Lantz v. DOC, No. 17-940, 2018 WL 3637497 (D.D.C. July 31, 2018) (Cooper, J.)

Lantz v. DOC, No. 17-940, 2018 WL 3637497 (D.D.C. July 31, 2018) (Cooper, J.)

Re:  Request for records related to the "Eat More Kale" trademark application

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "To establish the adequacy of a search, an agency 'must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.'"  "Affidavits or declarations that 'adequately describe the agency's search'—such as by stating the search terms used and type of search conducted—satisfy this burden."  The court finds that, "USPTO's . . . two affidavits describing the agency's search procedures . . . strike the Court as adequate."  "[T]he Court is convinced that USPTO conducted a search that it 'reasonably expected to produce the information requested' . . . [and therefore] USPTO's search was adequate for purposes of FOIA."
   
• Exemption 5, Deliberative Process Privilege:  The court notes that, "[w]hile plaintiff is correct that USPTO's justifications are generic and repetitious, it does not follow that they are inadequate."  "The very purpose of a Vaughn index is to allow the summarization of records without disclosing their content; some amount of boilerplate is to be expected."  The court finds, "the Vaughn index here to be adequate."  "All of the relevant records are emails, and the agency has provided the sender, recipient, and subject line for each."  "That information, combined with USPTO's (admittedly generic) invocations of deliberative process privilege, provides a basis from which to conclude that the withheld material is deliberative and predecisional with respect to the “Eat More Kale” application."