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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1 2 United States District Court Northern District of California 3 4 5 UELIAN DE ABADIA-PEIXOTO, et al., 6 Plaintiffs, 7 Case No.: CV 11-04001 RS (KAW) FOURTH ORDER RE IN CAMERA REVIEW v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., 8 9 Defendants. 10 United States District Court Northern District of California 11 The Court issued its third order regarding the ongoing in camera review on February 27, 12 2013. (See Dkt. No. 128.) In that order, the Court ordered the Government to “provide a sworn 13 declaration by March 6, 2013 providing the date and time that the policy decision on the restraints 14 policy for asylum seekers was made.” Id. Should the Government not comply, Document Nos. 15 18320 and 18345 would be ordered “produced without redaction on the basis that they are not 16 subject to the deliberative process privilege.” Id. 17 On March 6, 2013, the Government lodged its response, which included the sworn 18 declaration of Andrew Lorenzen-Strait, Public Advocate for Immigration and Customs 19 Enforcement (ICE). Mr. Lorenzen-Strait’s declaration states that ICE finalized the policy 20 governing the use of restraints on asylum seekers on August 19, 2011. Therefore, the deliberative 21 process privilege may apply to Document Nos. 18320 and 18345, which are emails that were 22 transmitted on August 9, 2011 and August 11, 2011, respectively. 23 Deliberative process privilege, however, is a qualified privilege, and courts may order 24 discovery even if the government meets its burdens of showing the document is predecisional and 25 deliberative. See F.T.C. v. Warner Communications Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). 26 Privileged materials may be obtained if the propounding party’s “need for the materials and the 27 need for accurate fact-finding override the government's interest in non-disclosure. Id. at 1161 28 (citing United States v. Leggett & Platt, Inc., 542 F.2d 655, 658 (6th Cir.1976)). 1 When asserting this privilege, the Government must show that the documents are 2 predecisional and deliberative, and then the burden shifts to the propounding party to show that 3 the privilege should be waived. See Cal. Native Plant Soc’y v. U.S. Envtl. Prot. Agency, 251 4 F.R.D. 408 (N.D. Cal. 2008) (citing Chevron U.S.A. Inc. v. United States, 80 Fed.Cl. 340, 355-57 5 (Fed.Cl. Jan. 30, 2008)). “Among the factors to be considered in making this determination are: 6 1) the relevance of the evidence; 2) the availability of other evidence; 3) the government's role in 7 the litigation; and 4) the extent to which disclosure would hinder frank and independent 8 discussion regarding contemplated policies and decisions.” F.T.C. v. Warner Communications 9 Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). Document No. 18320 is an email that addresses how the ICE Enforcement and Removal 10 United States District Court Northern District of California 11 Operations in San Francisco will determine whether to restrain asylum seekers even though the 12 courtrooms lack certain technology. This is directly relevant to the litigation, which concerns the 13 Government’s alleged blanket shackling policy of immigration detainees during immigration 14 court proceedings. The Government is a party in this case, but this email is unlikely to hinder 15 frank and independent discussion, because even though it is unclear whether the subject matter is 16 policy or fact, the focus of the communication is on San Francisco ICE making individualized 17 determinations regarding the use of restraints for asylum seekers, which they should have already 18 been doing. Any privilege that may exist is, therefore, outweighed by the propounding party’s 19 need for this document, and so it must be produced. Document No. 18345 is an email that is clearly predecisional and deliberative, and no 20 21 overriding need exists to warrant production. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 2 1 For the reasons set forth above, Document Nos. 18320 and 18345 are subject to the 2 deliberative process privilege. Document No. 18320 shall be produced without redaction by April 3 3, 2013, on the grounds that the privilege is qualified, and the propounding party’s need overrides 4 the Government’s interest in nondisclosure. Document No. 18345, however, shall not be 5 produced. 6 7 IT IS SO ORDERED. DATE: March 27, 2013 ___________________________ KANDIS A. WESTMORE United States Magistrate Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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