Ibrahim v. Department of Homeland et al

Filing 416

ORDER REGARDING PRIVILEGE LOGS FOR NON-CLASSIFIED DOCUMENTS re 415 Letter filed by Rahinah Ibrahim, 407 Order,, 413 Letter Brief, filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Janet N apolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Robert Mueller, Donna A. Bucella (whalc1, COURT STAFF) (Filed on 2/19/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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No. C 06-00545 WHA

RAHINA IBRAHIM,
Plaintiff,
v.

ORDER REGARDING
PRIVILEGE LOGS FOR NONCLASSIFIED DOCUMENTS

DEPARTMENT OF HOMELAND
SECURITY, et al.,
Defendants.

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This order does not to pertain to any classified information. Issues regarding the

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withholding of classified information in discovery will be dealt with in a separate order. This

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order pertains only to Sensitive Security Information and Law Enforcement Sensitive

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information.

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The government and the government’s senior trial counsel in this matter, Paul G.

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Freeborne, are in violation of the Court’s February 7 order (Dkt. No. 407). The February 7 order

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required the government to serve a privilege log on plaintiff’s counsel by today at noon stating

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the specific privileges asserted by the government for withholding documents. That deadline has

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now passed.

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As stated in the February 7 order, a privilege log itself does not reveal privileged

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information. The order also permitted the government to serve the privilege log on an attorney’s
eyes only basis if it wished. Nevertheless, the government has failed to produce a privilege log

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by the February 19 deadline because it would allegedly reveal SSI and law enforcement

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information (Dkt. No. 413). The government has also now taken the position that certain

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information must be covered by two separate and independent protective orders before being

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listed on a privilege log (see Dkt Nos. 413, 413-1).

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From a review of the parties’ submissions, it appears that the government is responsible

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for this unnecessary delay. Plaintiff’s proposed SSI protective order (Dkt. No. 415-1) is nearly

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identical to the prior SSI protective order entered in this matter (Dkt. No. 312), and plaintiff’s

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proposed non-SSI protective order is based on the Court’s model order for highly confidential

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information. The government’s proposed protective orders, however, diverge significantly from

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For the Northern District of California

United States District Court

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these models and attempt to re-open the door on disputes decided long ago.
Rule 26(b)(5) provides (emphasis added):

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When a party withholds information otherwise discoverable under
these rules by claiming that it is privileged . . . the party shall make
the claim expressly and shall describe the nature of the documents,
communications, or things not produced or disclosed in a manner
that, without revealing information itself privileged or protected,
will enable other parties to assess the applicability of the privilege
or protection.

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Rule 26(b)(5) requires that assertions of privilege be justified. The justifications must moreover

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be sufficiently specific “to enable other parties to evaluate the applicability of the claimed

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privilege or protection.” Burlington Northern & Santa Fe Railway Co. v. U.S. District Court for

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the District of Montana, 408 F.3d 1142, 1148 (9th Cir. 2005) (citing Rule 26(b)(5) advisory

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committee’s note (1993 Amendments)). The purpose of the rule would be defeated if a party

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could stand on a blanket assertion that its privilege log is itself privileged. The use of a privilege

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log is a standard, commonplace method of satisfying Rule 26(b)(5) without revealing privileged

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or protected information.

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Although the Court is willing to allow the government to produce SSI and law

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enforcement privilege logs under a protective order, there is no requirement that the Court do so,

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and the government has not cited any authority for the proposition that preparing a privilege log

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listing purported SSI and LES documents is not feasible. The government could have produced

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to counsel the privilege log at issue without revealing any privileged information, and without

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any protective order

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The government insists on a form of protective order that is unsatisfactory for plaintiff’s

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counsel. This insistence has resulted in the government once again missing a deadline to

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produce materials in this long-pending action. The government is ORDERED to produce the

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privilege log to plaintiff’s counsel on an attorney’s eyes only basis, meaning only plaintiff’s

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counsel may review the log, and under no circumstances may counsel reveal the contents of the

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privilege log to plaintiff or anyone else without a court order. This in and of itself constitutes an

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interim protective order until such time as counsel’s differences over the specifics of the
protective orders are resolved. In this context, the Court recalls that it worked hard in 2009 and

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For the Northern District of California

United States District Court

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2010 for the entry of the prior protective order. It is disappointing that despite this hard work the

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government wishes to restart this process.

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The government is ORDERED to produce the privilege log on the aforementioned basis by

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NOON ON FEBRUARY 21. With the understanding the plaintiff’s counsel will receive the

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privilege log by that time, the current briefing schedule on plaintiff’s motion to compel will

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remain in place. This holding is without prejudice, however, to plaintiff making a timely motion

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for a slight extension following receipt of the government’s privilege log if it turns out to be

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voluminous.

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Meanwhile, the government is ORDERED to submit its objections to plaintiff’s proposed

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SSI and law enforcement protective orders (Dkt. No. 415-1, 415-2) by FEBRUARY 26 AT NOON;

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any responses from plaintiff will be due by MARCH 5 AT NOON. The submissions shall include

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redlines of any proposed changes along with justifications for the changes. Objections and

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suggested modifications should be supported by binding case authority or they likely will be

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rejected.

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The government’s objection to disclosing plaintiff’s current watchlist status to plaintiff’s

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counsel on the grounds that it requires protection under two protective orders is OVERRULED.

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With regard to that specific information, protection under this interim and the forthcoming SSI

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protective orders will be sufficient. This ruling does not, however, relieve the government of its

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burden of justifying any assertions of law enforcement or other privileges.

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The government’s request that the Court reconsider its prior ruling that plaintiff will be

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allowed to hear privileged evidence presented against her at trial is DENIED. The Court will

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reject any blanket request to exclude the plaintiff from the courtroom. This issue will be

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addressed on an item-by-item basis at trial.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: February 19, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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