Ecological Rights Foundation v. Federal Emergency Management Agency

Filing 50

ORDER re 46 Opposition/Response to Motion, filed by Federal Emergency Management Agency, 42 MOTION for Summary Judgment filed by Ecological Rights Foundation. Signed by Judge Maria-Elena James on 5/11/2017. (mejlc3, COURT STAFF) (Filed on 5/11/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ECOLOGICAL RIGHTS FOUNDATION,
Plaintiff,

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v.

Case No. 16-cv-05254-MEJ
ORDER RE: CROSS-MOTIONS FOR
SUMMARY JUDGMENT
Re: Dkt. Nos. 42, 46

FEDERAL EMERGENCY
MANAGEMENT AGENCY,

United States District Court
Northern District of California

Defendant.
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Pending before the Court are the parties’ cross-motions for summary judgment. EcoRights

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Mot., Dkt. No. 42; FEMA Mot., Dkt. No. 46. The parties argued their motions on May 11, 2017.

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Based on the record in this case, the position of the parties, and the relevant legal authority, the

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Court ORDERS the following:

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(1) No later than May 25, 2017, FEMA shall provide to EcoRights a complete, corrected

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production of responsive documents that is consecutively Bates-labeled and that indicates the

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request(s) to which particular documents are responsive. FEMA shall file a notice when it has

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complied with this paragraph.

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(2) No later than May 25, 2017, FEMA shall file a declaration explaining the basis for the

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apparent discrepancy between its position that all responsive documents that are not being

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withheld pursuant to Exceptions 5 and 6 have been produced, and the responses of the third party

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agencies to which FEMA referred documents for review.

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(3) No later than June 8, 2017, FEMA shall file a declaration from a person having

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personal knowledge of FEMA’s efforts to ensure it has not withheld segregable information. The

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declaration shall provide a more complete description of FEMA’s efforts than is currently offered

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by Mr. Neuschaefer in his declaration, for example, by describing FEMA’s process for evaluating

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whether responsive information should be withheld, and its quality-control efforts to ensure its

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redactions are narrowly-tailored.

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(4) No later than June 15, 2017, FEMA shall file a revised Vaughn Index that refers to the

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new Bates-labeled production and offers particularized descriptions sufficient to show the

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exceptions FEMA invokes apply to each document withheld or redacted. See Yonemoto v. Dep’t

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of Veterans Affairs, 686 F.3d 681, 695 (9th Cir. 2012), overruled on other grounds by Animal

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Legal Defense Fund v. U.S. FDA, 836 F.3d 987 (9th Cir. 2016). By this date, FEMA shall

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produce any additional documents it has determined are not properly withheld after this revision

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and/or file a declaration confirming it is not withholding any responsive documents other than

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United States District Court
Northern District of California

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those listed in its revised Vaughn Index.
(5) After reviewing the revised Vaughn Index, EcoRights shall file either a declaration

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challenging specific entries and concisely indicating the basis for the challenges, or a notice

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indicating it does not challenge the revised Vaughn Index.

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(6) The Court notes EcoRights’ argument that FEMA has failed to comply with the

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parties’ settlement agreement. The Court encourages the parties to meet and confer on this issue

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before resorting to motion practice.

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The parties’ cross-motions otherwise are under submission.

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IT IS SO ORDERED.

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Dated: May 11, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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