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

Filing 132

FOURTH ORDER RE: IN CAMERA REVIEW. Signed by Judge Kandis A. Westmore on 3/27/2013. (kawlc1, COURT STAFF) (Filed on 3/27/2013)

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United States District Court
Northern District of California

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UELIAN DE ABADIA-PEIXOTO, et al.,

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Plaintiffs,

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Case No.: CV 11-04001 RS (KAW)
FOURTH ORDER RE IN CAMERA
REVIEW

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

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Defendants.

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United States District Court
Northern District of California

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The Court issued its third order regarding the ongoing in camera review on February 27,

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2013. (See Dkt. No. 128.) In that order, the Court ordered the Government to “provide a sworn

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declaration by March 6, 2013 providing the date and time that the policy decision on the restraints

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policy for asylum seekers was made.” Id. Should the Government not comply, Document Nos.

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18320 and 18345 would be ordered “produced without redaction on the basis that they are not

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subject to the deliberative process privilege.” Id.

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On March 6, 2013, the Government lodged its response, which included the sworn

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declaration of Andrew Lorenzen-Strait, Public Advocate for Immigration and Customs

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Enforcement (ICE). Mr. Lorenzen-Strait’s declaration states that ICE finalized the policy

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governing the use of restraints on asylum seekers on August 19, 2011. Therefore, the deliberative

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process privilege may apply to Document Nos. 18320 and 18345, which are emails that were

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transmitted on August 9, 2011 and August 11, 2011, respectively.

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

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discovery 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

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the litigation; and 4) the extent to which disclosure would hinder frank and independent

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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).
Document No. 18320 is an email that addresses how the ICE Enforcement and Removal

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United States District Court
Northern District of California

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Operations in San Francisco will determine whether to restrain asylum seekers even though the

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courtrooms lack certain technology. This is directly relevant to the litigation, which concerns the

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Government’s alleged blanket shackling policy of immigration detainees during immigration

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court proceedings. The Government is a party in this case, but this email is unlikely to hinder

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frank and independent discussion, because even though it is unclear whether the subject matter is

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policy or fact, the focus of the communication is on San Francisco ICE making individualized

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determinations regarding the use of restraints for asylum seekers, which they should have already

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been doing. Any privilege that may exist is, therefore, outweighed by the propounding party’s

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need for this document, and so it must be produced.
Document No. 18345 is an email that is clearly predecisional and deliberative, and no

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overriding need exists to warrant production.

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For the reasons set forth above, Document Nos. 18320 and 18345 are subject to the

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deliberative process privilege. Document No. 18320 shall be produced without redaction by April

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3, 2013, on the grounds that the privilege is qualified, and the propounding party’s need overrides

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the Government’s interest in nondisclosure. Document No. 18345, however, shall not be

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produced.

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IT IS SO ORDERED.
DATE: March 27, 2013

___________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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