Landmark Legal Foundation v. Environmental Protection Agency
82 F. Supp. 3d 211
D.D.C.2015Background
- Landmark Legal Foundation filed a two-part FOIA request on Aug 17, 2012 seeking records of EPA communications with outside persons about pending rules and any orders to delay rules until after the 2012 election; parties narrowed the request to "senior officials in EPA Headquarters."
- EPA issued a litigation hold on Oct 23, 2012 to 45 employees, but did not directly notify former Administrator Lisa Jackson or Deputy Administrator Robert Perciasepe; FOIA coordinators Newton and Wachter handled searches.
- Newton delayed forwarding the narrowed request to the special assistants for the Administrator and Deputy Administrator for about three weeks, a period that included the Nov 6, 2012 election; searches of senior officials’ personal accounts and BlackBerries were incomplete or not done initially.
- EPA produced documents in early 2013, then acknowledged in April–May 2013 that its initial search might have been insufficient and ran supplemental and third searches that produced many additional responsive documents.
- Landmark sought punitive spoliation sanctions (attorney fees, fines) and other relief (independent monitor, IG investigation, additional discovery), alleging EPA deleted or failed to preserve responsive records; EPA argued no bad faith or intentional destruction.
- The Court found serious carelessness and procedural lapses (including lost materials allegedly printed by a deputy assistant and deletion of Jackson’s BlackBerry contents after resignation), but concluded the record lacked clear and convincing evidence of bad-faith spoliation and denied punitive sanctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether punitive spoliation sanctions are warranted | Landmark: EPA deliberately failed to preserve/destroy relevant records to evade FOIA; seeks fees, fines, other punitive measures | EPA: No evidence of bad faith; at worst negligence or delayed searches; supplemental searches remedied deficiencies | Denied — punitive sanctions require clear and convincing proof of bad faith; plaintiff failed to meet burden |
| Whether EPA acted in bad faith in searching senior officials' records | Landmark: delays, omissions (not searching personal accounts/BlackBerries), and inconsistent declarations show intent to evade disclosure | EPA: delays inadvertent; searches performed when deficiencies discovered; no proof of intentional destruction | Court: Conduct suspicious and careless, but insufficient to prove deliberate or reckless intent to destroy evidence in bad faith |
| Adequacy of searches and preservation (including personal accounts/BlackBerries) | Landmark: litigation hold required preservation of ESI including personal accounts; EPA failed to preserve/erase devices and did not search personal accounts timely | EPA: litigation hold sent; supplemental searches conducted; some technical/upload issues; no proof records intentionally destroyed | Court: Searches were deficient and preservation practices troubling; admonishes EPA and recommends better policies, but deficiencies do not justify punitive sanctions |
| Requests for injunctive/extra relief (independent monitor, IG investigation, broad notice, merits ruling on rule delays) | Landmark: extreme remedial steps necessary to ensure future compliance and investigate possible malfeasance | EPA: unnecessary; parties agreed on new search protocol; discovery already ordered and completed; no evidentiary basis for broader remedies | Denied — court finds proposed measures extreme or unnecessary given record and discovery already provided |
Key Cases Cited
- Shepherd v. Am. Broad. Cos., 62 F.3d 1469 (D.C. Cir. 1995) (discusses court's inherent power and standards for sanctions and spoliation)
- Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (courts may impose sanctions, including attorney's fees, for bad-faith conduct)
- Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980) (inherent powers must be exercised with restraint)
- Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770 (D.C. Cir. 1981) (agency affidavits entitled to presumption of good faith)
- Clarke v. Washington Metro. Area Transit Auth., 904 F. Supp. 2d 11 (D.D.C. 2012) (discusses adverse-inference and punitive sanction considerations in spoliation context)
- Chen v. District of Columbia, 839 F. Supp. 2d 7 (D.D.C. 2011) (noting courts generally award fees when clear-and-convincing evidence shows destruction in bad faith)
- Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002) (culpable state of mind for adverse inference may be satisfied by negligence)