1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NATIONAL TPS ALLIANCE, et al., Case No. 25-cv-01766-EMC
8 Plaintiffs, ORDER DENYING DEFENDANTS’ 9 v. MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER 10 KRISTI NOEM, et al., OF MAGISTRATE JUDGE
11 Defendants. Docket No. 187 12
13 14 The government seeks relief from a discovery order issued by Judge Kim on June 6, 2025. 15 See Docket No. 184 (order). Pursuant to 28 U.S.C. § 636, this Court reviews Judge Kim's 16 discovery order for clear error or a ruling contrary to law. See 28 U.S.C. § 636(b)(1)(A) 17 (providing that “[a] judge may designate a magistrate to hear and determine any pretrial matter 18 pending before the court [with limited exceptions]” and that a judge “may reconsider any pretrial 19 matter . . . where it has been shows that the magistrate judge’s order is clearly erroneous or 20 contrary to law”); see also Fed. R. Civ. P. 72(a); Grimes v. City & Cnty. of S.F., 951 F.2d 236, 241 21 (9th Cir. 1991). In reviewing for clear error, a district judge may not simply substitute his or her 22 judgment for that of the magistrate judge. See id. Rather, a magistrate judge's non-dispositive 23 ruling is clearly erroneous only when a district judge is left with a “definite and firm conviction 24 that a mistake has been committed.” Burdick v. Comm'r Internal Rev. Serv., 979 F.2d 1369, 1370 25 (9th Cir. 1992). 26 Here, the government’s motion for relief is DENIED. Judge Kim invoked the appropriate 27 legal framework in conducting her analysis of the deliberative process privilege (“DPP”), and her 1 record. Upon this Court’s review, the Court finds no clear error or ruling contrary to law. 2 I. DISCUSSION 3 In its motion, the government does not contend that Judge Kim committed any error with 4 respect to her identification of the applicable legal test for the DPP. Nor does the government 5 identify any document within the bellwether set where Judge Kim clearly erred.1 Instead, the 6 government asserts five specific errors by Judge Kim. 7 First, the government suggests that Judge Kim erred by failing to do a document-by- 8 document analysis of the documents over which it claimed the deliberative process privilege 9 (“DPP”). However, the government never made such a request of Judge Kim. See Karnoski v. 10 Trump, 926 F.3d 1180, 1206 (9th Cir. 2019) (“If Defendants persuasively argue that a more 11 granular analysis would be proper, the district court should undertake it.”) (emphasis added). Nor 12 did the government assert to Judge Kim that a bellwether or sampling approach was improper. In 13 fact, a declaration submitted by the government indicates otherwise. See Docket No. 177-4 (Law 14 Decl. ¶ 4) (“It is my understanding that this subset of documents is representative of the types of 15 documents that have been withheld as privileged.”). Finally, even though the declarations 16 submitted by the government identified different categories of documents in the DPP log, nowhere 17 did the government argue to Judge Kim why those different categories were material to her 18 1 If anything, Judge Kim may have been overly generous in finding some documents falling within 19 the privilege. For example, although the fact/opinion distinction is not always dispositive, there are some documents that seem more factual in nature. See, e.g., In Camera Submissions, p. 37 20 (NTPSA_USCIS_1165) (email exchange related to the number of Haitian TPS holders); In Camera Submissions, p. 41 (NTPSA_USCIS_1309) (email exchange noting that drafts were being 21 circulated and input provided, but without including content of the drafts or input). Also, some documents are arguably not predecisional or deliberative. See United States Fish & Wildlife Serv. 22 v. Sierra Club, Inc., 592 U.S. 261, 268 (2021) (“Documents are ‘predecisional’ if they were generated before the agency’s final decision on the matter, and they are ‘deliberative’ if they were 23 prepared to help the agency formulate its position.”). For example, there is an email exchange from January 2025 which includes statements indicating that DHS was looking for rationale that 24 the Venezuela TPS designation should be terminated. See In Camera Submissions, p. 97 (NTPSA_USCIS_1618). It is questionable whether this document was predecisional given that a 25 decision appears to have essentially already been made (i.e., terminate the TPS designation), nor does it seem deliberative if DHS had already formulated its position. See Citizens for 26 Responsibility & Ethics in Wash. v. United States DOJ, 45 F.4th 963, 972 (D.C. Cir. 2022) (“A record is pre-decisional if it was ‘prepared in order to assist an agency decisionmaker in arriving at 27 his decision, rather than to support a decision already made.’ And a record is deliberative if it 1 analysis of the DPP. See Karnoski, 926 F.3d at 1206 (“[I]n balancing the Warner factors [as to 2 when the DPP may be overcome2], the district court should consider classes of documents 3 separately when appropriate. It is not clear the district court did so in this case. The district court 4 appears to have conducted a single deliberative process privilege analysis covering all withheld 5 documents, rather than considering whether the analysis should apply differently to certain 6 categories.”). In short, the government has not demonstrated that the bellwether documents are 7 not representative of the other documents and has pointed to no reason why non-bellwether 8 documents warrant an analysis that materially differs from that in which Judge Kim engaged. 9 Second, the government contends that Judge Kim improperly put the burden on the 10 government to show why the DPP should not be overcome, instead of placing the burden on 11 Plaintiffs to show why the privilege should be overcome. That is not accurate. The government 12 has taken a statement from Judge Kim’s order out of context. See Docket No. 184 (Order at 6) 13 (“Defendants do not provide any analysis for balancing the [Warner] factors and do not explain 14 why the Plaintiffs’ need for the materials and the need for accurate fact-finding overrides 15 Defendants’ interest in nondisclosure. . . ”). The statement, when read in the context of the entire 16 paragraph, demonstrates that Judge Kim did not put the burden on the government but rather 17 “recognized that in the face of Plaintiffs’ clear delineation of need, Defendants offered nothing.” 18 Opp’n at 6; see also Docket No. 184 (Order at 6) (“Plaintiffs cannot obtain this evidence in any 19 other manner, and their arguments have support in evidence. Their need for this evidence on this 20 important topic outweighs the potential chilling effect on future discussions.”). 21 Third, the government argues that Judge Kim disregarded Rule 26(b)(1)’s proportionality 22 standard and demonstrated a “casual” approach to the chilling effect that production of DPP 23 documents would have. Mot. at 3. But, as Plaintiffs point out, this Court placed limits on the 24
25 2 See FTC v. Warner Comm’n, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984) (“The deliberative process privilege is a qualified one.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NATIONAL TPS ALLIANCE, et al., Case No. 25-cv-01766-EMC
8 Plaintiffs, ORDER DENYING DEFENDANTS’ 9 v. MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER 10 KRISTI NOEM, et al., OF MAGISTRATE JUDGE
11 Defendants. Docket No. 187 12
13 14 The government seeks relief from a discovery order issued by Judge Kim on June 6, 2025. 15 See Docket No. 184 (order). Pursuant to 28 U.S.C. § 636, this Court reviews Judge Kim's 16 discovery order for clear error or a ruling contrary to law. See 28 U.S.C. § 636(b)(1)(A) 17 (providing that “[a] judge may designate a magistrate to hear and determine any pretrial matter 18 pending before the court [with limited exceptions]” and that a judge “may reconsider any pretrial 19 matter . . . where it has been shows that the magistrate judge’s order is clearly erroneous or 20 contrary to law”); see also Fed. R. Civ. P. 72(a); Grimes v. City & Cnty. of S.F., 951 F.2d 236, 241 21 (9th Cir. 1991). In reviewing for clear error, a district judge may not simply substitute his or her 22 judgment for that of the magistrate judge. See id. Rather, a magistrate judge's non-dispositive 23 ruling is clearly erroneous only when a district judge is left with a “definite and firm conviction 24 that a mistake has been committed.” Burdick v. Comm'r Internal Rev. Serv., 979 F.2d 1369, 1370 25 (9th Cir. 1992). 26 Here, the government’s motion for relief is DENIED. Judge Kim invoked the appropriate 27 legal framework in conducting her analysis of the deliberative process privilege (“DPP”), and her 1 record. Upon this Court’s review, the Court finds no clear error or ruling contrary to law. 2 I. DISCUSSION 3 In its motion, the government does not contend that Judge Kim committed any error with 4 respect to her identification of the applicable legal test for the DPP. Nor does the government 5 identify any document within the bellwether set where Judge Kim clearly erred.1 Instead, the 6 government asserts five specific errors by Judge Kim. 7 First, the government suggests that Judge Kim erred by failing to do a document-by- 8 document analysis of the documents over which it claimed the deliberative process privilege 9 (“DPP”). However, the government never made such a request of Judge Kim. See Karnoski v. 10 Trump, 926 F.3d 1180, 1206 (9th Cir. 2019) (“If Defendants persuasively argue that a more 11 granular analysis would be proper, the district court should undertake it.”) (emphasis added). Nor 12 did the government assert to Judge Kim that a bellwether or sampling approach was improper. In 13 fact, a declaration submitted by the government indicates otherwise. See Docket No. 177-4 (Law 14 Decl. ¶ 4) (“It is my understanding that this subset of documents is representative of the types of 15 documents that have been withheld as privileged.”). Finally, even though the declarations 16 submitted by the government identified different categories of documents in the DPP log, nowhere 17 did the government argue to Judge Kim why those different categories were material to her 18 1 If anything, Judge Kim may have been overly generous in finding some documents falling within 19 the privilege. For example, although the fact/opinion distinction is not always dispositive, there are some documents that seem more factual in nature. See, e.g., In Camera Submissions, p. 37 20 (NTPSA_USCIS_1165) (email exchange related to the number of Haitian TPS holders); In Camera Submissions, p. 41 (NTPSA_USCIS_1309) (email exchange noting that drafts were being 21 circulated and input provided, but without including content of the drafts or input). Also, some documents are arguably not predecisional or deliberative. See United States Fish & Wildlife Serv. 22 v. Sierra Club, Inc., 592 U.S. 261, 268 (2021) (“Documents are ‘predecisional’ if they were generated before the agency’s final decision on the matter, and they are ‘deliberative’ if they were 23 prepared to help the agency formulate its position.”). For example, there is an email exchange from January 2025 which includes statements indicating that DHS was looking for rationale that 24 the Venezuela TPS designation should be terminated. See In Camera Submissions, p. 97 (NTPSA_USCIS_1618). It is questionable whether this document was predecisional given that a 25 decision appears to have essentially already been made (i.e., terminate the TPS designation), nor does it seem deliberative if DHS had already formulated its position. See Citizens for 26 Responsibility & Ethics in Wash. v. United States DOJ, 45 F.4th 963, 972 (D.C. Cir. 2022) (“A record is pre-decisional if it was ‘prepared in order to assist an agency decisionmaker in arriving at 27 his decision, rather than to support a decision already made.’ And a record is deliberative if it 1 analysis of the DPP. See Karnoski, 926 F.3d at 1206 (“[I]n balancing the Warner factors [as to 2 when the DPP may be overcome2], the district court should consider classes of documents 3 separately when appropriate. It is not clear the district court did so in this case. The district court 4 appears to have conducted a single deliberative process privilege analysis covering all withheld 5 documents, rather than considering whether the analysis should apply differently to certain 6 categories.”). In short, the government has not demonstrated that the bellwether documents are 7 not representative of the other documents and has pointed to no reason why non-bellwether 8 documents warrant an analysis that materially differs from that in which Judge Kim engaged. 9 Second, the government contends that Judge Kim improperly put the burden on the 10 government to show why the DPP should not be overcome, instead of placing the burden on 11 Plaintiffs to show why the privilege should be overcome. That is not accurate. The government 12 has taken a statement from Judge Kim’s order out of context. See Docket No. 184 (Order at 6) 13 (“Defendants do not provide any analysis for balancing the [Warner] factors and do not explain 14 why the Plaintiffs’ need for the materials and the need for accurate fact-finding overrides 15 Defendants’ interest in nondisclosure. . . ”). The statement, when read in the context of the entire 16 paragraph, demonstrates that Judge Kim did not put the burden on the government but rather 17 “recognized that in the face of Plaintiffs’ clear delineation of need, Defendants offered nothing.” 18 Opp’n at 6; see also Docket No. 184 (Order at 6) (“Plaintiffs cannot obtain this evidence in any 19 other manner, and their arguments have support in evidence. Their need for this evidence on this 20 important topic outweighs the potential chilling effect on future discussions.”). 21 Third, the government argues that Judge Kim disregarded Rule 26(b)(1)’s proportionality 22 standard and demonstrated a “casual” approach to the chilling effect that production of DPP 23 documents would have. Mot. at 3. But, as Plaintiffs point out, this Court placed limits on the 24
25 2 See FTC v. Warner Comm’n, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984) (“The deliberative process privilege is a qualified one. A litigant may obtain deliberative materials if his or her need 26 for the materials and the need for accurate fact-finding override the government’s interest in nondisclosure. Among the factors to be considered in making this determination are: 1) the 27 relevance of the evidence; 2) the availability of other evidence; 3) the government’s role in the 1 discovery Plaintiffs sought – e.g., in terms of time period and the number of custodians. 2 Furthermore, the actual number of documents at issue is several hundred, not, e.g., thousands. 3 Hence there is no undue burden in terms of the volume of documents. As noted, the volume of 4 documents at issue is circumscribed in large part by the limitation on scope ordered by this Court. 5 As to the government’s assertion of a chilling effect, that is a factor which informs whether the 6 DPP should be overcome by need, rather than a part of the proportionality analysis under Rule 7 26(b)(2). In any event, the government’s showing of chilling effect was boilerplate and, for 8 reasons stated herein, not substantiated. 9 Fourth, the government points out that Judge Kim’s analysis of the first Warner factor 10 (relevance of the DPP documents) was tied to racial animus, but that the summary judgment 11 motion recently filed by Plaintiffs does not seek relief based on the equal protection claims but 12 rather the APA claims only. The government’s argument lacks merit for several reasons. First, 13 the fact that Plaintiffs are moving for summary judgment on their APA claims alone does not 14 mean that discovery for the equal protection claim is not needed. The equal protection claims 15 remain in the case and is subject to final adjudication. Second, even if the Court were to consider 16 only the APA claims as a basis for current discovery, the discovery sought is still relevant to the 17 APA claims. As Plaintiffs note, “[a]s a matter of logic, evidence of racial animus would support a 18 finding that the challenged decisions rest on pretext, rather than fair-minded policy consideration.” 19 Opp’n at 7. 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 Finally, the government contends — once again — that all discovery is inappropriate in light 2 || of the Supreme Court’s order staying the postponement order issued by this Court. The 3 government maintains that allowing discovery to proceed before the Ninth Circuit and/or Supreme 4 || Court have ruled on the jurisdictional issues is improper. This Court has already rejected this 5 argument. 6 Il. CONCLUSION 7 Accordingly, the government’s motion for relief is denied. 8 This order disposes of Docket No. 187. 9 10 11 IT IS SO ORDERED. a 12
13 |} Dated: June 12, 2025
EDWAR CHEN A 16 United States District Judge
Z 18 19 20 21 22 23 24 25 26 27 28