THE HONORABLE RICHARD A. JONES 1
6 7 8 9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 10 AT SEATTLE 11 ABDIQAFAR WAGAFE, et al., on No. 2:17-CV-00094-RAJ 12 behalf of themselves and others similarly situated, ORDER GRANTING IN PART AND 13 DENYING IN PART PLAINTIFFS’ Plaintiffs, MOTION TO COMPEL 14 v. 15 DONALD TRUMP, President of the 16 United States; et al., 17 Defendants. 18 19 This matter comes before the Court on Plaintiffs’ motion to compel documents 20 withheld under the law enforcement and deliberative process privileges (Dkt. # 260). For 21 the reasons stated below, Plaintiffs’ motion is GRANTED in part and DENIED in 22 part. 23 I. BACKGROUND 24 The facts underlying this lawsuit have been detailed in several previous orders, 25 and the Court assumes familiarity with them. Of particular relevance to this dispute is 26 this Court’s order on April 11, 2018. Dkt. # 148. There, the Court held that the 27 1 Government had failed to properly invoke the law enforcement privilege and ordered it to 2 produce revised privilege logs, detailing the basis for this privilege. Dkt. # 148 at 4-5. 3 Following the Court’s order, the parties continued to meet and confer regarding the 4 Government’s assertion of the law enforcement privilege. Of the many documents that 5 the Government has withheld or redacted under the law enforcement privilege, Plaintiffs 6 have identified 38 that they believe to contain relevant information. Dkt. # 260 at 5. 7 Defendants agreed to review and reproduce the 38 documents with fewer or no 8 redactions. On December 5, 2018, Defendants reproduced the 38 requested documents. 9 Dkt. # 260 at 5. 10 Plaintiffs allege that many of the documents still contain redactions in areas 11 purportedly relevant to Plaintiffs’ claims and now move to compel the production of 25 12 documents without redactions. Id. On October 24, 2019, the Court held a telephone 13 conference and ordered the Government to submit the 25 documents, unredacted, for the 14 Court’s in camera review. Dkt. # 297. 15 II. LEGAL STANDARD 16 The Court has broad discretion to control discovery. Hallett v. Morgan, 296 F.3d 17 732, 751 (9th Cir. 2002); see also Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 18 833 (9th Cir. 2011); In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). That 19 discretion is guided by several principles. Most importantly, the scope of discovery is 20 broad. A party must respond to any discovery request that is not privileged and that is 21 “relevant to any party’s claim or defense and proportional to the needs of the case, 22 considering the importance of the issues at stake in the action, the amount in controversy, 23 the parties’ relative access to relevant information, the parties’ resources, the importance 24 of the discovery in resolving the issues, and whether the burden or expense of the 25 proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). 26 If a party refuses to respond to discovery, the requesting party “may move for an 27 order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). “The party who 1 resists discovery has the burden to show that discovery should not be allowed, and has 2 the burden of clarifying, explaining, and supporting its objections.” Cable & Computer 3 Tech., Inc. v. Lockheed Saunders, Inc., 175 F.R.D. 646, 650 (C.D. Cal. 1997). 4 III. DISCUSSION 5 Plaintiffs seek, and the Government refuses to provide, 25 documents containing 6 law enforcement and deliberative process privilege redactions. As a threshold matter, 7 Plaintiffs take issue with the Government’s privilege logs, claiming that they do not 8 “adequately describe and justify why the privileges apply” to the documents. Dkt. # 269 9 at 3 (noting the Government takes issue with Plaintiffs seeking to compel password 10 formatting instructions, but the privilege logs do not mention password formatting 11 instructions). The Government’s privilege logs are sufficiently detailed. Rule 26(b)(5) 12 requires the party withholding privilege information to “describe the nature of the 13 documents, communications, or tangible things not produced or disclosed . . . in a manner 14 that, without revealing information itself privileged or protected, will enable other parties 15 to assess the claim.” Fed. R. Civ. P. 26(b)(5). Given the volume of documents at issue in 16 this case, the Government cannot be expected to provide an individual explanation for 17 every page containing a redaction or assertion of privilege. 18 Plaintiffs also object to assertion of the third-party law enforcement privilege on 19 behalf of several other law enforcement agencies because the privilege was not raised in 20 the Government’s privilege logs or any of the initial affidavits. Dkt. # 269 at 2. The 21 Government offers no explanation for its failure to raise these additional privilege claims 22 in a timely manner and the Court is inclined to find that the privilege was waived because 23 of this needless delay. However, given the circumstances of this case and the nature of 24 the privilege the Court declines to find a waiver based on this record.1 See Singh v. S. 25
26 1 Although the Court declines to find waiver at this time, the Government is warned that 27 future unexplained delays will not be met with similar leniency. The Government has 1 Asian Soc'y of George Washington Univ., No. CIV A 06-574 RMC, 2007 WL 1556669, 2 at *2 (D.D.C. May 24, 2007) (declining to find waiver of law enforcement privilege 3 “[g]iven the importance of the values that the privilege is designed to protect (i.e., the 4 effective functioning of law enforcement investigations).”). 5 A. Law Enforcement Privilege 6 Turning to the merits of the Government’s privilege claim, the parties agree that 7 three requirements must be met in order to establish the law enforcement privilege: (1) 8 there must be a formal claim of privilege by the head of the department having control 9 over the requested information; (2) assertion of the privilege must be based on actual 10 personal consideration by that official; and (3) the information for which the privilege is 11 claimed must be specified, with an explanation why it properly falls within the scope of 12 the privilege. In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). 13 The parties do not dispute that the Government has satisfied the first two 14 requirements to assert the privilege. See Dkt. # 266-1, Exs. A, D, E, F. In assessing 15 whether the Government has demonstrated the final requirement—i.e., that the 16 information properly falls within the scope of the privilege—the Court must “weigh the 17 public interest in nondisclosure against the [requesting party’s] need for access to the 18 privileged information.” Tuite v. Henry, 98 F.3d 1411, 1417 (D.C. Cir. 1996) (internal 19 quotation marks and modifications omitted).
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THE HONORABLE RICHARD A. JONES 1
6 7 8 9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 10 AT SEATTLE 11 ABDIQAFAR WAGAFE, et al., on No. 2:17-CV-00094-RAJ 12 behalf of themselves and others similarly situated, ORDER GRANTING IN PART AND 13 DENYING IN PART PLAINTIFFS’ Plaintiffs, MOTION TO COMPEL 14 v. 15 DONALD TRUMP, President of the 16 United States; et al., 17 Defendants. 18 19 This matter comes before the Court on Plaintiffs’ motion to compel documents 20 withheld under the law enforcement and deliberative process privileges (Dkt. # 260). For 21 the reasons stated below, Plaintiffs’ motion is GRANTED in part and DENIED in 22 part. 23 I. BACKGROUND 24 The facts underlying this lawsuit have been detailed in several previous orders, 25 and the Court assumes familiarity with them. Of particular relevance to this dispute is 26 this Court’s order on April 11, 2018. Dkt. # 148. There, the Court held that the 27 1 Government had failed to properly invoke the law enforcement privilege and ordered it to 2 produce revised privilege logs, detailing the basis for this privilege. Dkt. # 148 at 4-5. 3 Following the Court’s order, the parties continued to meet and confer regarding the 4 Government’s assertion of the law enforcement privilege. Of the many documents that 5 the Government has withheld or redacted under the law enforcement privilege, Plaintiffs 6 have identified 38 that they believe to contain relevant information. Dkt. # 260 at 5. 7 Defendants agreed to review and reproduce the 38 documents with fewer or no 8 redactions. On December 5, 2018, Defendants reproduced the 38 requested documents. 9 Dkt. # 260 at 5. 10 Plaintiffs allege that many of the documents still contain redactions in areas 11 purportedly relevant to Plaintiffs’ claims and now move to compel the production of 25 12 documents without redactions. Id. On October 24, 2019, the Court held a telephone 13 conference and ordered the Government to submit the 25 documents, unredacted, for the 14 Court’s in camera review. Dkt. # 297. 15 II. LEGAL STANDARD 16 The Court has broad discretion to control discovery. Hallett v. Morgan, 296 F.3d 17 732, 751 (9th Cir. 2002); see also Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 18 833 (9th Cir. 2011); In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). That 19 discretion is guided by several principles. Most importantly, the scope of discovery is 20 broad. A party must respond to any discovery request that is not privileged and that is 21 “relevant to any party’s claim or defense and proportional to the needs of the case, 22 considering the importance of the issues at stake in the action, the amount in controversy, 23 the parties’ relative access to relevant information, the parties’ resources, the importance 24 of the discovery in resolving the issues, and whether the burden or expense of the 25 proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). 26 If a party refuses to respond to discovery, the requesting party “may move for an 27 order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). “The party who 1 resists discovery has the burden to show that discovery should not be allowed, and has 2 the burden of clarifying, explaining, and supporting its objections.” Cable & Computer 3 Tech., Inc. v. Lockheed Saunders, Inc., 175 F.R.D. 646, 650 (C.D. Cal. 1997). 4 III. DISCUSSION 5 Plaintiffs seek, and the Government refuses to provide, 25 documents containing 6 law enforcement and deliberative process privilege redactions. As a threshold matter, 7 Plaintiffs take issue with the Government’s privilege logs, claiming that they do not 8 “adequately describe and justify why the privileges apply” to the documents. Dkt. # 269 9 at 3 (noting the Government takes issue with Plaintiffs seeking to compel password 10 formatting instructions, but the privilege logs do not mention password formatting 11 instructions). The Government’s privilege logs are sufficiently detailed. Rule 26(b)(5) 12 requires the party withholding privilege information to “describe the nature of the 13 documents, communications, or tangible things not produced or disclosed . . . in a manner 14 that, without revealing information itself privileged or protected, will enable other parties 15 to assess the claim.” Fed. R. Civ. P. 26(b)(5). Given the volume of documents at issue in 16 this case, the Government cannot be expected to provide an individual explanation for 17 every page containing a redaction or assertion of privilege. 18 Plaintiffs also object to assertion of the third-party law enforcement privilege on 19 behalf of several other law enforcement agencies because the privilege was not raised in 20 the Government’s privilege logs or any of the initial affidavits. Dkt. # 269 at 2. The 21 Government offers no explanation for its failure to raise these additional privilege claims 22 in a timely manner and the Court is inclined to find that the privilege was waived because 23 of this needless delay. However, given the circumstances of this case and the nature of 24 the privilege the Court declines to find a waiver based on this record.1 See Singh v. S. 25
26 1 Although the Court declines to find waiver at this time, the Government is warned that 27 future unexplained delays will not be met with similar leniency. The Government has 1 Asian Soc'y of George Washington Univ., No. CIV A 06-574 RMC, 2007 WL 1556669, 2 at *2 (D.D.C. May 24, 2007) (declining to find waiver of law enforcement privilege 3 “[g]iven the importance of the values that the privilege is designed to protect (i.e., the 4 effective functioning of law enforcement investigations).”). 5 A. Law Enforcement Privilege 6 Turning to the merits of the Government’s privilege claim, the parties agree that 7 three requirements must be met in order to establish the law enforcement privilege: (1) 8 there must be a formal claim of privilege by the head of the department having control 9 over the requested information; (2) assertion of the privilege must be based on actual 10 personal consideration by that official; and (3) the information for which the privilege is 11 claimed must be specified, with an explanation why it properly falls within the scope of 12 the privilege. In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). 13 The parties do not dispute that the Government has satisfied the first two 14 requirements to assert the privilege. See Dkt. # 266-1, Exs. A, D, E, F. In assessing 15 whether the Government has demonstrated the final requirement—i.e., that the 16 information properly falls within the scope of the privilege—the Court must “weigh the 17 public interest in nondisclosure against the [requesting party’s] need for access to the 18 privileged information.” Tuite v. Henry, 98 F.3d 1411, 1417 (D.C. Cir. 1996) (internal 19 quotation marks and modifications omitted). 20 To achieve this end, a number of factors must be considered, including: (1) the extent to which disclosure will thwart governmental 21 processes by discouraging citizens from giving the government 22 information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which 23 governmental self-evaluation and consequent program improvement 24 will be chilled by disclosure; (4) whether the information sought is 25 repeatedly plagued this Court with unnecessary delays and the Court will not hesitate to 26 award further sanctions, including waiver, if this pattern of behavior continues. 27 factual data or evaluative summary; (5) whether the party seeking 1 discovery is an actual or potential defendant in any criminal 2 proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been 3 completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) 4 whether the plaintiff's suit is non-frivolous and brought in good faith; 5 (9) whether the information sought is available through other discovery or from other sources; (10) the importance of the 6 information sought to the plaintiff’s case. 7 Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973). 8 In support of its privilege claim, the Government submits declarations by the 9 departmental heads of several law enforcement agencies including the U.S. Citizenship 10 and Immigration Services (“USCIS”), Federal Bureau of Investigation (“FBI”), Customs 11 and Board Patrol (“CBP”), and United States Immigration and Customs Enforcement 12 (“ICE”). Dkt. # 266-1, Exs. A, D, E, F. See Dkt. # 166-1. Each of these declarations 13 describes in detail specific potential harms to public safety and national security if the 14 information in these documents is disclosed. Id. This leaves the Court in a difficult 15 position. As Plaintiffs correctly note, the very core of this case relates to USCIS’ vetting 16 procedures and techniques for identifying and prioritizing national security concerns. 17 However, the Court must seriously consider the potential harms and national security 18 risks that the Government alleges could result from the disclosure of the redacted 19 information. 20 After considering the Frankenhouser factors and reviewing the documents in 21 camera, the Court finds that the Government has demonstrated that the public interest in 22 nondisclosure outweighs Plaintiffs’ need for access to some, but not all, of the 23 information that the Government proposes to redact. The Court will address each 24 category of documents in turn. 25 26 27 1 i. Information regarding law enforcement databases 2 The Government argues that the law enforcement privilege protects any 3 information that would allow individuals to access law enforcement databases, including 4 screenshots, unique codes, password formatting information, and other instructions or 5 guidance regarding how to navigate these law enforcement databases. Dkt. # 266 at 7. 6 The Court agrees. The Government has articulated a very real concern that disclosing 7 this information may allow unauthorized users to access these systems. See Dkt. # 266-1, 8 Ex. A at ¶¶ 32-36, Ex. E at ¶¶ 10-15, Ex. F at ¶¶ 15-16. When balanced against these 9 national security risks, the Government’s interest in nondisclosure outweighs Plaintiffs’ 10 need for this information. Plaintiffs’ motion to compel this information is DENIED. 11 ii. Personal identifying information 12 The Government also argues that the law enforcement privilege protects personal 13 identifying information or details from ongoing cases, such as the filing date for a benefit 14 application. See Dkt. # 266-1, Ex. A at ¶¶ 45-47. Disclosure of this information “could 15 permit such individuals to learn of derogatory information possessed by USCIS or other 16 government agencies, and permit bad actors to falsify or misrepresent information or 17 otherwise obstruct USCIS enforcement efforts.” Dkt. # 266 at 8. Plaintiffs do not oppose 18 the redaction of names or other personally identifiable information. Dkt. # 269 at 5. 19 Accordingly, because Plaintiffs’ need for this information is vastly outweighed by the 20 Government’s interest in nondisclosure, Plaintiffs’ motion to compel this information is 21 DENIED. 22 iii. Third-party law enforcement agency information 23 Plaintiffs next seek disclosure of information from third-party law enforcement 24 agencies including the FBI, CBP, and ICE. Dkt. # 269 at 5. As the Court noted in a 25 previous order, these third-party agencies are not defendants in this case and their internal 26 processes and techniques are not at issue. Dkt. # 274 at 4. But, to the extent Defendants 27 rely on third-party agency information to make CARRP determinations, Plaintiffs argue 1 that such information may indeed be relevant to their case. This is a closer call. 2 Declarations submitted by the departmental heads of each of these law enforcement 3 agencies describe significant potential national security risks that could result from the 4 disclosure of this information. Dkt. # 266-1, Exs. D, E, F. In addition, the Government 5 contends that disclosure of this information would thwart future cross-agency information 6 sharing. Dkt. # 266 at 6. Considering all these factors, the Court finds that the potential 7 harms of disclosure of this information outweigh any interest Plaintiffs may have in 8 accessing the information, Plaintiffs’ motion to compel is DENIED. 9 iv. Internal USCIS information 10 Finally, Plaintiffs request information regarding USCIS’ internal vetting 11 procedures and methodologies for identifying risk. As this Court has previously 12 articulated, the internal vetting procedures used by USCIS to identify and screen national 13 security concerns are directly relevant to this dispute. Dkt. # 274 at 5. USCIS is unique 14 in that only some of its functions relate to law enforcement. Am. Civil Liberties Union of 15 S. California v. United States Citizenship & Immigration Servs., 133 F. Supp. 3d 234, 16 245 (D.D.C. 2015). Id. As a result, the Court must analyze its law enforcement 17 privilege claim “with some skepticism.” 18 Here, the balance of factors weighs in favor of disclosure. The withheld 19 information regarding USCIS’ processes is directly relevant to Plaintiff’s claims and does 20 not appear to be obtainable from alternative sources. Furthermore, aside from the 21 Government’s conclusory assertion that an “attorney eyes only” (“AEO”) designation 22 will not “fully protect” this information, the Court finds no basis to conclude that an AEO 23 protective order is inadequate to protect the competing interests involved. MacNamara v. 24 City of New York, 249 F.R.D. 70, 94 (S.D.N.Y.2008) (permitting disclosure under AEO 25 protective order where defendants failed to articulate a non-conclusory basis in support of 26 their assertion that the limited disclosure of such information would pose a risk to the 27 1 safety of law enforcement personnel and/or the integrity of ongoing criminal 2 investigations). 3 With respect to the information regarding USCIS’ internal vetting procedures and 4 techniques, scoring methodologies, indicators of national security concerns, related 5 hypotheticals and examples, and information regarding how USCIS prioritizes risk, 6 Plaintiffs’ motion to compel is GRANTED.2 Consistent the Court’s prior order, these 7 documents may be produced under an attorney’s-eyes-only protective order. See Dkt. # 8 183. These files must bear the “ATTORNEYS EYES ONLY” designation and may only 9 be disclosed to (1) Plaintiffs’ attorneys of record, during such time as they continue to 10 represent Plaintiffs; (2) experts retained by Plaintiffs to the extent reasonably necessary to 11 prepare expert reports and testimony; and (3) the Court. Plaintiffs’ attorneys shall 12 maintain these files in a secure manner, such as a locked filing cabinet or password 13 protected electronic file and shall not transmit these files over any e-mail or cloud-based 14 sharing platform unless the transportation method utilizes appropriate encryption. 15 Plaintiffs’ counsel may not disclose these files, or the newly-unredacted information 16 contained therein (if applicable), to any other individual. The Court expects strict 17 compliance with this directive and will impose severe sanctions if the parties do not 18 follow it. 19 B. Deliberative Process Privilege 20 The Government also asserts deliberative process privilege over 3 of the 25 21 documents. Plaintiffs only seek to lift the deliberative process redactions on one 22 document, DEF-0094269. Dkt. # 260 at 15. The Government argues that DEF-0094269 23 is a pre-decisional policy proposal that was never implemented. Dkt. # 266-1 at ¶ 12. 24 The Court has reviewed the unredacted document provided by Defendants and agrees that 25 2 This decision is subject to the limitations outlined above. For example, if a document 26 that discusses USCIS’ internal vetting processes includes personal identifying 27 information from actual cases, the personal identifying information may remain redacted. 1 the deliberative process privilege applies to this document because it is (1) predecisional 2 and (2) deliberative in nature, in that it relates to “opinions, recommendations, [and] 3 advice about agency policies.” F.T.C. v. Warner Connc’ns Inc., 742 F.2d 1156, 1161 (9th 4 Cir. 1984). In addition, the Court does not believe that this document would be useful in 5 ascertaining whether Defendants are currently administering CARRP in a discriminatory 6 fashion. In addition, the extent to which disclosure of this document could hinder “frank 7 and independent discussion[s] regarding contemplated policies and decisions” weighs in 8 favor of denying the motion. Dkt. # 166-1 at ¶¶ 14-15. Plaintiffs’ motion to compel the 9 production of DEF-0094269 without the deliberative process redactions is DENIED. 10 IV. CONCLUSION 11 For the foregoing reasons, the Court GRANTS in part and DENIES in part 12 Plaintiffs’ motion to compel (Dkt. # 260). Defendants are ordered to reproduce the 25 13 documents in Plaintiffs’ motion consistent with the parameters outlined above within 14 twenty-one (21) days from the date of this order. 15 16 Dated this 16th day of January, 2020. A 17 18 The Honorable Richard A. Jones 19 United States District Judge 20 21 22 23 24 25 26 27