Doe 1 et al v. Nielsen et al

Filing 169

Order Setting Deadline for Completion of Jurisdictional Discovery. Signed by Judge Virginia K. DeMarchi on 2/27/2019. (vkdlc1S, COURT STAFF) (Filed on 2/27/2019)

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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.,

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Plaintiffs,

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v.

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KIRSTJEN NIELSEN, et al.,

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United States District Court
Northern District of California

Case No.18-cv-02349-BLF (VKD)
ORDER SETTING DEADLINE FOR
COMPLETION OF JURISDICTIONAL
DISCOVERY

Defendants.

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On February 25, 2019, defendants submitted a revised status report providing greater detail

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on USCIS’s and the Department of State’s proposed process and schedule for completing review

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and production of jurisdictional discovery documents targeted at determining whether a final

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agency action exists to support plaintiffs’ Administrative Procedure Act claim. Dkt. No. 168.
In defendants’ revised status report, USCIS represents that 852 documents remained to be

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reviewed, in addition to 10 classified responsive documents. Id. at 2. USCIS advises that three or

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four agency attorneys will conduct the “first-line review”1 at an average rate of five documents per

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hour, and that three Department of Justice attorneys will conduct the “second-line review”2 at an

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average rate of 25 documents per hour. Id. at 2–3. Based on those estimates, USCIS expects to

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complete its review and production by April 1, 2019. Id. at 3.
The Department of State represents that 14,396 documents remain to be reviewed, in

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Defendants have previously represented to the Court that agency counsel and staff are
responsible for “first-line” review, which involves an initial review for privilege, confidentiality,
and responsiveness. Dkt. No. 140; Dkt. No. 141 at 2.
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Defendants have previously represented to the Court that Department of Justice attorneys
perform “second-line review,” presumably also for privilege, confidentiality, and responsiveness.
Dkt. No. 140.

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addition to approximately 200 classified emails which may or may not be responsive. Id. at 3 n.2.

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The Department of State advises that seven agency attorneys will conduct the first-line review at

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an average rate of 17 documents per hour, and that three Department of Justice attorneys will

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conduct the second-line review at an average rate of 25 documents per hour. Id. at 4–5. Based on

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those estimates, the Department of State expects to complete its review and production by June 14,

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2019. Id. at 5.

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Although defendants have improved upon their earlier estimated dates of completion by

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several weeks, the Court remains concerned that defendants are not treating review of these

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documents with the urgency and diligence required. As Judge Freeman has repeatedly observed,
plaintiffs and class members are refugees currently “in limbo” in Vienna, Austria—unable to

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United States District Court
Northern District of California

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return to Iran for fear of persecution, but unable to come to the United States due to the United

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States’ rejections of their applications for refugee resettlement. Dkt. No. 147 at 2. Further delay

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could lead to plaintiffs’ deportation back to Iran, where they fear persecution. Id. On that basis,

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Judge Freeman has “recognized the need to resolve this action with haste, issuing a summary

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judgment and class certification order within three months of the filing of the Complaint” and

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denying defendants’ request to stay the case in light of the federal government shutdown due to

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lapse of appropriations. Id. at 2 (emphasis added); see also Dkt. No. 87.

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Most concerning is the fact that none of the Department of Justice attorneys responsible for

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defending this case (or their legal staff) are participating in the initial “first-line” review of the

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over 15,000 potentially responsive documents that remain to be reviewed. Defendants’ argument

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that the agency attorneys possess unique subject-matter expertise for determining responsiveness

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that Department of Justice attorneys lack is unpersuasive. While the Court is generally reluctant to

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micromanage parties’ document review efforts, the slow pace of review and production to date

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and projected into the future changes the Court’s calculus here.

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The Court expects the Department of Justice attorneys of record—including counsel from

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the Office of Immigration Litigation who have appeared in this action—to be sufficiently well-

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versed in the law and facts relevant to this case to be able to identify documents responsive to

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plaintiffs’ jurisdictional discovery requests during an initial “first-line” review. Counsel of record
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may not simply delegate these discovery responsibilities to client agency counsel. See, e.g.,

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Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B (BLM), 2008 WL 66932, at *9 (S.D. Cal.

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Jan. 7, 2008) (“For the current ‘good faith’ discovery system to function in the electronic age,

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attorneys and clients must work together to ensure that both understand how and where electronic

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documents, records and emails are maintained and to determine how best to locate, review, and

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produce responsive documents. Attorneys must take responsibility for ensuring that their clients

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conduct a comprehensive and appropriate document search.”), vacated in part on other grounds,

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No. 05CV1958-RMB (BLM), 2008 WL 638108 (S.D. Cal. Mar. 5, 2008); Abadia-Peixoto v. U.S.

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Dep’t of Homeland Security, No. CV 11-04001 RS (KAW), 2013 WL 4511925, at *2 (N.D. Cal.

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Aug. 23, 2013) (citing with approval Qualcomm, 2008 WL 66932, and criticizing the Department

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United States District Court
Northern District of California

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of Justice’s deferral to agency counsel); Cutting to the “Document Review” Chase: Managing a

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Document Review in Litigation and Investigations, American Bar Association (June 29, 2017),

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https://www.americanbar.org/groups/business_law/publications/blt/2008/11/08_prasad/

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(commenting that counsel must supervise the timely review and production of documents by,

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among other things, training document reviewers appropriately, providing them with

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memorandum and checklists to assist them in making review determinations, and educating them

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on appropriate responsiveness and privilege analyses).

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Defendants cite their obligations in other ongoing litigation matters to explain at least in

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part the pace of their review and the estimated date of completion. Dkt. No. 137-1 ¶¶ 8, 10; Dkt.

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No. 137-2 ¶ 15 n.4. The Court has reviewed the dockets of the matters defendants identified to the

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Court on December 7, 2018, and found that the majority of those cases are closed, stayed pending

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appeal, or past the discovery stage. To the extent defendants contend that their obligations in

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those other matters hinder or otherwise prevent them from completing jurisdictional discovery in

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this action, this contention supports the Court’s conclusion that more resources must be devoted to

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the task.

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Expeditious completion of jurisdictional discovery—which was originally due to be

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completed by November 7, 2018 (Dkt. No. 102)—is in the interest of all parties. The sooner

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defendants complete jurisdictional discovery, the sooner plaintiffs may litigate their remaining
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claim on the merits, and the sooner defendants may marshal the information they need to pursue

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their motion to dismiss that remaining claim. See Dkt. No. 121. With that and Judge Freeman’s

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directive that this action be resolved “with haste” in mind, the Court orders defendants to complete

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their review and production of jurisdictional discovery by April 30, 2019. The Department of

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Justice attorneys and/or their legal staff must assist in the first-line review as necessary in order to

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meet this deadline.
No extensions of the April 30, 2019 deadline will be granted absent exceptional

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circumstances. Defendants are advised that counsel’s workload, other litigation matters involving

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USCIS or the Department of State, and discovery disputes are not exceptional circumstances and

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are not grounds for delaying the review process. With respect to discovery disputes, the parties

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United States District Court
Northern District of California

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may raise any such disputes with the Court using the expedited procedure the Court makes

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available in all civil cases.3
IT IS SO ORDERED.

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Dated: February 27, 2019

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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See Standing Order for Civil Cases, https://cand.uscourts.gov/vkdorders.
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