Doe 1 et al v. Nielsen et al

Filing 141

Order re Defendants' Jurisdictional Discovery Review and Production. Parties to confer by 12/31/2018. Defendants to submit report re schedule for completing remaining production by 12/31/2018. Signed by Judge Virginia K. DeMarchi on 12/14/2018. (vkdlc1S, COURT STAFF) (Filed on 12/14/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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JANE DOE 1, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No.18-cv-02349-BLF (VKD)

v.
KIRSTJEN NIELSEN, et al.,

ORDER RE DEFENDANTS’
JURISDICTIONAL DISCOVERY
REVIEW AND PRODUCTION

Defendants.
On September 7, 2018, the Court granted plaintiffs’ request to conduct jurisdictional

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discovery of the nature of the agency action at issue and set a schedule for the completion of such

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discovery by November 7, 2018. Dkt. No. 102.

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On October 4, 2018, defendants moved for an extension of time. Dkt. No. 105. At the

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hearing on the matter, defendants represented that only a few thousand pages remained to be

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reviewed and produced, and that they would be able to complete production by December 7, 2018.

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Dkt. No. 132. Based on those representations, on November 6, 2018 the Court ordered defendants

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to complete production by December 7, 2018 and ordered the parties to complete all jurisdictional

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discovery by January 7, 2019. Dkt. No. 133.

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On December 7, 2018, defendants advised the Court that they had not been able to fully

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comply with the Court’s November 6, 2018 discovery order and were unable to commit to a date

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of compliance. Dkt. No. 137.

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The Court held a telephonic discovery conference on December 14, 2018. Dkt. No. 139.

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At the conference, defendants provided an update regarding the status of their review and

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production efforts. Defendants estimate that between the Department of State and United States

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Citizenship and Immigration Services (“USCIS”), approximately 20,000 documents remain to be

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reviewed. Defendants advised the Court that the “first line” review of collected documents for

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privilege, confidentiality, and responsiveness is being conducted solely by agency counsel. The

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Department of Justice (“DOJ”) attorneys assigned to this case are not assisting with this initial

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review. Defendants advised the Court that these DOJ attorneys are not sufficiently familiar with

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the agencies’ respective areas of law and applicable privileges to be able to meaningfully assist

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with this initial review.

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The Court is disappointed to learn that defendants’ representations as recently as
November 6 about the volume of documents to be reviewed and the time required to review them

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were wildly inaccurate. The Court is also concerned that defendants’ collection and review of

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electronically stored information has been unduly delayed as a result of too few knowledgeable

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United States District Court
Northern District of California

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personnel actually engaged in the collection and review, and a failure to timely enlist the

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appropriate technical expertise in extracting electronically stored information. See Dkt. No. 137 at

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3, 5. Moreover, the parties appear not to have engaged in the type of discussion contemplated by

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Federal Rule of Civil Procedure 26(f)(3)(C) and this District’s E-Discovery (ESI) Guidelines to

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ensure the efficient and cost-effective review and production of electronically stored information.

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The Court’s primary objective now is to facilitate the expeditious review and production of
the remaining documents. To that end, the Court orders as follows:

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Counsel for the parties shall participate in a candid discussion of: (1) the sources,

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custodians, and search methodology defendants have used and are using to collect, review, and

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produce documents responsive to plaintiffs’ document requests; and (2) strategies for identifying,

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prioritizing, and expediting the production of documents that are most important for assessing

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whether a final agency action supporting plaintiffs’ Administrative Procedure Act claim exists.

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The discussion may take place by telephone conference, video conference, or in person (or some

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combination thereof). Defendants shall ensure that knowledgeable agency counsel for the

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Department of State and USCIS participate in the discussion. The parties shall conduct this

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discussion no later than December 31, 2018.

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Nothing in this order precludes plaintiffs from seeking leave of Court to notice a Rule
30(b)(6) deposition of one or more defendants regarding their efforts to comply with plaintiffs’
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discovery requests. The Court hopes that the discussion of counsel that the Court has ordered will

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make such a deposition unnecessary.

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Once defendants know how many documents remain to be reviewed and produced, they

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shall advise plaintiffs and report to the Court regarding a schedule for completing the remaining

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document production. The Court expects to receive this report no later than December 31, 2018.

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IT IS SO ORDERED.
Dated: December 14, 2018

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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United States District Court
Northern District of California

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