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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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 IN CAMERA REVIEW

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Plaintiffs,

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

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Defendants.

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Defendant U.S. Department of Homeland Security submitted documents for review in

United States District Court
Northern District of California

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camera per the Court’s November 16, 2012 order. (Dkt. No. 110.) The Court has completed most

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of its review of Defendants’ in camera submission and issues this initial order. As set forth below,

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the Court seeks further information regarding certain documents, and orders Defendants to

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produce certain other documents.
I. DISCUSSION

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The Court discussed the deliberative process privilege in its November 16, 2012 order and

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incorporates the discussion and analysis of the privilege in the prior order by reference. (Dkt. No.

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110.)
Per the Court’s November 16, 2012 order, the Government submitted 17 bates stamped

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documents that it had withheld from Plaintiffs on the basis of deliberative process privilege.1

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After reviewing the documents, the Court finds that the deliberative process privilege did not

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apply with respect to at least 10 documents because they were not both deliberative and

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predecisional. Accordingly, Defendants shall produce the documents identified below to

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Plaintiffs, without redaction, unless otherwise noted.

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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.

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A. Documents to be Produced

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1. Documents summarizing ICE’s Use of Restraints policy

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Documents Nos. 2305, 16919, 18296, 18306, and 18307 all summarize ICE’s Use of

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Restraints policy, which was publicly released, so these documents are neither predecisional nor

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deliberative and must be produced. In fact, the January 29, 2009 email (No. 18307) clearly states

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that a version of the summary was provided when another non-governmental organization (NGO)

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requested it, which would, in itself, destroy privilege.

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2. Documents pertaining to the restraints policy for asylum seekers

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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

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United States District Court
Northern District of California

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sentence, which begins with “We are” and ends with “today.” This document shall be produced,

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and the Government has the discretion to do so with that first sentence redacted.

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While the Court will not order Document No. 18318, described as “Portion of message

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containing internal deliberations regarding the response to UNHCR,” the Court orders the

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Government to produce the referenced letter that it sent to UNHCR, because that document is not

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privileged. In addition, if it has not yet done so, the Government is ordered to produce copies of

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all final restraint policies for asylum seekers, including those that have been superseded, from

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August 1, 2011 to present.

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3. Other Documents

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Document No. 18347 was purportedly withheld on the basis of deliberative process and

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attorney work product. The rationale the Government provides in its privilege log is that it is an

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“[e]mail message discussion conducted at the request of counsel.” The email is between Jason

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McClay and David Jennings, and was forwarded to “ICE ERO Supervisory Detention and

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Deportation Officers, Yakov Grinberg, Claudio McCoy, Johnny Bailey.” None of these actors are

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attorneys, so the claimed work product privilege does not apply. Further, the contents are factual

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in nature, as they concern the implementation of ICE’s Restraints policy as it relates to one of the

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named plaintiffs in restraints. So even if this were subject to the qualified deliberative process

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privilege—which it is not— this privilege could be overcome by Plaintiffs’ substantial need for

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the document. The Government is therefore ordered to produce this document without redaction.

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Document No. 18352 is an email that contains the name and alien number of a detainee.

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This document was withheld on the basis of privacy. The entire contents are not privileged and

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the Government is ordered to produce this email with the name and alien number redacted to

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protect the detainee’s privacy.

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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,

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United States District Court
Northern District of California

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including the date and time the policy was finalized.

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C. Privileged Documents
After a review of all documents in camera, the Court finds that Document Nos. 18316,

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18317, 18318, 18350, 18351, and 18353 are protected by the deliberative process privilege and

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are not subject to disclosure. Document No. 18348 is protected by attorney-client privilege.
II. CONCLUSION

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As set forth above, the Court finds that certain documents over which the Government has

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asserted deliberative process privilege are not deliberative and predecisional, and thus, not

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entitled to protection. Accordingly, the Government shall produce the documents identified above

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by January 18, 2013. For those documents about which the Court seeks additional information,

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the Government shall provide its response in camera by January 14, 2013. The Court will then

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issue a further order concerning the remainder of the in camera production.

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IT IS SO ORDERED.
DATE: January 7, 2013

___________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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