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

Filing 116

Discovery Order RE: Defendants' In Camera Document Review. Signed by Judge Kandis A. Westmore on 1/7/2013. (kawlc1, COURT STAFF) (Filed on 1/7/2013)

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1 2 United States District Court Northern District of California 3 4 5 UELIAN DE ABADIA-PEIXOTO, et al., Case No.: CV 11-04001 RS (KAW) ORDER RE IN CAMERA REVIEW 6 Plaintiffs, 7 v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., 8 9 Defendants. 10 Defendant U.S. Department of Homeland Security submitted documents for review in United States District Court Northern District of California 11 12 camera per the Court’s November 16, 2012 order. (Dkt. No. 110.) The Court has completed most 13 of its review of Defendants’ in camera submission and issues this initial order. As set forth below, 14 the Court seeks further information regarding certain documents, and orders Defendants to 15 produce certain other documents. I. DISCUSSION 16 17 The Court discussed the deliberative process privilege in its November 16, 2012 order and 18 incorporates the discussion and analysis of the privilege in the prior order by reference. (Dkt. No. 19 110.) Per the Court’s November 16, 2012 order, the Government submitted 17 bates stamped 20 21 documents that it had withheld from Plaintiffs on the basis of deliberative process privilege.1 22 After reviewing the documents, the Court finds that the deliberative process privilege did not 23 apply with respect to at least 10 documents because they were not both deliberative and 24 predecisional. Accordingly, Defendants shall produce the documents identified below to 25 Plaintiffs, without redaction, unless otherwise noted. 26 /// 27 28 1 In response to the Court’s November 16, 2012 Order, the Government voluntarily produced Document Nos. DHS018311-018312, so those documents will not be addressed. 1 A. Documents to be Produced 2 1. Documents summarizing ICE’s Use of Restraints policy 3 Documents Nos. 2305, 16919, 18296, 18306, and 18307 all summarize ICE’s Use of 4 Restraints policy, which was publicly released, so these documents are neither predecisional nor 5 deliberative and must be produced. In fact, the January 29, 2009 email (No. 18307) clearly states 6 that a version of the summary was provided when another non-governmental organization (NGO) 7 requested it, which would, in itself, destroy privilege. 8 2. Documents pertaining to the restraints policy for asylum seekers 9 Document No. 18314 is a “portion of message containing internal deliberations regarding the response to UNHCR.” This document is not privileged with the exception of the first 11 United States District Court Northern District of California 10 sentence, which begins with “We are” and ends with “today.” This document shall be produced, 12 and the Government has the discretion to do so with that first sentence redacted. 13 While the Court will not order Document No. 18318, described as “Portion of message 14 containing internal deliberations regarding the response to UNHCR,” the Court orders the 15 Government to produce the referenced letter that it sent to UNHCR, because that document is not 16 privileged. In addition, if it has not yet done so, the Government is ordered to produce copies of 17 all final restraint policies for asylum seekers, including those that have been superseded, from 18 August 1, 2011 to present. 19 3. Other Documents 20 Document No. 18347 was purportedly withheld on the basis of deliberative process and 21 attorney work product. The rationale the Government provides in its privilege log is that it is an 22 “[e]mail message discussion conducted at the request of counsel.” The email is between Jason 23 McClay and David Jennings, and was forwarded to “ICE ERO Supervisory Detention and 24 Deportation Officers, Yakov Grinberg, Claudio McCoy, Johnny Bailey.” None of these actors are 25 attorneys, so the claimed work product privilege does not apply. Further, the contents are factual 26 in nature, as they concern the implementation of ICE’s Restraints policy as it relates to one of the 27 named plaintiffs in restraints. So even if this were subject to the qualified deliberative process 28 2 1 privilege—which it is not— this privilege could be overcome by Plaintiffs’ substantial need for 2 the document. The Government is therefore ordered to produce this document without redaction. 3 Document No. 18352 is an email that contains the name and alien number of a detainee. 4 This document was withheld on the basis of privacy. The entire contents are not privileged and 5 the Government is ordered to produce this email with the name and alien number redacted to 6 protect the detainee’s privacy. 7 8 9 B. More information required by the Government The Government is ordered to produce additional information in camera to the Court to assist it in making a privilege determination regarding Document Nos. 18320 and 18345. Specifically, a copy of the final version of the August 2011 restraints policy for asylum seekers, 11 United States District Court Northern District of California 10 including the date and time the policy was finalized. 12 13 C. Privileged Documents After a review of all documents in camera, the Court finds that Document Nos. 18316, 14 18317, 18318, 18350, 18351, and 18353 are protected by the deliberative process privilege and 15 are not subject to disclosure. Document No. 18348 is protected by attorney-client privilege. II. CONCLUSION 16 17 As set forth above, the Court finds that certain documents over which the Government has 18 asserted deliberative process privilege are not deliberative and predecisional, and thus, not 19 entitled to protection. Accordingly, the Government shall produce the documents identified above 20 by January 18, 2013. For those documents about which the Court seeks additional information, 21 the Government shall provide its response in camera by January 14, 2013. The Court will then 22 issue a further order concerning the remainder of the in camera production. 23 24 IT IS SO ORDERED. DATE: January 7, 2013 ___________________________ KANDIS A. WESTMORE United States Magistrate Judge 25 26 27 28 3

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