1]

After denying Landmark's initial request for expedited processing on August 29, 2012, Compl. Ex. 2 at 1, EPA subsequently denied Landmark's appeal on October 18, 2012, Compl. Ex. 4 at 3. In response to EPA's rejection of its appeal, Landmark filed the instant suit on October 22, 2012.

On October 23, 2012, EPA's Office of the General Counsel issued a litigation hold notice[2] instructing employees to preserve "potentially relevant information." Mot. Ex. 2 at 2-7, ECF No. 46-3. The litigation hold notice explained that electronically stored information ("ESI") must be preserved regardless of whether it is "stored on optical disks (e.g., DVDs and COs), flash memory (e.g., thumb, ' flash, ' or other USB drives), PDAs or mobile/smart phones (e.g., BlackBerry), network drives (e.g., F, G, H, J, Rand Z drives), your EPA-issued desktop and/or laptop computer, privately owned computers or other devices, or in personal email accounts." Id. at 4. In other words, the litigation hold obligations applied to both official and personal devices.

EPA's Office of General Counsel forwarded the hold to forty-five agency employees understood to be potential custodians of responsive documents. See id. at 11-12. Among the recipients were Eric Wachter, who oversaw the processing of FOIA requests for the Office of the Administrator, Jonathan Newton, a FOIA coordinator under Wachter's supervision, Aaron Dickerson, the Special Assistant to EPA's then-Administrator Lisa Jackson, and Nena Shaw, the Special Assistant to EPA's then-Deputy Administrator Robert Perciasepe. Id. The hold was not sent directly to former Administrator Jackson[3] or Deputy Administrator Perciasepe. And unlike Wachter and Newton, neither Dickerson nor Shaw acknowledged receipt of the litigation hold notice. Id.; see also Mot. 7-8.

Also on October 23, 2012, Newton emailed Landmark's agreed-upon request to other EPA FOIA coordinators, setting an October 30 "due date." Mot. Ex. 16, ECF No. 46-17. Yet for reasons still unexplained, Newton did not include Dickerson or Shaw - and, consequently, the offices of the Administrator or Deputy Administrator - among the recipients of this email. It was not until three weeks later, on November 14, that Newton forwarded his October 23 email, along with a follow-up email dated October 31 responding to questions from other coordinators, to Dickerson and Shaw. Mot. Ex. 17, ECF No. 46-18.[4] The 2012 presidential and congressional elections occurred on November 6.

Two days after receiving Newton's November 14 email, Dickerson responded that he "searched the Richard Windsor account as well as verbally spoke with the Administrator and did not find any responsive documents." Mot. Ex. 17; Mot. Ex. 18 at 29:20-24, ECF No. 46-19 (Dickerson Dep., Feb. 11, 2014). Former Administrator Jackson maintained a "secondary" EPA email account under the alias "Richard Windsor, "[5] given the massive inflow of emails to her publicly available "primary" account.[6] According to Newton, "[a]ny responsive records would have been in the Richard Windsor account" because "[w]hatever the Administrator needed to see was placed in that account." Mot. Ex. 4 at 26:2-11, ECF No. 46-5 (Newton Dep., Feb. 25, 2014). Dickerson never searched Jackson's personal, non-EPA email account, Mot. Ex. 18 at 38:14-16, ECF No. 46-19, or Jackson's BlackBerry for email or text messages, see Opp'n 18-19 (implying that there was no need for Dickerson to search Jackson's BlackBerry because "he had no reason to believe that the BlackBerry was a repository likely to contain responsive materials"). Yet Landmark presented evidence that Jackson did, in fact, use her personal email account and her BlackBerry to conduct government business. See Mot. Ex. 24, ECF No. 46-27 (email from Jackson's personal account sent to other EPA employees while using her BlackBerry). EPA erased Jackson's BlackBerry subsequent to the former Administrator's resignation in February 2013. Opp'n 18.

Former Administrator Jackson explained that it was not the Administrator, but rather the former Deputy Administrator Perciasepe who maintained "regular interactions" with Cass Sunstein, the Administrator of the White House's Office of Information and Regulatory Affairs ("OIRA"), and with OIRA generally. Mot. Ex. 1 at 67:5-11. Given OIRA's direct role in EPA's policymaking process, one could assume that if anyone at EPA produced records responsive to Landmark's request, it would be the Deputy Administrator. Shaw, however, apparently chose to ignore Newton's November 14 email. There is no evidence in the record that Shaw - or anyone else, for that matter - conducted a search of the Deputy Administrator's records prior to December 20, 2014. See Opp'n, Shaw Decl. ¶¶ 7-9, ECF No. 55-9. The only purported evidence that Shaw conducted a search of the Deputy Administrator's files at all is Shaw's exceedingly vague declaration to that effect. Id. ¶¶ 9-12.[7] Newton never received any documents from Shaw, Mot. Ex. 4 at 39:9-11, despite Shaw's assertion that she had come across responsive records, id. ¶¶ 10-12. Shaw left her position as Special Assistant to the Deputy Administrator in April 2013. Id. ¶ 13.

Following this Court's denial of Landmark's motion for a preliminary injunction compelling EPA to expedite processing of the request and preserve certain records, Landmark Legal Found v. EPA, 910 F.Supp.2d 270 (D.D.C. 2012) (denied in part because "there [was] no indication that the EPA ha[d] or w[ould] destroy any records related to [Landmark's] request"), it appeared as though EPA was properly executing a search. See also Def.'s Opp'n to Pl.'s Mot. Prelim. Inj., Wachter Decl. ¶ 15, Dec. 19, 2012, ECF No. 16-1 ("I certified that I read and understood the meaning and scope of the litigation hold notice, and that I will comply to the best of my ability with the EPA's obligation to preserve information relevant to this FOIA litigation. My staff has been instructed to comply with all preservation obligations for relevant information concerning this FOIA request and FOIA litigation."). Between February 7 and April 12, 2013, EPA produced three sets of responsive documents to Landmark. Def.'s Mot. Summ. J., Statement of Material Facts ¶¶ 9, 11, 15.

On April 30 - the day EPA was due to file its motion for summary judgment, see ECF No. 26 - EPA informed the Court that it would require an extension of time to file its motion because it discovered "a number of additional documents that may potentially be responsive to [Landmark's FOIA] request, which have not yet been reviewed by the agency." Def.'s Mot. Extension of Time 2, ECF No. 27. In his declaration accompanying EPA's eventual motion for summary judgment, Wachter merely stated that his office "determined that the search for documents from the former Administrator, the Deputy Administrator, and the Chief of Staff in the Office of the Administrator may have been insufficient." Def.'s Mot. Summ. J., Wachter Decl. ¶ 19, ECF No. 30-1.[8] Wachter would later testify that he made this determination based on information relayed to him by Newton and EPA's Office of General Counsel ("OGC"), rather than through any personal observations. Mot. Ex. 20 at 58:19-23, ECF No. 21 (Wachter Dep., Feb. 12, 2014). In a deposition taken the following year, Newton explained how EPA became aware of its deficient search: "In this instance the records that were being produced showed that there may have been records from the [A]dministrator or [D]eputy [A]dministrator that had not been produced or were not among the records that [EPA was] turning over." Mot. Ex. 4 at 47:12-17. EPA had noticed that records involving the Administrator or Deputy Administrator were produced by other EPA employees, yet were not produced by the Administrator or Deputy Administrator. Opp'n 32-33. At the time of the summary judgment motion, neither EPA nor Wachter raised any issues related to the delay in searching - or possible failure to search - the Administrator's and Deputy Administrator's records from October 2012 to April 2013. EPA's second, "supplemental" search for records between April 30 and May 15, 2013, uncovered "365 additional documents responsive to [Landmark]'s request" - a figure nearly equal to the number of records produced prior to May 15. Mot. Summ. J., Statement of Material Facts ¶¶ 16-17. On February 27, 2015 - nearly two years after its initial search - EPA conceded, for the first time, that its initial search did not include the Chief of Staff. See Notice of Withdrawal 2 ("[The agency] has found no evidence that the EPA's Chief of Staff... was included in the initial search."). See also infra n. 15.

Upon review of the summary judgment briefings and the existing record in this case through mid-2013, the Court denied EPA's motion and ordered limited discovery on August 14, 2013. Landmark, 959 F.Supp.2d at 184-85. Troubled by possible "indicat[ions] of bad faith on the part of the agency, " this Court permitted Landmark to investigate (1) whether the Administrator, Deputy Administrator, and Chief of Staff used unsearched personal email accounts to conduct agency business, and (2) whether the agency "purposefully excluded the top leaders of the EPA" from its initial search. Id. at 184.

Landmark engaged in discovery from September 2013 through February 2014. The plaintiff deposed former Administrator Jackson, former Deputy Administrator Perciasepe, Wachter, Newton, and Dickerson, and received a series of documents from EPA related to the agency's purported initial FOIA search. Mot. 14. The Court has already summarized the relevant information revealed during the ...

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