Davis Wright Tremaine LLP v. U.S. Customs & Border Prot., No. 19-334, 2020 WL 3258001 (W.D. Wash. June 16, 2020) (Martinez, J.)

Davis Wright Tremaine LLP v. U.S. Customs & Border Prot., No. 19-334, 2020 WL 3258001 (W.D. Wash. June 16, 2020) (Martinez, J.)

Re:  Request for records concerning classifying "'foreign nationals who worked in or with the legal cannabis industry in Canada or the United States [as] "drug traffickers"'"

Disposition:  Granting in part and denying in part plaintiff's motion for summary judgment; granting in part and denying in part defendant's cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[T]he Court is left with too many questions to find that CBP's search was reasonable and adequate as a matter of law."  First, the court finds that defendant searched "only one 'component office' of CBP and CBP does not establish how many component offices it has or how the component offices proportionally relate to each other."  "Second, and more importantly, [defendant's] declarations do not adequately establish that CBP searched for 'all relevant documents.'"  "[Defendant] testifies only that [the office searched] was the office 'most likely' to 'maintain' responsive records."  "CBP does not establish that other component offices were unlikely to possess responsive records."  "Third, even as to the searches within [the office searched], CBP does not establish that its search was reasonably thorough."  Specifically, the court explains that "[defendant] searched for exact phrases that, drawing inferences in Plaintiff's favor, seem unlikely to appear in all (or any) relevant records."  "Such restrictive terms are not reasonable in a search for all relevant records."  "Further, those searches were limited to [certain network drives]" and "CBP provides no indication that these were all the accessible network drives within [the office searched] or why searching others may be unreasonable."  The court also finds that "CBP provides no indication of why further searches were unreasonable."  The court concludes that "the overall search process appears overly fragmented."
   
• "The Court also cannot grant Plaintiff's summary judgment motion in full for many of the same reasons."  However, "the Court finds CBP's email search to be patently unreasonable as a matter of law."  The court explains that "CBP, an agency of more than 60,000, searched the email records of only two individuals."  "That may not be per se unreasonable, but it stands starkly given the unquestionably common use of email to coordinate, communicate, and transmit both formal and informal information at all levels."  The court explains that "CBP further fails to establish that those two custodians were the only ones likely to have responsive records."  The court also takes issue with defendant's search terms used in its email searches.  Additionally, "[t]he Court . . . directs CBP to consult with [one official who plaintiff contends "'may be the only CBP official who has publicly discussed the' relevant issue and is therefore, '"most likely" to know to which policies he was referring'"], process any responsive records he may have, and follow any leads reasonably arising therefrom."