Vietnam Veterans of America et al v. Central Intelligence Agency et al
Filing
436
ORDER RE: MAY 30 & 31, 2012 IN CAMERA SUBMISSIONS OF DOCUMENTS. Signed by Magistrate Judge Jacqueline Scott Corley on 5/31/2012. (ahm, COURT STAFF) (Filed on 5/31/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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Northern District of California
United States District Court
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VIETNAM VETERANS OF AMERICA,
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et al.,
Plaintiffs,
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Case No.: 09-cv-0037 CW (JSC)
ORDER RE: MAY 30 & 31, 2012 IN
CAMERA SUBMISSIONS OF
DOCUMENTS
v.
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CENTRAL INTELLIGENCE AGENCY,
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et al.,
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Defendants.
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Pursuant to the Court’s Orders of May 14 and 23, 2012, Defendant Department of
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Veterans Affairs (“DVA”) has resubmitted four previously illegible documents for review in
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camera. (Dkt. Nos. 423, 430). DVA asserted the deliberative process privilege over these
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documents and those addressed in the Court’s November 23, 2011, April 6, 2012, May 14,
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2012 and May 23, 2012 Orders. (Dkt. Nos. 327, 408, 423 & 430). The Court previously
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found that with respect to some of the documents over which DVA asserted the deliberative
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process privilege, the privilege either did not apply or Plaintiffs had shown a substantial need
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for the documents sufficient to overcome the claim of privilege. The Court incorporates
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these prior orders by reference and makes the following findings with respect to the four
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outstanding documents.
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The Court’s May 14 and May 23 Orders directed Defendant to resubmit four
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documents for in camera review because the copies previously provided to the Court were
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illegible. On May 30, 2012, Defendant submitted two documents and on May 31, 2012
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Defendant submitted the remaining two documents. The Court finds as follows:
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Defendant does not need to produce DVA078 004458-4469.
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To the extent that DVA078 004748-4751 is deliberative, Plaintiffs have a
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substantial need for the document sufficient to overcome the claim of privilege.
Defendant shall produce this document to Plaintiffs.
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United States District Court
Northern District of California
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DVA078 003366-3368 and 4179-4181 are duplicate documents, which appear
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to summarize the state of Defendant’s legislative proposals as of January 23,
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2007. These documents do not appear to be deliberative, and if even they are,
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Defendant has indicated that there is no final version of these documents.
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Accordingly, Defendant shall produce the documents to Plaintiffs.
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With respect to the two points of clarification sought in DVA’s May 30, 2012 filing,
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the Court responds as follows. The Court found that Defendant had waived any claim of
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privilege with respect to the six documents identified because they were referenced in the
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Spinelli Declaration (Dkt. No. 371-1), but the documents were neither contained in the
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privilege log accompanying the in camera production, nor in the in camera submission itself.
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See DVA078 24-26, 2700-2703, 1867, 2045-2055, 2681 and 4221. Defendant alleges that
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the documents were not included because they are duplicates of documents which the Court
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previously reviewed in camera, and following review, the Court sustained Defendant’s claim
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of privilege. The Court accepts this representation as true; however, the Court notes these
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documents were not listed as duplicates on Exhibit G to Plaintiffs’ Motion to Compel (Dkt.
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Nos. 404, n.1; 405-6 ) and the Court relied on this list for purposes of determining which
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documents were duplicates. Accordingly, if Plaintiffs disagree with Defendant’s
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characterization of these documents, they should bring this to the Court’s attention
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immediately. In the absence of any filing by Plaintiffs on this matter, the Court finds that
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Defendant has not waived the privilege and need not produce these six documents.
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Second, the Court’s May 23, 2012 Order inadvertently indicated that Defendant
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should produce documents DVA078 3100-4103. Defendant is only ordered to produce the
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single document at DVA078 3100-3104.
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Based on the foregoing, Defendant shall produce DVA078 004748-4751, 3366-3368
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and 4179-4181 to Plaintiffs by June 7, 2012. This Order resolves all outstanding matters
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regarding those documents over which Defendants have asserted the deliberative process
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privilege.
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United States District Court
Northern District of California
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IT IS SO ORDERED.
Dated: May 31, 2012
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_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE
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