Judge Lamberth's Contempt Order Against the EPA

07/24/2003

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LANDMARK LEGAL FOUNDATION,

Plaintiff, Civil Action No. 00-2338 (RCL)

v.

ENVIRONMENTAL PROTECTION AGENCY,

Defendant.

MEMORANDUM OPINION

This comes before the Court on the plaintiff's motion for civil contempt [50], the memoranda in opposition of EPA [55], Gary Guzy [54], Michael McCabe [56], and Carol Browner [59], and Plaintiff’s reply [58]. Also before the Court is Plaintiff’s Motion for Sanctions [26], which predates its motion for contempt, defendant’s response [30], and plaintiff’s reply [32]. Upon consideration of the briefing, the law, and the record in this case, the Court will deny the motion as to Gary Guzy, Michael McCabe, Carol Browner, and the United States Attorney’s Office. EPA will be held in contempt, and ordered to pay sanctions in the amount of Landmark’s legal fees and costs expended as a result of EPA’s contumacious conduct. Plaintiff’s motion for sanctions [26] is moot in part as to legal fees and costs incurred as a result of EPA’s contumacious conduct, and will be denied in part as to fees and costs unrelated to the contempt.

I. Background

Plaintiff filed a FOIA request with defendant EPA on September 7, 2000, seeking "[i]dentification of all rules or regulations for which public notice has not been given, but which public notice is planned by the EPA between September 7, 2000 and January 20, 2001, including but not limited to the rules or regulations referenced in the attached news article" and various types of documents relating to those rules and regulations. The news article indicated that EPA was attempting to push through certain regulations before the administration change. Dissatisfied with EPA’s response, Plaintiff filed the instant suit on September 29, 2000. Concerned about the imminent change in administration, the parties appeared before the Court on January 19, 2001 on Plaintiff’s application for a preliminary injunction to prevent the destruction of responsive materials. Although EPA represented to the Court that the responsive material was in no danger, the Court on January 19, 2001 issued a preliminary injunction [15] ordering "that Environmental Protection Agency and its agents and employees are enjoined from transporting, removing or in any way tampering with information potentially responsive to Landmark Legal Foundation’s September 7, 2000, Freedom of Information Act request." Despite the Court’s order, the hard drives of several EPA officials were reformatted, email backup tapes were erased and reused, and individuals deleted emails received after that date. Based on these activities, which were brought to light by EPA’s May 16, 2001 Status Report to the Court [42] and the deposition of Myra Galbreath, Landmark filed this motion for contempt [50].

II. EPA

A. Specificity of Court’s Preliminary Injunction

A preliminary matter the Court must determine before proceeding to the merits of the contempt motion against EPA is whether the Court’s January 19, 2001 order satisfied the particularity requirement for contempt and the specificity mandated by Rule 65(d). Civil contempt lies only for violation of a clear and unambiguous order. Armstrong v. EOP, 1 F.3d 1274, 1289 (D.C. Cir. 1993). EPA concedes that as to itself, the order is reasonably clear and specific as that phrase is applied to contempt. EPA Response [55] at 5.(1) Additionally, Rule 65(d) provides in part that an order granting an injunction "shall be specific in terms" and "shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained." Fed. R. Civ. P. 65(d). The relevant text of the Court’s preliminary injunction orders "that Environmental Protection Agency and its agents and employees are enjoined from transporting, removing or in any way tampering with information potentially responsive to Landmark Legal Foundation’s September 7, 2000 Freedom of Information Act request," and thus in part refers to another document to define its terms.

Courts are split on whether Rule 65(d) requires a strict interpretation. See, e.g., Consumers Gas & Oil, Inc. v. Farmland Indus., Inc., 84 F.3d 367, 371 (10th Cir. 1996) (observing split of authorities). In adopting a strict construction, the court in Consumers Gas & Oil, Inc. v. Farmland Industries, Inc., 84 F.3d 367 (10th Cir. 1996), advanced two reasons for the Rule’s specificity requirement: "(1) to prevent confusion on the part of those faced with injunctive orders and (2) to aid the appellate court in defining the bounds of the injunctive relief." Id. at 371 (citation omitted); see generally Seattle-First Nat’l Bank v. Manges, 900 F.2d 795, 800 (5th Cir. 1990) (calling Rule 65(d) "an important procedural safeguard"). The Courts that have adopted a less literal approach to the rule have done so in light of these rationales.

The Supreme Court has explained that the Rule "was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood." Schmidt v. Lessard, 414 U.S. 473, 476 (1974). The D.C. Circuit has taken a practical approach to Rule 65(d), stating that "[i]n the context of the litigation, an injunction’s language might be sufficiently specific to notify the parties of the acts the court seeks to restrain," despite its reference to another document. Common Cause v. Nuclear Regulatory Comm’n, 674 F.2d 921, 927 (D.C. Cir. 1982). That is, Rule 65(d)’s fair notice requirement is to be applied "'in the light of the circumstances surrounding (the injunction’s) entry: the relief sought by the moving party, the evidence produced at the hearing on the injunction, and the mischief that the injunction seeks to prevent.’" Id . (citation omitted).

Other circuits agree. Where an injunction incorporates by reference a document with which the enjoined party is familiar, the primary purpose of Rule 65(d) is served, and adequate notice is provided to parties who could face contempt for violation of the order. Davis v. City & County of San Francisco, 890 F.2d 1438, 1450 (9th Cir. 1989). Again, where the "record of the proceedings relating to the proposed injunction amply demonstrate [a party’s] grasp of these documents and its complete acquiescence in the reference to them," the fair notice requirement of Rule 65(d) is satisfied, and contempt may lie for failure to obey the injunction. Perfect Fit Indus., Inc. v. Acme Quilting Co., Inc., 646 F.2d 800, 809 (2nd Cir. 1981). The basic inquiry is "whether the parties subject to the injunctive order understood their obligations under the order." Williams v. City of Dothan, Ala., 818 F.2d 755, 761 (11th Cir. 1987).

In this case, the injunction refers to Landmark’s FOIA request in defining the boundaries of what may not be removed or destroyed, and could be construed to be in conflict with Rule 65(d).

However, this is not dispositive. At the January 19, 2001 hearing, counsel for EPA reviewed the order and stated, "I can live with this order." Tr. of Jan. 19, 2001 hearing at 31. Counsel’s statements throughout the hearing indicate that EPA understood the nature of the FOIA request referenced in the order. For instance, counsel represented that EPA would complete its response to the request by February 16, less than one month from the hearing date. Tr. at 27-28. Counsel also stated that previous difficulties could have been resolved "if we had had the request refined early on," Tr. at 26-27, indicating that by the time of the January 19 hearing the request (or at least EPA’s understanding of it) had been refined. Thus, the Court finds that the order satisfies the notice requirement of Rule 65(d), and is not too vague to support a finding of contempt.

B. Contempt Power
This Court has the inherent power to protect its integrity and to prevent abuses of the judicial process by holding those who violate its orders in contempt and ordering sanctions for such violations. Cobell v. Babbitt, 37 F. Supp. 2d 6, 9 (D.D.C. 1999) (Lamberth, J.). For contempt to issue, two conditions must be present: (1) the existence of a reasonably clear and specific order, which the Court has already determined in the affirmative supra, and (2) violation of that order by the defendant. Id. The evidence supporting a finding of contempt must be clear and convincing. Id. It is important at the outset to distinguish between civil contempt proceedings–such as the present action–and criminal contempt proceedings. The D.C. Circuit has explained that:

Traditionally, whether a contempt is civil or criminal has depended on the character and purpose of the sanction. A sanction is considered civil if it is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.

Evans v. Williams, 206 F.3d 1292, 1294-95 (D.C. Cir. 2000) (internal quotations omitted); see also 11A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2960, at 369 ("In general, . . . a contempt of court for which punishment is inflicted for the primary purpose of vindicating public authority is denominated criminal. Those in which the ultimate object of the punishment is the enforcement of the rights and remedies of a litigant are civil contempts.").

Because the purpose of a civil contempt proceeding is to vindicate the rights of the non-violating party, not to punish the violator, the relief granted will be either coercive or compensatory in nature. The Supreme Court has explained that the paradigmatic coercive sanction "involves confining a contemnor indefinitely until he complies with an affirmative command such as an order to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance." Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828 (1994) (citations omitted). Another frequently-imposed coercive sanction is incarceration; in such cases, the contemnor is said to "carr[y] the keys of the prison in his own pocket" because compliance with the Court’s order will result in an early release from imprisonment. Id. But courts may also award compensatory relief to the wronged party in a civil contempt proceeding. Id. at 838 ("Our holding . . . leaves unaltered the longstanding authority of judges . . . to enter broad compensatory awards for all contempts through civil proceedings."). Thus, a court may order a civil contemnor to compensate the injured party for losses caused by the violation of the court order, and such an award will often consist of reasonable costs (including attorneys’ fees) incurred in bringing the civil contempt proceeding. See, e.g., Cobell v. Norton, No. 02-5374, Slip. Op. at 23 (D.C. Cir. July 18, 2003) (citing Int’l Union, United Mine Workers v. Bagwell, 512 U.S. 821, 827 (1994)); Dow Chem. Co. v. Chem. Cleaning, Inc., 434 F.2d 1212, 1215 (5th Cir. 1970) ("There are contempt cases in abundant number holding that a court has discretion to award reasonable attorney’s fees and other expenses necessary to make an innocent party whole." (citations omitted)); see also Doug Rendleman, Compensatory Contempt: Plaintiff’s Remedy When a Defendant Violates an Injunction, 1980 U. ILL. L.F. 971, 972 ("[The goal of compensatory contempt is to indemnify the plaintiff directly for the harm the contemnor caused by breaching the injunction. Courts utilize compensatory contempt to restore the plaintiff as nearly as possible to his original position. The remedy is not penal, but rather remedial."). The contempt sanction here, Landmark’s attorneys fees and costs caused by EPA’s contumacious conduct, is designed to compensate Landmark, rather than punish EPA. Bagwell, 512 U.S. at 827-28 ("[A] contempt sanction is considered civil if it is ‘remedial, and for the benefit of the complainant . . . .’" (citation omitted)).

In criminal contempt proceedings, the putative contemnor must have willfully violated the court’s order. United States v. Young, 107 F.3d 903, 907 (D.C. Cir. 1997); NLRB v. Blevins Popcorn Co., 659 F.2d 1173, 1183-84 (D.C. Cir. 1981). "Willfulness" in this context has been defined as a "deliberate or intended violation, as distinguished from an accidental, inadvertent or negligent violation." TWM Mfg. Co. v. Dura Corp., 722 F.2d 1261, 1272 (6th Cir. 1983). But a violation need not have been willful to support a finding of civil contempt. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949) (explaining that since the purpose of civil contempt is remedial, "it matters not with what intent the defendant did the prohibited act."); Food Lion, Inc. v. United Food & Commercial Workers Int’l Union, 103 F.3d 1007, 1016 (D.C. Cir. 1997) (observing that "the law is clear in this circuit that ‘the [contemnor’s] failure to comply with the court decree need not be intentional" and that a "finding of bad faith on the part of the contemnor is not required." (emphasis in original))(2); Cobell, 37 F. Supp. 2d at 36. For purposes of civil contempt, "the intent of the recalcitrant party is irrelevant." NLRB v. Blevins Popcorn Co., 659 F.2d 1173, 1184 (D.C. Cir. 1981).

Finally, civil and criminal contempt differ in that the proceedings are directed by different parties. A civil contempt proceeding is initiated by the party alleging that it was harmed by the violation of a court order. See In re Magwood, 785 F.2d 1077, 1081 n.9 (D.C. Cir. 1986) (asserting that normally an aggrieved party should initiate civil contempt proceedings). By contrast, it is the court that makes the initial decision whether a criminal contempt proceeding should take place. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807 (1987). Once initiated, the court should request the appropriate prosecuting authority to prosecute the criminal contempt action and should appoint a private prosecutor only if that request is denied. Id. at 801. It has been held to be reversible error to appoint counsel for an interested party in the proceedings to be a private prosecutor. See id. at 814.

C. Violation of the Court’s Order

The Court has already determined that the order was reasonably clear and specific. The next step in the contempt inquiry is whether, by clear and convincing evidence, EPA violated the order. On May 16, 2001, EPA submitted a status report [42] to the Court, detailing EPA’s response to Landmark’s FOIA request and to the Court’s January 19 order. The status report notes that former EPA Administrator Carol Browner’s hard drive was reformatted on January 19, the date the preliminary injunction issued and in violation of that injunction. Status Report [42] at 4, 9. In addition, former Associate Deputy Administrator Dawn Martin’s hard drive was reformatted on or around February 2, 2001, id. at 5, 13, Michael McCabe’s on or around February 2, 2001, id. at 5 14, and Gary Guzy’s on or around March 2, 2001, id. at 5-6, 15. (3) Corina Cortez’s hard drive had been reformatted because it had become corrupted and unuseable "sometime before" January 19, 2001, which was her last day in office. (4) Id. at 5, 12. The status report states that Guzy’s computer had been checked for responsive documents before it was reformatted, but it is unclear if those of McCabe, Martin, and Cortez had been searched. Id. at 6, 16.

Each night, EPA backs up the email system to tape, capturing the emails sitting in each inbox at the end of that day. These backup tapes would therefore capture responsive documents that remained on the EPA email system at that time. Backup tapes are normally preserved for 90 days, and then erased and reused. Myra Galbreath, a division director of the Headquarters and Desk Top Services Division of the Office of Environmental Information, testified that the practice of erasing and reusing email backup tapes continued after January 19–despite the Court’s order–until late April. May 14, 2001 Deposition of Myra Galbreath at 24-42. At the time the erasures finally ceased, the earliest remaining tapes were from on or about February 2. Id. These hard drive reformattings and email backup tape erasures were contumacious. EPA does not dispute that they occurred. Therefore, EPA acted in contempt of the Court’s order.

D. Good Faith Substantial Compliance Defense

EPA argues that it should not be held in contempt under the good faith substantial compliance defense to civil contempt. As the name implies, this defense has two elements. The contemnor must show "(1) a good faith effort to comply with the court order at issue; and (2) substantial compliance with that court order." Cobell v. Babbitt, 37 F. Supp. 2d 6, 10 (D.D.C. 1999) (Lamberth, J.). Putting forth a good faith effort unaccompanied by substantial compliance may be relevant to appropriate sanctions, but will not avoid contempt. Id.

"Good faith" means that the party undertook "all reasonable steps within [its] power to comply with the court’s order." Cobell, 37 F. Supp. 2d at 23. EPA concedes that it did not take "all effective steps" to comply with the order. EPA Response [55] at 27. The Court will take it at its word, and briefly elaborate. Far from taking all reasonable steps, EPA’s Office of General Counsel took no immediate steps to comply with the January 19 order. Betty Lopez, new to EPA as Associate Director of FOIA Operations, attended the January 19 hearing. Upon her return to the office, she notified John Heinz, Attorney-Advisor at EPA, that the Court would grant the injunction. May 16 Status Report [42] 11. Mr. Heinz directed Ms. Lopez to call Robert Friedrich, Deputy Associate General Counsel, to inform him, which she did. Id. Mr. Friedrich, however, took no steps to either procure or disseminate the order. Instead, he sent out an email time-stamped at 8:19 p.m. on January 19, 2001, to Anna Wolgast, Deputy General Counsel, stating that "such an injunction will have no effect on what EPA would do, because numerous messages have already been sent telling people not to destroy, delete, or remove any responsive or potentially responsive records." Report of Inspector General [72] at App. 34. Apparently placing his faith in this belief, rather than immediately acting to investigate the matter and ensure compliance with the Court order, Mr. Friedrich stated that he would "know more on Monday" and that he or Mr. Heinz would "probably be sending around another email to inform the relevant offices and persons of the results of the court hearing and what they need to do to comply with whatever order the court issues." Id. In fact, Mr. Heinz did not receive a copy of the order until January 23, 2001, and did not send out an email to advise EPA employees that they were subject to the order until January 26, 2001. May 16 Status Report [42] 11. This inaction at the OGC is not the performance of duty the Court would expect from career government lawyers, and prevents a finding that all reasonable steps were taken to comply with the January 19 order.

In its briefing, Landmark makes much of EPA’s efforts to preserve documents for the second-hand smoke tobacco litigation. In her deposition, Galbreath testified that the General Counsel’s office sent out a memo directing that all email backup tapes be preserved after a court order issued in that case. Galbreath Depo. 26-27, 87-88. EPA’s briefing explains that the order was a document preservation order in United States v. Phillip Morris, 99-CV-2496 (D.D.C.) Order #1 [9] 7 ("Each party shall preserve all documents and other records containing information potentially relevant to the subject matter of this litigation."). EPA Response [55] at 22. A memo like the one issued in the tobacco litigation was not sent out in this case until May 5, 2001, months after the January 19 order. Galbreath Depo. at 38-41. Failure to issue a memorandum on the Court’s injunction–which was essentially a preservation order similar to the one entered in the tobacco litigation–proves up EPA’s concession that it did not take all reasonable steps.

The only post-January 19 step EPA recounts as constituting a good faith reasonable effort was the January 26, 2001 email sent by John Heinz "to a wide distribution list" alerting the recipients that the Court had entered a preliminary injunction and cautioning that all EPA agents and employees were subject to the order. EPA Response [55] at 27. However, the distribution was not wide enough to include IT staff responsible for the preservation of the email backup tapes, Landmark Reply [58] at 22, and was thus ineffective to stop the erasure of the tapes. Nor was it sent to Michael McCabe, Acting Administrator at that time. McCabe depo. at 47. This single asserted effort to comply with the Court’s order did not constitute "all reasonable steps," and thus does not satisfy the first prong of the good faith substantial compliance defense.

The second prong of the defense is substantial compliance with the Court’s order. Cobell, 37 F. Supp. 2d at 10. EPA does not advance any arguments indicating substantial compliance, nor could it. Hard drives were reformatted, and email backup tapes were erased, in direct contravention of the Court’s order. These items constitute a large part of the universe of potentially responsive electronic documents. EPA argues that because it is now in compliance with the order, a contempt finding is unnecessary. The Court disagrees. It is appropriate to use the contempt power to identify wrongdoing and to prevent the recurrence of contumacious behavior in the future. Chambers v. Nasco, Inc., 501 U.S. 32, 55-56 (1991) (rejecting an argument that sanctions cannot be imposed except for deterrence). These ends are not diminished by EPA’s too-little too-late efforts to obey the injunction.

III. United States Attorney’s Office

Landmark argues that the United States Attorney’s Office should be held in contempt for its participation in the conduct of this lawsuit. Landmark asserts that the USAO made representations to the Court that time proved to be untrue. At the January 19, 2001 hearing, for instance, the USAO represented that EPA would complete its response to Landmark’s September 7 FOIA request by February 16; the response was not completed by that date. Also at that hearing, the USAO stated that the Court need not enter the injunction, as all responsive materials would be preserved under the National Archive and Records Administration (NARA) guidelines; the reality is that neither NARA nor the Court’s order prevented the destruction of potentially responsive material. On March 7, 2001, the USAO stated to Landmark that Browner’s office had been searched, but reported on March 27 that it had not been searched. Finally, on April 27, 2001, the USAO informed Landmark that some officials’ hard drives had been reformatted. The upshot, Landmark claims, is that the USAO did not take steps to ensure that EPA complied with the Court’s order.

There is no question that this Court is disappointed in the behavior of the USAO in this case. At the May 18, 2001 hearing, the Court chastised the USAO for its representations at the January 19 hearing on the injunction:

[E]very word spoken to me at that hearing []turns out to be false as well. Every word spoken to me in that hearing was I did not need to enter the injunction, [J]udge, because EPA can be trusted to do this. You don’t need to enter an order. Trust us. We are going to do this.

May 18 2001 hearing tr. at 5-6.

Likewise, the Court finds disappointing the USAO’s failure to immediately transmit the Court’s written order to EPA and lack of efforts to ensure that EPA officials were familiar with and followed the order. The USAO received a faxed copy of the Court’s order the afternoon of January 19, and faxed it to EPA January 23, several days later and only upon the request of an EPA employee. The USAO defends its failure to communicate with EPA in a more timely manner by noting that an EPA employee, Betty Lopez, Associate Director of Freedom of Information Operations, attended the hearing and thus EPA was aware that the Court would enter the injunction. EPA Response [55] at 24-25. In the same breath, however, the USAO concedes that Lopez had been at EPA only twelve days; Lopez is not an attorney. Reliance on a non-attorney two-week employee to immediately grasp the significance of the Court’s statement and communicate the order to the entire EPA is a slender reed indeed. (5) Furthermore, an injunction does not become an injunction until it is reduced to writing, Bates v. Johnson, 901 F.2d 1424, 1427 (7th Cir. 1990), and Lopez did not receive a signed, written copy of the order because it was not signed until sometime after the January 19 hearing had recessed. EPA had to rely on its lawyers–who receive service on its behalf–to supply it with the order. Far from automatically and immediately passing the order along to its client, however, the USAO awaited not one but two requests from EPA before finally faxing the order to it. The order was signed and faxed to the USAO on January 19. On January 22, 2001, John Heinz, Attorney/Advisor with EPA, called the AUSA on the case to request a copy of the order. On January 23, Mr. Heinz again requested the order, this time in an email. At that time the AUSA finally faxed a copy of the order to Mr. Heinz. EPA’s May 16 Status Report [42] at 4, 11.

Nonetheless, these actions do not violate the Court’s order, which proscribes removing, destroying, or tampering with potentially responsive information. While the Court finds the USAO’s behavior in this case far below what it expects of officers of the court charged with zealously representing their clients, the Court will not find the USAO in contempt of the January 19 order because such orders must be read narrowly for contempt purposes. See Armstrong v. EOP, 1 F.3d 1274, 1289 (D.C. Cir. 1993) (reversing contempt because "[t]he district court’s . . . order did not expressly direct the appellants to promulgate new regulations," but merely invalidated the existing ones). Here, the order did not specifically direct the USAO to communicate with its client.

The Court notes the turnaround in the conduct of this case by the USAO since the January 19 hearing. When it was discovered that EPA had destroyed documents in contravention of this Court’s order, the newly assigned Assistant U. S. Attorney on the case immediately disclosed these activities to the Court in a written report. See May 16, 2001 Status Report [42]. The USAO has cooperated fully with the IG and this Court to uncover exactly what went wrong in this case. This forthrightness and cooperation are of the caliber of integrity and legal work the Court expects from the USAO.

IV. Individuals

For a variety of reasons, the Court finds that it is not appropriate to issue findings of contempt against the individuals named by Landmark: Carol Browner, Michael McCabe, and Gary Guzy. First, Browner and McCabe were not familiar with the terms of Landmark’s September 7, 2000 FOIA request, and thus as to them the January 19, 2001 order, which referred to the FOIA request in defining the parameters of the preliminary injunction, was not sufficiently particular to satisfy Rule 65(d). Second, none of the named individuals had any notice of the order. As agents and employees of EPA, they were subject to the order; however, the Court will practice restraint in invoking its inherent power to find contempt based on this circumstance. Finally, the evidence is not clear and convincing that Browner or Guzy violated the order.

A. Clear and Unambiguous

As the Court noted above, to form the basis for contempt an order must be clear and unambiguous. Armstrong v. EOP, 1 F.3d 1274, 1289 (D.C. Cir. 1993). In taking a flexible approach to Rule 65(d)’s requirement of specificity, the Court must examine the circumstances to ensure that the party sought to be held in contempt had fair notice of the content and import of the order. Common Cause v. Nuclear Regulatory Comm’n, 674 F.2d 921, 927 (D.C. Cir. 1982) ("In the context of the litigation, an injunction’s language might be sufficiently specific to notify the parties of the acts the court seeks to restrain.").

While the order was specific enough to give EPA notice of what was enjoined, based on the collective knowledge of the entity, the Court must conduct a separate inquiry to determine whether the order was drafted with sufficient specificity to notify the named individuals against whom Landmark seeks contempt. Browner testified that she did not learn of Landmark’s FOIA request or lawsuit while she was at EPA, and thus was unfamiliar with the parameters of that request. June 22, 2001 Deposition of Carol Browner at 7-11 (first heard of Landmark litigation after she left EPA); 142-144 (did not learn of injunction until after she left EPA); 157-169 (did not hear of Landmark’s FOIA request or lawsuit during tenure at EPA). The term "September 7 Freedom of Information Act request" as used in the January 19 order did not have the specificity required by Rule 65(d) to give her notice of what was enjoined. Therefore, as to her, the order does not meet the standards of Rule 65(d), and a finding of contempt cannot be based upon it

Similarly, McCabe asserted that he was unaware of the specifics of Landmark’s FOIA request. June 20, 2001 Deposition of Michael McCabe at 43. Although he testified that he had been informed generally that Landmark had filed a FOIA request by Maryann Froelich, he was not informed of the terms of the request with any specificity. Tr. at 22-25. As with Browner, then, the order did not contain the requisite particularity to satisfy Rule 65(d). As to Guzy, however, the order is sufficiently specific. Guzy became familiar with the scope of Landmark’s September 7, 2000 FOIA request during his tenure at EPA; he testified that he printed out descriptive emails to facilitate his search for responsive documents. Tr. at 46-47, 77-79, 92. Because he was familiar with the FOIA request, the Court’s reference to the request does not violate Rule 65(d)’s notice requirement, and as to Guzy the order is clear and unambiguous. (6)

B. Notice

The form of the January 19, 2001 Order [15] was proposed by Landmark, and was signed in the proposed form with some handwritten insertions. The relevant insertion for this discussion is in italics: "it is further ORDERED that Environmental Protection Agency and its agents and employees are enjoined from transporting, removing, or in any way tampering with information potentially responsive" to Landmark’s September 2, 2000 FOIA request. The Court explained that it was including the language "to make sure that people understand they’re personally accountable to the extent they learn of the order." Tr. of Jan. 19, 2001 hearing at 29. To find contempt, it need not be proven that a party to an order had actual notice of that order. NOW v. Operation Rescue, 747 F. Supp. 772, 775 (D.D.C. 1990) (Oberdorfer, J.), vacated in part on other grounds by 37 F.3d 646 (D.C. Cir. 1994). By contrast, no