Ibrahim v. Department of Homeland et al

Filing 538

ORDER ON THREE DISCOVERY MOTIONS (DKT. NOS. 517-18, 521) by Judge Alsup denying 517 Discovery Letter Brief; denying 518 Discovery Letter Brief; denying 521 Discovery Letter Brief (whalc1, COURT STAFF) (Filed on 9/11/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RAHINAH IBRAHIM,

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Plaintiff,

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For the Northern District of California

United States District Court

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No. C 06-00545 WHA

v.

ORDER ON THREE
DISCOVERY MOTIONS
(DKT. NOS. 517–18, 521)

DEPARTMENT OF HOMELAND
SECURITY, et al.,
Defendants.

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An August 23 omnibus order ruled on seven of ten discovery motions recently filed by

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plaintiff. The omnibus order also ordered the government to respond to the remaining three

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motions. Following review of the responsive submissions, this order now rules on the remaining

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three discovery motions (Dkt. Nos. 517–18, 521). In brief, the requested discovery relief is

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DENIED.

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This order has been composed so as to permit public filing and access.

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1.

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Plaintiff’s first discovery motion of August 6 takes issue with the government’s law

PLAINTIFF’S FIRST DISCOVERY MOTION OF AUGUST 6 (DKT. NO. 517).

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enforcement privilege and state secrets privilege objections during the FBI’s and the TSC’s Rule

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30(b)(6) deposition (which used one deponent for both depositions). The motion is, in form and

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in substance, nearly identical to plaintiff’s prior motions seeking to compel further deposition

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testimony which were ruled on by the August 23 omnibus order (Dkt. Nos. 491–492, 532 at

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8–9). The same analysis is applicable here and the motion to compel is accordingly DENIED.

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Regarding the law enforcement privilege, an April 19 order upheld the government’s

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assertion of the law enforcement privilege as to post-2009 terrorist watchlist procedures. The

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August 23 omnibus order held that the government’s instructions (in other depositions) that its

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witnesses not answer questions on this topic were “clearly proper” (Dkt. No. 532 at 8–9). Here,

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the privilege issue with the FBI/TSC deponent is the same and plaintiff provides no basis to

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disturb the April 19 rulings on the law enforcement privilege. Plaintiff’s motion to compel

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further deposition testimony on this topic is DENIED.

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Similarly, plaintiff’s counsel apparently devoted substantial time during the deposition to

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probing whether plaintiff has ever been the subject of a counterterrorism investigation, and if so,
how that investigation was conducted. As stated in the August 23 omnibus order, these topics

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For the Northern District of California

United States District Court

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fall within the scope of the government’s assertion of the state secrets privilege. They are

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therefore beyond the scope of this action. Plaintiff’s motion to compel further deposition

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testimony on this issue is DENIED.

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2.

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Plaintiff’s second August 6 discovery motion raises two issues.

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First, plaintiff objects that the government has not “fully responded” to four special

PLAINTIFF’S SECOND DISCOVERY MOTION OF AUGUST 6 (DKT. NO. 518).

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interrogatories seeking information regarding plaintiff’s watchlist status, facts supporting the

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inclusion of her name on any government watchlist, and the reasons her visa was revoked. The

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government contends that it has responded to the extent possible and that any withheld

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information is subject to the state secrets privilege. Plaintiff, in turn, expressly requests that the

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“Court overrule the assertion of the state secrets privilege with respect to this relevant

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information.” This order declines to do so. The April 19 order concluded that the government

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properly invoked the state secrets privilege as to certain information within these topics. There

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is no basis in the present record for reconsideration of that order. The request to overturn this

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application of the state secrets privilege is DENIED.

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Second, plaintiff argues that the government has not “fully answered” five other

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interrogatories regarding government terrorist databases. The parties specifically dispute the

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effect of plaintiff’s definition of the term “NO-FLY LIST” to include “any and all government
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watch lists.” The government objected to the interrogatories based on overbreadth and then

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answered the interrogatories using a more limited definition of the term (selected by the

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government). Plaintiff requests that the government be compelled to answer the interrogatories

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using the original definition.

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Plaintiff’s definition was indeed overbroad. Plaintiff’s counsel admits she intentionally

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used an overbroad definition when drafting the interrogatories because, at the time, plaintiff

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lacked information regarding which watchlists her name was on (if any). This order appreciates

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counsel’s candor, but plaintiff will not get a second shot. Plaintiff and her counsel took a gamble

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on an overbroad definition; they likewise assumed the risk of a meritorious objection. Moreover,
as the government points out, revising the definition to include specific watchlists so that

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For the Northern District of California

United States District Court

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plaintiff can probe whether and how she was investigated would intrude on the government’s

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assertion of the state secrets privilege. The motion to compel further interrogatory responses is

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DENIED.

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2.

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Plaintiff’s August 7 discovery motion raises several issues which will be addressed in

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PLAINTIFF’S DISCOVERY MOTION OF AUGUST 7 (DKT. NO. 521).

turn.

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First, plaintiff seeks discovery into recently-publicized government surveillance

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programs because plaintiff believes that she and her counsel “may have been investigated by the

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government through interception of her communications.” For the reasons stated in the August

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23 omnibus order (Dkt. No. 532 at 4–7, 11–12), this duplicative request is DENIED.

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Second, plaintiff contends on numerous grounds that the government has improperly

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objected to thirty-two of plaintiff’s requests for production. Plaintiff’s objection that the

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government has not confirmed whether all documents have been logged or produced is DENIED

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AS MOOT

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reconsideration of the orders in this action upholding the government’s assertions of privilege.

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Accordingly, plaintiff’s multiple requests that the “Court overrule the government’s privilege

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assertions” are DENIED. The Court is also satisfied based on its own review of the classified

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documents withheld by the government that — in this action — meaningful summaries of the

in light of the August 23 omnibus order. Plaintiff has not presented a basis for

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classified documents could not be prepared without revealing classified information.

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Accordingly, plaintiff’s requests for summaries of documents withheld under the state secrets

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privilege and a hearing to challenge the assertion of the state secrets privilege are DENIED.

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Third, plaintiff objects that the government has not fully answered three special

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interrogatories asking the government to identify any individual who nominated plaintiff for

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inclusion in a government database. The government objects that it has answered in part and

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that any withheld information is classified. Because further responses would reveal whether

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plaintiff was the subject of a counterterrorism investigation, and if so, how she was investigated,

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this information is within the scope of the state secrets privilege. Plaintiff’s objections are
OVERRULED.

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For the Northern District of California

United States District Court

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CONCLUSION
All requests for relief in plaintiff’s three discovery motions (Dkt. Nos. 517–518, 521) are
DENIED.

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IT IS SO ORDERED.

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Dated: September 11, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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