United States of America v. State of California et al

Filing 22

JOINT LETTER BRIEF by Xavier Becerra, Edmund Gerald Brown, Jr, State of California. Attorney Hakl, Anthony R. added. (Hakl, Anthony) Modified on 3/20/2018 (Mena-Sanchez, L).

March 19, 2018
The Honorable Kendall J. Newman
United States District Court
Eastern District of California
501 "I" Street, Suite 4-200
Sacramento, CA 95814
RE:

United States of America v. State of California, et al.
U.S.D.C. E.D. Cal., Case No. 2:18-CV-00490-JAM-KJN

Dear Judge Newman:
The parties respectfully submit this joint letter brief in response to the Court’s Order dated
March 14, 2018.
I.

INTRODUCTION
A.

The State’s Position

The interests of justice require that the State be granted targeted, expedited discovery to
respond to the federal government’s efforts to enjoin three duly enacted laws that California’s
legislature deemed necessary to protect the safety, health, and welfare of California’s residents
(SB 54, AB 450, and AB 103). As the Court well knows, these laws touch on weighty and
important issues that are of great concern to California and her residents. These laws, particularly
SB 54, were debated at length in the legislature and in the public eye and are the product of
extensive negotiations between multiple stakeholders and competing interests. They reflect the
Legislature’s considered views on the appropriate use of state resources, including the proper
priority for state law enforcement and the need for privacy and workplace protection for
Californians, while respecting the role of the federal government over immigration.
Given the federal government’s months of preparation in filing its motion, and the four
lengthy declarations submitted with its motion, totaling 75 pages, the State should be permitted
to inquire into the factual assertions on which the preliminary-injunction motion is based. That is
particularly true where a former federal immigration official has publicly asserted the inaccuracy
of public claims made by one of the declarants, as detailed below. While the State intends to
show in its opposition to the preliminary-injunction that the United States is unlikely to succeed
on the merits of its challenge, discovery here is also necessary to show the United States has
failed to meet its burden of showing irreparable injury.
The expedited discovery requested here has been repeatedly narrowed through the parties’
meet-and-confer process. Although the State will ultimately seek discovery on the merits, the
discovery sought here solely focuses on the purported irreparable harm as described in the four
declarations that support the preliminary-injunction motion, which is exclusively in the United
States’ possession. The United States’ motion relies extensively, and almost exclusively, on
factual assertions from the four declarations to assert that the challenged laws interfere with
federal immigration enforcement. Pl.’s Mot. for Prelim Inj. (“PI Mot.”), ECF No. 2-1 at 34-37.
Depositions of two declarants will provide the State with information essential to responding to
the motion. In addition, the interrogatories and production requests seek information primarily in

the possession of only two federal agencies responsible for immigration enforcement:
Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP). These are
narrow, targeted requests to which the federal government should be able to respond
expeditiously. For these reasons, good cause exists to grant the State’s request.
B.

The United States’ Position

This case concerns the purely legal issues of whether three newly enacted California laws
are preempted and therefore violate the Supremacy Clause. Discovery will shed no light on those
purely legal issues. 1 Defendants have at no time advanced a legally sufficient rationale for why
they believe their requests meet the relevant standard for expedited discovery. During the meet
and confer process, Defendants alleged that they needed expedited discovery to test the
“veracity” of the declarations, particularly that of Thomas Homan, regarding the harm caused by
aliens who have been apprehended for criminal conduct, but then released by California law
enforcement. However, Defendants’ need for such factual information is reduced where, as here,
California’s actions have caused irreparable harm to the constitutional order. Orleans Pub. Serv.,
Inc. v. Council of New Orleans, 491 U.S. 350, 366-67 (1989) (“Irreparable injury may possibly
be established . . . by a showing that the challenged state statute is flagrantly and patently
violative of . . . the express constitutional prescription of the Supremacy Clause.”) (citation
omitted). What is more, California already has the information it seeks, as it is fully aware of the
aliens it has released from custody—whereas the United States often is not—and California
should be in possession of requests for information regarding release and transfer it has received
from the United States, making a discovery request for this information particularly
inappropriate. More importantly, the law at issue, SB-54, sets forth in detail when state law
enforcement agencies must refuse to share release information with or transfer custody to the
United States, making discovery of limited utility given that the parties can assess the law’s
impact based on its provisions.
Counsel for Plaintiff and Defendants met and conferred multiple times via telephone and email over the past week. 2 During those conversations, Defendants repeatedly represented that
they needed two categories of information in order to respond to the pending motion for a
preliminary injunction. First, Defendants all I-247A detainers issued to California law
enforcement jurisdictions in 2018 until the filing of the complaint, and for purposes of
comparison, all I-247As issued during a two month period in 2017. A detainer is issued by DHS
to a law enforcement agency and seeks, among other things, notice of when an alien in state or
local criminal custody is to be released. Second, Defendants requested depositions of the four
declarants whose declarations the United States relies on in support of its motion for preliminary
injunction. Although discovery at this stage is unwarranted, the United States offered, in a spirit
of cooperation, to facilitate the State’s prompt review by providing spreadsheets from ICE and
1

The United States believes this issue can be decided on the papers without need for a hearing.
Defendants rejected the United States’ proposal for exchanging the parties’ respective portions
of this letter brief, which this Court previously characterized as “not [] unreasonable,” ECF No.
21, n.1, and refused to provide their portion until 7:38 P.M. EDT on Saturday, March 17. Thus,
the United States has had only one business day to prepare its portion of this brief.
2

2

CBP that would provide the information regarding detainers Defendants sought. 3 Specifically,
the spreadsheets would contain fields for the name, date of birth, alien number, date the detainer
was issued, and any available associated criminal history. 4 This information, coupled with the
criminal records Defendants already possess, is more than sufficient for Defendants to address
the harm set forth in the declarations regarding the release of criminal aliens by California
without notice to DHS. It would further eliminate any potential basis to seek depositions from
agency heads at this stage.
After rejecting the United States’ offer to resolve this issue, on Friday afternoon at 4:30
P.M. EDT, Defendants for the first time made an entirely new and different proposal—this one
for interrogatories and a vague and ill-defined document production request. This proposal is far
broader than the request for detainer information, will be impossible to satisfy in the 14-day
period, and is not targeted to address the issue California identified as critical, namely, whether
law enforcement agencies in California were now releasing criminals that they previously
transferred to DHS custody. Defendants also persist in their request for depositions.
II.

LEGAL STANDARD FOR SEEKING EXPEDITED DISCOVERY
A.

The State’s Position

Federal Rule of Civil Procedure 26(d) permits early discovery. In the Ninth Circuit, courts
apply a “good cause” standard when evaluating a request for expedited discovery. Trulite Glass
& Aluminum Sols., LLC v. Smith, No. 16-cv-1798, 2016 WL 8738432, at *1 (E.D. Cal. Aug. 10,
2016) (Mendez, J.); First Time Videos, LLC v. Doe, No. 12-cv-621, 2012 WL 1355725, at *2
(E.D. Cal. Apr. 18, 2012). Good cause exists where “the need for expedited discovery, in
consideration of the administration of justice, outweighs the prejudice to the responding party.”
Trulite, 2016 WL 8738432, at *1. “[C]ourts frequently find good cause for expedited discovery
in . . . cases where a preliminary injunction is pending.” Id. at *1 (citing Apple Inc. v. Samsung
Elecs. Co., No. 11-cv-1846, 2011 WL 1938154, at *2 (N.D. Cal. May 18, 2011); see also
Advisory Committee Notes to the 1993 amendments to Rule 26(d) (discovery before the Rule
26(f) conference “appropriate in some cases, such as . . . requests for a preliminary injunction"). 5

3

A spreadsheet was offered to facilitate and expedite review. Defendants’ request likely
encompassed over 10,000 detainers. The spreadsheet could be electronically generated and
provide the information the State sought, while gathering over 10,000 detainers would be time
consuming and burdensome, and result in a production that would be far more time consuming to
review.
4
As discussed in further detail below, this is information Defendants already have.
5
Plaintiff’s assertion that the State must show that it would be “irreparably harmed” absent the
discovery is incorrect. ECF No. 16 at 8. Courts in this circuit have expressly rejected that
standard. See, e.g., Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal.
2002). Regardless, the State would suffer irreparable injury if a preliminary injunction were
granted. Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (“a state suffers
irreparable injury whenever an enactment of its people or their representatives is enjoined.”).
3

B.

The United States’ Position

No discovery is needed to resolve the preliminary injunction motion, which raises purely
legal issues, and where the burden is on the United States as plaintiff to show an entitlement to
relief. Indeed, each of the cases that Defendants cite in support of their request for expedited
discovery involve a plaintiff’s request for expedited discovery. See Trulite, 2016 WL 8738432, at
*1 (permitting plaintiffs limited expedited discovery); First Time Videos, 2012 WL 1355725, at
*4 (granting plaintiff discovery to determine the identity of a Doe defendant); Apple Inc., 2011
WL 1938154, at *3 (denying plaintiffs’ request for early Fed. R. Civ. P. 30(b)(6) depositions
while permitting request regarding product packaging and design). That is because typically, “the
lack of discovery . . . is more prejudicial to Plaintiff than Defendants, since Plaintiff carries the
burden of proof on its motion.” TGI Friday’s Inc. v. Stripes Rests., Inc., No. 1:15-CV-00592,
2015 WL 2341991, at *2 (E.D. Cal. May 13, 2015).
Although Defendants contend that the relevant standard is “good cause,” a higher
preliminary injunction standard is appropriate here. See Patrick Collins, Inc. v. John Does 1
through 37, No. 2:12-CV-1259, 2012 WL 2872832, at *2 n.1 (E.D. Cal. July 11, 2012) (“‘Courts
are split as to whether a party seeking expedited discovery must satisfy a ‘good cause’” standard
or a higher preliminary injunction standard); see Special Situations Cayman Fund, L.P. v. Dot
Com Entm’t Grp., Inc., No. 03–CV–0811, 2003 WL 23350128, at *1 n. 7 (W.D.N.Y. Dec. 5,
2003) (detailing the split). At the very least, when applying the “good cause” standard, a higher
threshold should be met given that it is Defendants seeking discovery and the concomitant delay
that will cause. And even if a showing of good cause is made, California must demonstrate that it
“will be irreparably harmed by delaying the broad-based discovery requested until after the
initial conference between the parties pursuant to Rule 26.” Am. LegalNet, Inc. v. Davis, 673 F.
Supp. 2d 1063, 1066-67 (C.D. Cal. 2009) (internal quotation marks and citation omitted); see id.
(collecting cases); ForceX, Inc. v. Tech. Fusion, LLC, No. 4:11-cv-88, 2011 WL 2560110, at *45 (E.D. Va. June 27, 2011) (courts assess “whether the requesting party has shown a likelihood
of irreparable harm without access to expedited discovery”); Lewis v. Alamance Cnty. Dep’t of
Soc. Servs., No. 1:15-cv-298, 2015 WL 2124211, at *1 (M.D.N.C. May 6, 2015). Indeed,
“discovery is not necessary for Defendants to get fair notice of the evidence Plaintiff will be
relying on in support of its motion. Plaintiff’s evidence was submitted with the motion.” TGI
Friday’s, 2015 WL 2341991, at *2. And even if Defendants can show irreparable harm,
discovery requests must be “narrowly tailored to obtain information relevant to a preliminary
injunction determination.” Am. LegalNet, Inc., 673 F. Supp. 2d at 1066 (collecting cases).
Factors to be considered in making the determination of whether expedited discovery should be
granted include “(1) whether a preliminary injunction is pending; (2) the breadth of the discovery
requests; (3) the purpose for requesting the expedited discovery; (4) the burden on the defendants
to comply with the requests; and (5) how far in advance of the typical discovery process the
request was made.” Id. (internal quotation marks and citation omitted).
III. RELEVANCE OF TRANSFER AND NOTIFICATION REQUESTS
A.

The State’s Position

One area of inquiry that extends throughout the State’s requests for depositions, document
requests, and interrogatories concerns requests made by federal immigration authorities to: (1)
4

transfer a person to DHS custody after completion of a proceeding or investigation for which a
detainee was transferred to state or local custody (“transfer requests”); or (2) notify DHS as early
as practicable (at least 48 hours, if possible) before a detainee is released from state or local
custody (“notification requests”). These requests are relevant to the litigation because one of the
three challenged laws, SB 54, allows California law-enforcement agencies to comply with
notification or transfer requests if the subject of those requests has met the criteria of being
convicted of one of hundreds of offenses identified in California Government Code section
7282.5. See Gov’t Code § 7284.6(a)(1)(C), (a)(4). Plaintiff alleges that these SB 54 provisions
cause irreparable harm by “severely imped[ing] the United States’ ability to identify and
apprehend removable aliens, especially criminal aliens.” PI Mot. at 35; see also id. at 35-37.
B.

The United States’ Position

The discovery sought is irrelevant to the legal issue of whether the California laws violate
the Supremacy Clause. The United States does not dispute that California’s response to DHS
transfer and notification requests are relevant to harm here—particularly when California law
enforcement agencies disregard those requests based on SB 54 with respect to aliens who are
arrested for criminal conduct in California and then released, as those aliens then require at large
apprehension by DHS or may commit further crimes in the United States given high recidivism
rates for those involved in criminal activity. However, relevance is not the legal standard for
expedited discovery. Defendants fail to meet their burden under this standard, and cannot show
that they will be harmed without this discovery. And importantly, as discussed below, the
information that Defendants claim to seek relating to these requests is already in their
“possession, custody, or control” under Fed. R. Civ. P. 34.
IV.

DEPOSITION OF THOMAS HOMAN
A.

The State’s Position

The State seeks to depose Thomas D. Homan, ICE Deputy Director and Sr. Official
Performing the Duties of the Director, for a full-day deposition on fifteen specific topics that
solely relate to the purported irreparable harm caused by the challenged state laws. 6 Homan’s
6

The State has proposed the following topics specific to California for Homan’s deposition: (1)
ICE’s enforcement operations in California, see, e.g., Homan Decl. (ECF No. 2-2, Ex. A) ¶¶
9,18-19, 20, 22, 27, 30, 36-46; (2) policies and procedures regarding ICE’s use of notification
and transfer requests, see, e.g., id. ¶¶ 18, 22, 36-37, 39; (3) ICE’s issuing of notification and
transfer requests to state and local law enforcement, including their compliance with those
requests, see, e.g., id. ¶¶ 22, 24, 27, 39-42, 44-45; (4) the effect of SB 54 on ICE’s
communications and relationships with state and local law enforcement, see, e.g., id. ¶¶ 20, 22,
23-24, 29-30, 74; (5) ICE’s policies and processes for identifying persons potentially removable
from the country, see, e.g., id. ¶¶ 20, 22, 23, 35-36; (6) law enforcement databases that are
accessible to ICE, see, e.g., id. ¶ 23; (7) purported harm caused by AB 103 inspections of civil
immigration detention facilities, see, e.g., id. ¶¶ 47, 60-67, 68; (8) ICE’s contracts with civil
immigration detention facilities, see, e.g., id. ¶¶ 51-53; (9) the federal government’s physical
capacity to hold detainees in civil immigration detention facilities, see, e.g., id. ¶¶ 19, 51-52; (10)
5

declaration represents the crux of the United States’ claims of irreparable harm. The preliminaryinjunction motion refers extensively to Homan’s 44-page declaration, citing it 22 times
throughout the seven pages devoted to irreparable harm. See PI Mot. at 33-37. The United States’
motion relies on a number of conclusory, yet seemingly fact-intensive assertions, that warrant
examination such as how (i): AB 450 “impedes ICE’s ability to conduct [its] operations,” Homan
Decl. ¶ 86, see PI Mot. at 34; (ii) AB 103’s “inspection[s] present[] a burdensome intrusion into
facility operations and pulls scarce resources away from other sensitive law enforcement tasks,”
Homan Decl. ¶ 60, see PI Mot. at 35; and (iii) SB 54 “shield[s] from detection removable aliens
detained in California prisons and jails and obstruct[s] ICE’s efforts to take these aliens into
custody for removal purposes.” PI Mot. at 35 (quoting Homan Decl. ¶ 22). The State has good
cause to cross-examine Homan’s assertions.
The federal government is best positioned to know how it allegedly has been irreparably
harmed by California’s laws. See, e.g., Topic Nos. 4, 7, 11, 14; see also Fed. R. Civ. P. 26(b)
(including “relative access” as a factor informing the scope of discovery). Only ICE can
authoritatively speak to its immigration-enforcement operations or its policies and procedures for
issuing notification and transfer requests, identifying persons potentially removable from the
United States, and granting parole entry requests. See, Topic Nos. 1, 2, 5, 6, 12, 15. And where
other entities may have some of the information on the topics subject to the deposition, ICE is far
better positioned to provide the information than anyone else. See Topic Nos. 3, 8, 9, 10, 13.
Good cause for deposing Homan is further supported by the fact that James Schwab, who
served as an ICE spokesman in its San Francisco office, recently resigned after Homan and the
U.S. Attorney General reportedly made false claims that 800 undocumented immigrants escaped
arrest as a result of statements made by the Oakland mayor. 7 As Schwab said: “I quit because I
didn’t want to perpetuate misleading facts. … I asked them to change the information. I told
them the information was wrong, they asked me to deflect, and I didn’t agree with that.” Id.
B.

The United States’ Position

Defendants assert that they need to depose Deputy Director Homan because his declaration
is the “crux” of the United States’ harm argument. However, the information that the United
States is relying upon to support its motion for a preliminary injunction is contained within the
declaration attached to its motion and, therefore, no deposition is necessary. And contrary to
ICE’s communications with civil immigration detention facilities, see, e.g., id. ¶ 58; (11) SB 54’s
impact on ICE and national security and investigative operations, see, e.g., id. ¶¶ 70-78; (12)
policies for granting parole entry for extradition requests, see, e.g., id. ¶¶ 75-78; (13) ICE’s task
forces with state and local law enforcement agencies, see, e.g., id. ¶¶ 20, 71; (14) impact of AB
450 on ICE’s operational and enforcement activities, see, e.g., id. ¶¶ 84-89; and (15) ICE’s Form
I-9 inspections in California, see, e.g., id. ¶¶ 83-85. The State proposed these topic areas to the
United States at 12:02 am Friday morning, and offered to meet and confer, but the United States
has not offered counter topic areas.
7
Hamed Aleazia, San Francisco’s ICE spokesman quits, disputes agency’s claim that 800
eluded arrest, SAN FRANCISCO CHRONICLE (Mar. 12, 2018),
https://www.sfchronicle.com/bayarea/article/ICE-spokesman-said-to-quit-over-officials12748022.php.
6

California’s assertion, a key injury to the United States is that it does not know when California
law enforcement agencies are releasing criminal alien given that the entire point of SB 54 is to
preclude information-sharing. California, on the other hand, knows when it is releasing aliens,
and by the terms of the statute itself, is not sharing it.
Defendants already have the information necessary to respond to Plaintiff’s motion for a
preliminary injunction, further rendering a deposition unnecessary. Defendants assert that an
expedited deposition is necessary because the United States is in the best position to know how it
has been harmed by Defendants’ actions. But Defendants know their own actions. They, and not
the United States, know about contemplated enforcement under AB 450, they know about the
scope of their completed and threatened inspections under AB 103, and they know which
individuals its law enforcement agencies have declined to notify or transfer to DHS under SB 54.
Release information is within Defendants’ possession, custody and control. “The Attorney
General shall have direct supervision over every district attorney and sheriff and over such other
law enforcement officers as may be designated by law, in all matters pertaining to the duties of
their respective offices, and may require any of said officers to make reports concerning the
investigation, detection, prosecution, and punishment of crime in their respective jurisdictions as
to the Attorney General may seem advisable.” Cal. Const. art. V, § 13 (emphasis added); see Cal.
Penal Code § 13020 (California Attorney General may obtain “statistical data” from state law
enforcement entities). California district courts have affirmed that, if authority to access exists in
state law, as it does here, the Attorney General has control under Fed. R. Civ. P. 34. See Bovarie
v. Schwarzenegger, No. 08CV1661, 2011 WL 719206, at *4 (S.D. Cal. Feb. 22, 2011) (requiring
production when the Code of Regulations allows the Attorney General to obtain records);
Woodall v. California, No. 1:08-CV-01948, 2010 WL 4316953, at *5 (E.D. Cal. Oct. 22, 2010);
Carter v. Dawson, No. 1:07-CV-01325, 2010 WL 1796798, at *2 (E.D. Cal. May 4, 2010); Soto
v. City of Concord, 162 F.R.D. 603, 619–20 (N.D. Cal. 1995).
The proposed scope of the deposition is almost limitless, and appears indistinguishable
from discovery Defendants could seek during the merits stage of this case. Harbor Freight Tools
USA Inc. v. Lumber Liquidators Holdings Inc., No. CV1210789, 2013 WL 12142995, at *3
(C.D. Cal. Jan. 10, 2013) (collecting cases denying expedited discovery when overbroad); Am.
LegalNet, Inc., 673 F. Supp. 2d at 1071; Chubb INA Holdings, Inc. v. Chang, No. 16-2354, 2016
U.S. Dist. LEXIS 82225, at *16-17 (D.N.J. June 24, 2016). Additionally, Deputy Director
Homan is an agency head, and ordering him to prepare and appear for a deposition in short order
is highly burdensome. See In re FDIC, 58 F.3d 1055, 1060 (5th Cir. 1995) (“High ranking
government officials have greater duties and time constraints than other witnesses.”) (internal
quotation marks and citation omitted); K.C.R. v. Cty. of Los Angeles, No. CV 13-3806, 2014 WL
3434257, at *3 (C.D. Cal. July 11, 2014); Cmty. Fed. Sav. & Loan Ass’n. v. Fed. Home Loan
Bank Bd., 96 F.R.D. 619, 621 (D.D.C. 1983).
Although Defendants assert that “good cause” is supported by unconfirmed media reports
that an ICE spokesperson resigned because of certain claims in the media—which are not claims
in Mr. Homan’s declaration—this is an extraordinary basis to believe that a high-ranking United
States government official, who has signed a declaration under penalty of perjury, is not
providing accurate information. Jack v. Trans World Airlines, Inc., 854 F. Supp. 654, 658 n.3
(N.D. Cal. 1994) (stating that statements certifying that they are “true and correct” “under
penalty of perjury under the laws of the United States” make assurances that the document is true
7

and that the person understands the “seriousness of the obligation to tell the truth”). And case
law supports the notion that there must be concrete support when a party seeks to impose
expedited discovery simply because it believes a party is untrustworthy. Hopscotch Adoptions,
Inc. v. Kachadurian, No. CV F-09-2101, 2009 WL 4782160, at *2 (E.D. Cal. Dec. 7, 2009)
(finding early discovery unwarranted based upon “mere supposition” that a party was “capable
of evidence destruction”). Defendants have not met this burden.
Furthermore, courts in this circuit have repeatedly recognized the requests for expedited
depositions are highly burdensome and generally unwarranted, especially when documents—
such as the proposed spreadsheets—are sufficient. See, e.g., Hansen Beverage Co. v. Innovation
Ventures, LLC, No. CIV. 08CV1166, 2008 WL 3992353, at *2 (S.D. Cal. Aug. 28, 2008)
(denying defendant’s request to depose preliminary injunction declarations’ declarants because
party failed to demonstrate need beyond using documents); Sambreel Holdings LLC et al. v.
Facebook, Inc., Case No. 12-cv-668, ECF No. 36, at 9-10 (S.D. Cal. June 18, 2012) (denying
defendant’s request for expedited depositions in response to a preliminary injunction motion
when it had its own evidence). Here, the spreadsheets the United States offered would allow
Defendants to determine who they released and who they transferred to DHS custody, making a
deposition an unjustified fishing expedition at this stage of proceedings that is unlikely to lead to
this information Defendants identify as justifying early discovery.
V.

DEPOSITION OF TODD HOFFMAN
A.

The State’s Position

The State seeks to depose Todd Hoffman, Executive Director, Admissibility and Passenger
Program (APP), Office of Field Operations (OFO) within CBP for a half-day on six specific
topics that solely relate to the purported irreparable harm caused by the challenged state laws. 8
Plaintiff relies on Hoffman’s testimony to support its claims that the challenged laws impose “a
significant burden” on OFO’s “ability to execute its mission,” Hoffman Decl. ¶ 14, see PI Mot.
at 14, and that CBP “faces a deterrent to transferring aliens it encounters to state or local law
enforcement” because of SB 54. Id. at 36-37 (citing Hoffman Decl. ¶¶ 14-18). The State has
good cause to cross-examine these accusations, and all of the information that the State seeks in
Hoffman’s deposition concern issues that the federal government is in the best position to know:
(1) the federal government’s allegations of harm, see, e.g., Topic Nos. 3, 5, 6; (2) the federal
government’s policies, procedures, and practices, see Topic Nos. 1, 2; and (3) information that
the State would otherwise have to get from numerous sources, see Topic No. 4.
8

The State has proposed the following topics specific to California for Hoffman’s deposition: (1)
CBP/OFO’s policies and procedures for use of transfer and notification requests, see, e.g.,
Hoffman Decl. (ECF No. 2-2, Ex. B) ¶¶ 14-17; (2) CBP/OFO’s ability and willingness to
transfer persons in its custody to state and local law enforcement, see, e.g., id. ¶ 17; (3) SB 54’s
impact on CBP/OFO’s communications and relationships with state and local law enforcement,
universities, schools, and employers, see, e.g., id. ¶¶ 8-12, 14-16, 18-19; (4) CBP/OFO’s task
forces with state and local law enforcement agencies, see, e.g., id. ¶¶ 11, 19; (5) SB 54’s impact
on public safety, see, e.g., id. ¶¶ 16, 21; and (6) SB 54’s impact on CBP/OFO’s non-immigration
functions, see id. ¶ 20. The State proposed these topic areas to Plaintiff at 12:02 am morning, and
offered to meet and confer, but Plaintiff has not offered counter topic areas.
8

B.

The United States’ Position

The United States contends that a deposition of Executive Director Hoffman is similarly
unwarranted and unnecessary, and highly burdensome, for the reasons described above.
Should the Court permit expedited depositions, the United States believes that the
depositions should be limited to four hours each, and that time should count against the 7-hour
limit in Fed. R. Civ. P 30(d)(1). See Quia Corp. v. Mattel, Inc., No. C10-01902, 2010 WL
2179149, at *2 (N.D. Cal. May 27, 2010) (limiting expedited depositions to the declarations and
exhibits in support of the preliminary injunction motion and to 3.5 hours apiece). The Court
should also allow reciprocal depositions of the same number of California declarants if sought by
the United States.
VI.

DOCUMENT REQUESTS AND INTERROGATORIES ON TRANSFER AND NOTIFICATION
REQUESTS
A.

The State’s Position

During the meet-and-confer process, the State significantly narrowed its requests about
compliance with transfer and notification requests. The State initially intended to seek all transfer
or notification requests—i.e. I-247-A forms—and data associated with those forms from two
two-month periods before and after SB 54, and associated criminal history information. With
information showing whether jurisdictions comply with notification and transfer requests, the
State could have analyzed whether there was a difference in cooperation with transfer or
notification requests after SB 54 went into effect. With the criminal history information, the State
could have analyzed whether SB 54 had the effect of causing a change in compliance, since law
enforcement may comply with transfer and notification requests for persons who have previously
been convicted of hundreds of any one of criminal offenses. See supra § III(A).
After several days of meeting and conferring, the United States explained that logistic
considerations would prevent it from providing the requested documents on an expedited
schedule. It offered instead to compile and produce a spreadsheet with some data from the I247As. But upon further discussion, the United States revealed that there is no real way for ICE
or CBP to ascertain the number of transfer or notification requests that were complied with. This
meant that the State would be limited, during this expedited discovery period, in the analysis that
it would be able to conduct with the information that the United States proposed providing. 9
Within hours of learning this new information, the State withdrew its request for the I-247A
data, and narrowed its request to address a more fundamental threshold question: can the federal
government show that SB 54 caused a change in compliance with transfer and notification
requests to warrant the extraordinary relief of a preliminary injunction of that law? After
9

The State still believes that a comparison between two periods when matched with criminal
history information is relevant, and reserves its right to seek discovery on this. The State
withdrew its request for this information in response to the United States’ representation of the
potential burden associated with it, and in an attempt to narrow the issues.
9

conferring with Plaintiff that afternoon, the State requested the following: (i) two interrogatories
seeking a description of ICE’s processes for assessing state and local law-enforcement
compliance with notification and transfer requests; and (ii) two document requests seeking
production of all documents and communications that support the allegations in paragraphs 42,
44, and 45 of the Homan declaration and paragraph 15 of the Hoffman declaration. In these
paragraphs, Homan and Hoffman made definitive statements about situations where California
jurisdictions did not respond to a notification or transfer request before a detainee was released.
The State has good cause for these requests because it should have the opportunity to test the
foundations of the declaration testimony, to demonstrate that the United States cannot satisfy the
burden of irreparable harm. The State would be highly prejudiced if it were denied this relevant
discovery to oppose Plaintiff’s motion for preliminary injunction. The State has not received a
response to this proposal it made to Plaintiff on Friday afternoon.
B.

The United States’ Position

As discussed above, the United States offered to provide Defendants information
regarding the I-247As—compiled into spreadsheets from ICE and CBP. The United States
explained that it was willing to provide the spreadsheets to further expeditious resolution of the
pending preliminary injunction motion because it could do so in approximately a two week
timeframe, whereas production of thousands of detainers from the requested two month period in
2017 and from January 4, 2018, until the filing of the complaint would take months, as there is
no way to batch these documents, and a complete production would involve paper forms stored
in individual files. However, instead of accepting this offer, which provides the information
Defendants sought, particularly when combined with Defendants’ own records, Defendants late
on Friday, and with no advance notice, have suggested entirely new discovery.
Defendants’ new requests are not only unwarranted and unnecessary, but are also much
more burdensome than producing the proposed spreadsheets, because the requests for production
seek a variety of documents, instead of simply one category of documents (I-247As).
Defendants’ request for information regarding ICE and CBP’s “processes” is also vague – and
underscores the reality that it is California, not the United States, that knows when aliens are
released from state and local custody, and that the purpose of the law being challenged is to hide
that release information from the United States. Indeed, the declarations do not provide that there
is necessarily one particular process for assessing compliance. Instead, the declarations described
specific instances of non-compliance. Furthermore, to the extent these requests seek internal ICE
and CBP processes and procedures, potentially encompass a significant amount of lawenforcement-sensitive information as well as information potentially protected by the
deliberative process privilege or other privilege.
Most importantly, information relating to DHS “processes” is irrelevant to the resolution
of the pending preliminary injunction motion. It is hard to see why Defendants need this
information—at this expedited stage—when Defendants are already able to determine the
information they seek from their own records. I-247As are sent to Defendants’ own law
enforcement agencies, and Defendants can assess whether or not they were complied with by
examining their law enforcement agencies’ records to determine if the individual was released
without notice to DHS.
10

XAVIER BECERRA
Attorney General of California
THOMAS PATTERSON
Senior Assistant Attorney General
MICHAEL NEWMAN
SATOSHI YANAI
Supervising Deputy Attorneys General
CHRISTINE CHUANG
ANTHONY HAKL
CHEROKEE MELTON
LEE I. SHERMAN
Deputy Attorneys General
State Bar No. 272271
300 S. Spring Street
Los Angeles, CA 90013
Telephone: [phone]
Respectfully Submitted,
XAVIER BECERRA
Attorney General of California
/s/Lee I. Sherman
LEE I. SHERMAN
Deputy Attorney General
Attorneys for Defendants

CHAD A. READLER
Acting Assistant Attorney General
MCGREGOR SCOTT
United States Attorney
AUGUST FLENTJE
Special Counsel
WILLIAM C. PEACHEY
Director
Erez Reuveni
Assistant Director
DAVID SHELLEDY
Civil Chief, Assistant United States
Attorney
JOSEPH A. DARROW
JOSHUA S. PRESS
Trial Attorneys
/s/Lauren C. Bingham
LAUREN C. BINGHAM
Trial Attorney
U.S. Department of Justice, Civil Division
Office of Immigration Litigation
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff

11

CERTIFICATE OF SERVICE
Case Name:

The United States of America v.
The State of California, et al.

No.

2:18-cv-00490-JAM-KJN

I hereby certify that on March 19, 2018, I electronically filed the following documents with the
Clerk of the Court by using the CM/ECF system:
JOINT LETTER BRIEF
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on March 19, 2018, at Sacramento, California.

Tursun Bier
Declarant
LA2018500720
13001726.docx

/s/ Tursun Bier
Signature