De Abadia-Peixoto et al v. United States Department of Homeland Security et al

Filing 110

ORDER re 99 Joint Discovery Letter BriefConcerning Discovery Disputes filed by Uelian De Abadia-Peixoto. Signed by Judge Kandis A. Westmore on 11/16/2012. (kawlc1, COURT STAFF) (Filed on 11/16/2012)

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United States District Court
Northern District of California

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UELIAN DE ABADIA-PEIXOTO, et al.,

Case No.: CV 11-04001 RS (KAW)
ORDER RE 10/22/12 JOINT
DISCOVERY LETTER

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Plaintiffs,

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v.
U.S. DEPARTMENT OF HOMELAND
SECURITY, et al.,

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Defendants.

United States District Court
Northern District of California

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Before the Court is a joint discovery dispute letter filed on October 22, 2012. (Dkt. No.

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99). The letter concerns four disputes pertaining to Plaintiffs’ requests for production of

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documents. (Dkt. No. 99.) Upon review of the letter, the Court orders Defendants' to produce

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documents pursuant to the limitations set forth below.
I.

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LEGAL STANDARD

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1. Discovery Generally

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Subject to the limitations imposed by subsection (b)(2)(C), under Rule 26, “[p]arties may

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obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or

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defense....” Fed. R. Civ. P. 26(b)(1). “Relevant information need not be admissible at the trial if

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the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id.
However, “[o]n motion or on its own, the court must limit the frequency or extent of

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discovery otherwise allowed by these rules or by local rule if it determines that: (1) the discovery

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sought is unreasonably cumulative or duplicative, or can be obtained from some other source that

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is more convenient, less burdensome, or less expensive; (2) the party seeking discovery in has had

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ample opportunity to obtain the information by discovery in the action; or (3) the burden or

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expense of the proposed discovery outweighs its likely benefit, considering the needs of the case,

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the amount in controversy, the parties’ resources, the importance of the issues at stake in the

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action, and the importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C).

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2. Deliberative Process Privilege

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The deliberative process privilege permits the government to withhold documents that

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“reflect[ ] advisory opinions, recommendations and deliberations comprising part of a process by

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which governmental decisions and polices are formulated.” NLRB v. Sears, Roebuck & Co., 421

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U.S. 132, 150 (1975).

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In order to qualify for the privilege, documents must be both “predecisional” and

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“deliberative”. Carter v. U.S. Dep't of Commerce, 307 F.3d 1084, 1089 (9th Cir.2002); see also

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Hongsermeier v. C.I.R., 621 F.3d 890, 904 (9th Cir. 2010).

United States District Court
Northern District of California

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A document is predecisional if it is “prepared in order to assist an agency decisionmaker

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in arriving at his decision.” Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168,

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184 (1975). This may include “recommendations, draft documents, proposals, suggestions, and

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other subjective documents which reflect the personal opinions of the writer rather than the policy

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of the agency.” Carter, 307 F.3d at 1084 (quoting Assembly of State of Cal. v. U.S. Dept. of

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Commerce, 968 F.2d 916, 920 (9th Cir. 1992)). Alternatively, postdecisional documents “setting

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forth the reasons for an agency decision already made” are not privileged and are subject to

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disclosure. Grumman, 421 U.S. at 184.

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A predecisional document is a part of the “deliberative process,” if “the disclosure of [the]

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materials would expose an agency's decision making process in such a way as to discourage

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candid discussion within the agency and thereby undermine the agency's ability to perform its

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functions.” Assembly, 968 F.2d at 920. However, documents consisting of only “compiled factual

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material or purely factual material contained in deliberative memoranda and severable from its

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context would generally be available for discovery by private parties in litigation with the

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Government.” Envtl. Prot. Agency v. Mink, 410 U.S. 73, 87-88 (1973)

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Deliberative process privilege is a qualified privilege, and courts may order discovery

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even if the government meets its burdens of showing the document is predecisional and

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deliberative. See F.T.C. v. Warner Communications Inc., 742 F.2d 1156, 1161 (9th Cir. 1984).
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Privileged materials may be obtained if the propounding party’s “need for the materials and the

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need for accurate fact-finding override the government's interest in non-disclosure. Id. at 1161

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(citing United States v. Leggett & Platt, Inc., 542 F.2d 655, 658 (6th Cir.1976)).

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When asserting this privilege, the Government must show that the documents are

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predecisional and deliberative, and then the burden shifts to the propounding party to show that

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the privilege should be waived. See Cal. Native Plant Soc’y v. U.S. Envtl. Prot. Agency, 251

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F.R.D. 408 (N.D. Cal. 2008) (citing Chevron U.S.A. Inc. v. United States, 80 Fed.Cl. 340, 355-57

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(Fed.Cl. Jan. 30, 2008)). “Among the factors to be considered in making this determination are:

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1) the relevance of the evidence; 2) the availability of other evidence; 3) the government's role in
the litigation; and 4) the extent to which disclosure would hinder frank and independent

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United States District Court
Northern District of California

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discussion regarding contemplated policies and decisions.” F.T.C. v. Warner Communications

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Inc., 742 F.2d 1156, 1161 (9th Cir. 1984).
II.

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DISCUSSION

As an initial matter, and to avoid any confusion, in light of the November 1, 2012 hearing

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on Defendants’ motion for protective order, the geographic scope of discovery will be limited to

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the San Francisco immigration court and to those 5-10 outside jurisdictions1 to be mutually-

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agreed upon by the parties. Nothing in this order should be interpreted as requiring Defendants to

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produce nationwide discovery at this time.

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1. Time period for which documents responsive to RFP Nos. 2, 4, 6, 8, 10, 12, 14, 16,
and 22 should be produced.

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a. Limitations in Time Period

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Plaintiffs request that documents responsive to the Requests for Production Nos. 2, 4, 6, 8,

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10, 12, 14, 16, and 22 be produced for the periods of January 2007-present2 and 1983-1993.

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(10/22/12 Joint Letter (“Joint Letter”) at 2.) The period of 1983 to 1993 represents the five years

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At the November 1, 2012 hearing, Plaintiffs offered to limit discovery regarding the shackling
policies and practices to 5-10 other immigration courts to alleviate Defendants' burden of
producing documents related to the shackling practices in all 59 immigration courts outside of
San Francisco.
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For the purposes of this order, "present" shall be defined as the date the discovery requests were
issued, as Defendants do not have an ongoing discovery obligation.
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before and the five years after the 1988 delegation of authority that granted the authority for

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courtroom security to the U.S. Immigration and Naturalization Service (the predecessor agency to

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the U.S. Immigration and Customs Enforcement).

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Defendants contend that January 2010 is an appropriate cut-off as that is when the

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Government was first notified of the possibility of future litigation. Defendants provide no legal

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justification for this significant narrowing of time based upon a right to narrow discovery to only

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those periods after a party is notified of possible litigation.
Defendants also contend that any documents within five years of 1988 would be covered

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by deliberative privilege. While this is not entirely persuasive, at this time, the Court declines to

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compel the production of documents from the five years before the INS was given authority over

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United States District Court
Northern District of California

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courtroom security, as the expense of the proposed discovery outweighs its likely benefit. See

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Fed. R. Civ. P. 26(b)(2)(C)(iii). However, Defendants are not persuasive in their assertion that

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they should be relieved from producing documents regarding their policies for the five years after

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INS was given authority over courtroom security. In fact, to the extent that postdecisional

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documents explain the decision to hand over authority for security or explain the shackling

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policies and practices in place, they would be fact-based and not subject to privilege. Should

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Defendants attempt to withhold documents from this time period due to deliberative privilege, the

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Government must produce a privilege log that sufficiently states how the privileged documents fit

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into the deliberative process.

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As to time period limitations, the Court finds that Defendants should produce responsive

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documents dated between 1988-1993 and 2007-present subject to the limitations outlined below.

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As stated above, the 1988-1993 time period reflects the five years after INS (now ICE) was given

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full authority over security in immigration courtrooms nationwide. The 2007-present period is a

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reasonable period in which Defendants’ should identify relevant documents. The Court notes that

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INS was reorganized into ICE in 2002, so the Government should be able to produce many

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documents without undue burden, as they should be housed in ICE and not with other agencies.

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Should Plaintiffs later request documents from other years, they are ordered to engage in a

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good faith meet and confer effort with the Government before seeking additional court

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intervention.

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b. Specific Requests for Production
Plaintiffs' requests at issue in the first dispute fall into four groups: (1) those regarding

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shackling policies and practices in San Francisco, (2) those involving policies and practices

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outside of San Francisco, (3) those assumed to involve national policy (as held by Executive

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Office of Immigration and Review(EOIR)), and (4) those calling for documents purportedly

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protected by deliberative privilege.

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United States District Court
Northern District of California

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i. San Francisco Policies (Nos. 2, 22)
Request No. 2 seeks documents relating to past shackling policies and practices in San

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Francisco. Such documents are relevant to this case, and Defendants are ordered to produce all

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responsive, non-privileged documents dated between 1988-1993 and 2007-present.

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Request No. 22 seeks all documents regarding any communications by or with

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immigration judges regarding the use of shackles during detainees' appearances in immigration

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court in San Francisco. Defendants are ordered to produce all responsive, non-privileged

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documents dated between 1988-1993 and 2007-present.

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ii. Practices in Jurisdictions Outside of San Francisco (No. 6)
Request No. 6 concerns past ICE shackling policies and practices outside of San

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Francisco. In light of the parties' meet and confer efforts to limit the geographic scope of

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discovery, the court is not inclined to order that all responsive documents be produced at this time

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given that to do so would appear to be unduly burdensome and Plaintiffs have not shown that they

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require discovery from all 59 outside immigration courts to prosecute their case. While this

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information is relevant to the current action, Defendants are ordered to produce responsive

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documents from those 10 (or fewer) mutually-agreed upon jurisdictions.

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iii. EOIR Documents (Nos. 4, 7)
Request Nos. 4 and 7 concern the past national policies and practices of EOIR. The Court
understands that all national official policy memoranda have already been produced by
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Defendants. To the extent that additional responsive, non-privileged documents—including

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unofficial documents—exist, the Government is ordered to produce those documents dated

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between 1988-1993 and 2007-present.
iv.

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Deliberative Process Privilege (Nos. 10, 12, 14, 16)

Request Nos. 10, 12, 14, and 16 all seek documents relating to "possible or proposed

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amendments to, or changes in, past policies or practices...." These requests include documents

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presumably protected by the deliberative process privilege, and so Defendants are not required to

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produce any privileged documents in response to these requests for production. To the extent that

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non-privileged documents exist between 2007-present—as Defendants admit that they only
performed an electronic search from January 2010 to present—Defendants are ordered to produce

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United States District Court
Northern District of California

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those documents within 30 days of this order.
2. Shackling release requests and complaints

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Plaintiffs seek to obtain records of detainee requests and complaints occurring in (1)

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immigration court and (2) state detention facilities, which house the immigration detainees.
a. Immigration Court in San Francisco (RFP 18, 20, 21)

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Request Nos. 18, 20, and 21 all concern documents that should be in the custody of ICE in

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San Francisco.
Request No. 18 requests all documents related to requests by detainees to be released from

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shackles during appearances in immigration court. This is directly relevant to the proceedings,

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and the Government is ordered to produce all responsive documents in its possession from 2007-

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present. The 1988-1993 time period relates primarily to the shackling policy, whereas the 2007-

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present is more likely to provide evidence regarding the impact of the policy. Since these

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requests concern documentary evidence of impact, the Government is not required to produce

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documents from 1988-1993.
Request No. 20 seeks all complaints regarding the use of shackles during transport. To the

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extent that the Government transports the detainees to court, those records should be available,

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and the Government is ordered to produce all responsive documents from 2007-present. If the

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Government uses a contractor for transportation purposes, the parties are ordered to meet and

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confer to determine the most expeditious way for Plaintiffs to obtain those documents.
Request No. 21 seeks complaints concerning the use of shackles during court appearances.

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While the Court acknowledges that the Government may be keeping records in a manner that

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could make a comprehensive search quite burdensome, this request seeks documents that are

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directly at issue in this case and in the immigration court at issue. Therefore, the Government is

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ordered to produce all responsive documents dated from 2007-present.

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b. Immigration Courts Outside of San Francisco (RFP 19)
Request No. 19 seeks all documents summarizing any requests by detainees to be released

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from shackles during appearances in immigration courts outside of San Francisco. The

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United States District Court
Northern District of California

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Government is ordered to produce only those responsive documents from the 5-10 mutually-

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agreed upon jurisdictions from 2007-present.
c. Request No. 23

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Request No. 23 asks for all documents referring or relating to any alleged harm to

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immigration detainees from the use of shackles, including medical reports and requests for

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treatment. This request is far too broad for the Government to comply with, and is therefore, at

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this time, limited to San Francisco immigration detainees from 2007-present.
d. Detention Facilities (RFPs 33, 34, 35)

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These requests concern the specific state-run detention facilities that have contracts with

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the Government to house immigration detainees. The Government claims that it does not have

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custody or control of any complaints regarding the use of shackles, because it does not operate

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those facilities. Given the amended stipulated protective order, Plaintiffs are directed to subpoena

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those documents directly from the third-party facilities, attaching a copy of the protective order,

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as this is less burdensome than attempting to obtain the documents from the Government. Should

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Plaintiffs be unsuccessful in obtaining those documents and records directly from the third-party

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facilities, they may seek court intervention to compel compliance with the subpoenas.

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3. Documents Allegedly Subject to Deliberative Process Privilege

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As noted above, several of Plaintiffs requests ask for documents presumably protected by

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the deliberative process privilege.

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Plaintiffs are correct in their assertion that the privilege is a qualified one, and the

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requesting party must show a substantial need for the documents sufficient to overcome the claim

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of privilege. Plaintiffs’ reliance on California Native Plant Society to mean that the inadequacies

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of the privilege log waives Defendants’ claim of privilege is misguided. See 251 F.R.D. 408 (N.D.

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Cal. 2008). No such waiver exists, and indeed the California Native Plant Society Court did not

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deem the Government’s privilege waived, but instead required the agencies to submit a more
detailed privileged log. Id. at 415. Thus any inadequacies of the Government’s privilege logs do

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United States District Court
Northern District of California

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not waive its claim of privilege.
To the extent that documents explaining the policies are requested, and those documents

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were created after the policies were implemented, they are postdecisional and the Government

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must produce them. To the extent that the documents are related to proposed amendments or

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potential changes in the policies and practices, those are privileged and any discussion on

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potential changes are not required to be produced. Explanations as to why the currently policy

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exists, however, is postdecisional and not privileged, and the Government must produce those

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documents. If those documents also contain deliberations about potential changes in policy, those

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are predecisional, and redacted versions of those documents containing facts and explanations

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concerning the current policy in effect, should be produced.
The Court finds that the Government’s privilege log is insufficient, in that it does not

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sufficiently identify why the documents are being properly withheld on the basis of deliberative

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process privilege.3 For example, document DHS18345 is described as an “[e]mail message

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regarding internal agency discussions on interpretation of policy memorandum.” (Joint Letter, Ex.

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The following Bates numbered documents were not produced per the Government’s assertion of
deliberative process privilege: DHS002305 (two documents with identical Bates number),
DHS016919 (3 documents), DHS18306, DHS18307, DHS180311, DHS180312, DHS180314,
DHS18316, DHS18317, DHS18318, DHS18320, DHS18345 (2 documents), DHS18348,
DHS18350, and DHS18353 (3 documents).
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C at 50.) This description suggests that the document is both explanatory and postdecisional, and

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therefore would not be privileged. Therefore, the Government is ordered to produce to the Court

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all documents contained in the privilege log for which it claims deliberative process privilege to

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be reviewed in camera.

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The Government is further ordered to supplement the privilege log to account for those
documents produced pursuant to the amended stipulated protective order, including those which

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were previously withheld on the basis of law enforcement privilege, and have since been

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produced. (See Dkt. No. 103). The Government is also required to elaborate as to those

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documents being withheld on the basis of “private information.” This log, as well as future logs,

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must also provide more detailed information as to how any documents purportedly protected by

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United States District Court
Northern District of California

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deliberative process privilege fit into the deliberative process.

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Should Plaintiffs come to believe that the assertion of deliberative process privilege

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continues to be abused, the parties are ordered to meet and confer and file another joint letter if

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the parties are unable to resolve the dispute. The Court will then revisit this issue and decide how

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to proceed, including the possibility of reviewing any additional documents in camera.

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4. Production of a Sample of Documents
While Plaintiffs may be frustrated with the discovery process thus far, there is no support

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for Plaintiffs' request for a 500-page sample of Bates numbered pages from the gaps in the

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numbered pages produced. This request is denied.
III.

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CONCLUSION

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For the foregoing reasons, Defendants are ordered produce all responsive documents

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subject to the parameters set forth above within thirty (30) days of this order. The amended

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privilege must also be produced within thirty (30) days of this order. Documents believed to be

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protected by deliberative process privilege must be produced to the Court for in camera review

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within fourteen (14) days of this order.

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IT IS SO ORDERED.
DATE: November 16, 2012

___________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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