Mohammed v. Gonzales et al
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO COMPEL AND FOR PROTECTIVE ORDER: For the reasons set forth in the Order, Mr. Mohammed's Motion to Compel Discovery 331 and the Defendants' Motion for Protective Order 332 are each GRANTED IN PART and DENIED IN PART, on the terms set forth herein. by Chief Judge Marcia S. Krieger on 3/17/14.(msksec, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 07-cv-02697-MSK-BNB
KHALFAN KHAMIS MOHAMMED,
ERIC HOLDER, The U.S. Attorney,
HARLEY LAPPIN, Director of B.O.P.,
HARRELL WATTS, Administrator of National Inmate Appeals, and
FEDERAL BUREAU OF INVESTIGATION,
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
MOTIONS TO COMPEL AND FOR PROTECTIVE ORDER
THIS MATTER comes before the Court pursuant to Mr. Mohammed’s Motion to
Compel Discovery (# 331), and the Defendants’ response (# 349, 350); and the Defendants’
Motion for Protective Order (# 332), and Mr. Mohammed’s response (# 356). The Court head
oral argument on the motion on February 14, 2014 (# 362), and the Defendants’ made an in
camera production of the contested documents.
The Court assumes the reader’s familiarity with Mr. Mohammed’s remaining claims and
the proceedings to date. In short, Mr. Mohammed, an inmate of the Federal Bureau of Prisons
(“BOP”) asserts a single Bivens claim challenging the BOP’s imposition of Special
Administrative Measures (“SAMs”) against him that limit, in various ways, his ability to
communicate with family members and friends.
After the close of the discovery period and the Magistrate Judge’s representation that
discovery was “substantially complete,” and following the resolution of dispositive motions, this
conducted a final pre-trial conference. At the conference the parties represented that each had
issues with regard to discovery requests made in October 2013. Because neither party had filed
motions with regard to such issues, the Court set a date to do so. Given the age of the case, the
Court also set the matter for trial beginning May 5, 2014.
During October 2013, Mr. Mohammed served requests for production on the Defendants,
requesting, in essence, “any . . . document in possession of Defendant relating to Plaintiff’s
communications or SAMs.” The Defendants produced certain documents responsive to these
requests, but withheld others, claiming that such withheld documents were protected from
disclosure by either the law enforcement privilege or the deliberative process privilege. In
January 2014, Mr. Mohammed filed the instant Motion to Compel (# 331), seeking to require the
Defendants to produce the withheld documents, and the Defendants filed the instant Motion for
Protective Order (# 332), seeking confirmation that the withheld documents are privileged and
immune from disclosure.
The Court heard oral argument on the motions on February 19, 2014, at which time Mr.
Mohammed narrowed his request to those documents reflecting the period of 2004 to 2007 for
documents relating to restrictions on his ability to communicate with non-immediate family
members and delays in mail screening, and documents from 2010 relating to a restriction on his
ability to communicate with his brother, Nassor. Mr. Mohammed also agreed to withdraw a
request for documents relating to his criminal prosecution in 1999.
The Court then directed the Defendants to produce the withheld documents, along with a
comprehensive privilege log, for in camera review. The Defendants produced three separate sets
of documents on CDs, each accompanied by a privilege log1: one consisting of documents in
BOP custody, one consisting of documents from the United States Attorney for the Southern
District of New York (“SDNY”), and one consisting of documents from the U.S. Department of
Justice’s Office of Enforcement Operations (“OEO”).2
The Court has now completed its in camera review of the documents and makes the
Although Mr. Mohammed’s requests for production are clearly overbroad, the
Defendants raise objections based only upon invocation of privileges; there is no objection as to
the relevance of any of the requested documents. This is unfortunate. The Court was able to
Subsequently, the Defendants produced a fourth CD, apparently reflecting documents in
the possession of the FBI. Because the delayed production of this CD occurred after the Court
had conducted its review of the records, the Court will address the FBI production in a separate
The Court’s review of the OEO documents and log has been hampered by the manner in
which it is constructed. Unlike the other two agencies’ logs, the OEO privilege log does not list
entries sequentially by Bates number, nor is the log organized in any other discernable fashion.
The CD of documents consists of 145 separate .pdf files of varying lengths, with filenames
identifying only the Bates number of the first page in the file. The use of multiple files, rather
than a single file with multiple documents makes review of the documents cumbersome and
inefficient. This is exacerbated by the non-sequential nature of the privilege log.
In addition, the OEO log entries do not always correspond with the files on the CD.
On many occasions, a single entry in the log will list a range of Bates numbers, but those pages
are scattered in as many as 8 different files. Thus, the Court cannot simply follow the document
sequence on the log itself, opening and reviewing each file listed in the “Bates Beginning”
column, without having to also check to see whether the end of that file corresponds to the
“Bates End” column on the log.
Finally, some documents appearing on the CD, for example Bates number 32-35, do not
appear to correspond with any log entry, and several documents listed at the end of the log have
no identifying Bates numbers or dates.
narrow the scope of the discovery request at the February hearing, but the parties were in the best
position to tailor the request in light of the single claim to be tried but they did not do so. As a
consequence, the Defendant has submitted and the Court has reviewed a multitude of documents
that are not relevant to the claim set for trial.
The Court sua sponte conducted a preliminary threshold review of the documents for
relevance. This review was narrow, only those documents that had no connection whatsoever to
the issues to be tried in this case were excluded based on relevance. These documents fall into
one of three categories: (i) documents that predate 2004, which Mr. Mohammed has given as the
earliest relevant date,3 and which have no clear connection to the imposition of any SAMs (such
documents entail, for example, Mr. Mohammed’s initial BOP classification in 2001); (ii)
documents that relate exclusively to inmates other than Mr. Mohammed (for example, many
discrete documents in the OEO production are letters justifying the imposition of SAMs against
inmates other than Mr. Mohammed; and (iii) numerous documents reflecting discussions among
the various agencies concerning Mr. Mohammed’s ability to communicate with Mr. Wolf, his
current counsel (as such communications are not challenged here).
Accordingly, the Court finds that the following documents (identified by Bates numbers)
may be withheld by the Defendants on the grounds that they have no relevance whatsoever to the
claim to be tried:
The Court has elected not to exclude documents between 2007-2009, and 2011-2013,
even though Mr. Mohammed appears to have expressed an intention not to rely on such
documents at trial. The Court is not sufficiently familiar with the factual issues in dispute to
conclude that matters occurring in, say, 2008 can have no bearing whatsoever on a decision
regarding Mr. Mohammed made in 2010. Indeed, the Court’s review of the documents herein
reveals that the authors of documents at one point in time often expressly refer back to decisions
made in prior years.
0126 (This document appears to have no substantive contents.)
These documents appear to be handwritten notes made by an unidentified person at an
unidentified time. The notes themselves being brief and devoid of context, it is difficult to even
interpret them, although at least one note uses the phrase “BOP Pilot Project on Email.” Nothing
in the notes appears to make any reference to Mr. Mohammed personally, much less make
reference to the decisions to modify his SAMs. Accordingly, the notes do not appear to be
relevant to the claims herein.
Two categories of documents recurring repeatedly in the OEO’s production warrant brief
Several entries in the OEO’s log refer to a periodically-issued document that is
sometimes referred to as a “SAMs Master Listing.” This lengthy document lists all of the
inmates in BOP custody that are subject to SAMs, including certain information regarding each
inmate’s crime, the dates on which SAMs were imposed or modified for the inmate, and other
information of a statistical nature. Because only a small portion of this document relates to Mr.
Mohammed, the Court directs the Defendants to produce the generally-applicable portions of
these documents, as well as the portions that specifically mention Mr. Mohammed; the
remainder of the document – namely, the listing of other inmates subject to SAMs – are
irrelevant to the claims herein and need not be produced. The Court will use a double-asterisk
notation (**) to identify these documents in this Order. Those pages listed in the “Relevance”
portion of the Order are pages that only contain information relating to other inmates and need
not be produced. The Court will specifically identify the pages containing information to be
produced from these documents in the “To be produced” section, infra., again using the doubleasterisk identifier.
Also appearing several times in the OEO’s production are e-mails in which the author
sends copies of draft SAMs renewal letters for numerous inmates (including Mr. Mohammed) to
the recipient. The OEO’s production includes the draft letters relating to inmates other than Mr.
Mohammed. Because letters regarding the renewal of SAMs for other inmates are irrelevant to
Mr. Mohammed’s claims, the Court excludes those documents on relevance grounds.
B. Personally-identifiable information
All three logs sometimes raise an objection to producing a listed document on the
grounds that the document contains “personal identifying information for non-parties.”
Although such information may be withheld from a production in response to Freedom of
Information Act request, 5 U.S.C. § 552(b)(6), the Federal Rules of Civil Procedure do not
contemplate that the presence of a non-party’s personal information in an otherwise properlyrequested document operates to preclude production of that document. At most, a concern about
the unnecessary disclosure of personal information relating to non-parties is a factor permitting
the issuance of a protective order under Fed. R. Civ. P. 26(c), which is not sought here.
This document is a spreadsheet, entitled “FOTS All Items,” that is more than 400 pages
long. Its purpose is somewhat unclear – it appears to be a calendaring or tracking system for
correspondence received by OEO, sorted into categories such as “Witness Immunity Request” or
“Dual Prosecution Request” or “Subpoena- Attorney Subpoena.” OEO’s log identifies it as
“status of all items tracked by OEO, including SAMs,” and invokes the deliberative process
privilege with regard to it, but does not identify which of the 400+ pages (if any) specifically
relate to Mr. Mohammed. The Court declines to unilaterally review all 400+ pages to locate any
entries that relate to Mr. Mohammed, much less ascertain whether the Defendants’ invocation of
privilege with regard to those entries is meritorious. Instead, the Court directs that the
Defendants undertake such a review, producing those portions of the document that refer to Mr.
Mohammed’s SAMs, and withhold the remaining portions of the document as irrelevant.
Once documents that relate solely to other inmates are excluded as irrelevant, the Court’s
review reveals relatively few documents that discuss other inmates in ways that reveal
unnecessary personal information about them. The mere fact that a document mentions another
inmate (or readily-ascertainable details of that inmate’s conviction or sentence) is not sufficient
to demonstrate that production of the document under an existing attorney eyes-only protective
order would expose that inmate to “annoyance, embarrassment, oppression, or undue burden.”
Fed. R. Civ. P. 26(c). Moreover, there is no reason why any legitimate concerns of non-party
inmate privacy that may exist cannot readily by cured by mere redaction of the non-party
Accordingly, the Court finds no entries in the logs that warrant protection from disclosure
on the grounds that they contain non-party personal information.
C. Law enforcement privilege
The BOP and SDNY productions occasionally cite to the law enforcement privilege as a
basis for withholding documents. The “law enforcement privilege” is the overarching name
given to a bundle of privileges that relate to preserving the confidentiality of a law enforcement
investigation In re City of New York, 607 F.3d 923, 944 (2d Cir. 2010). Materials that reveal: (i)
law enforcement techniques and procedures; (ii) would undermine the confidentiality of sources;
(iii) information that would endanger law enforcement personnel, witnesses, or the privacy of
individuals involved in an investigation; or (iv) information that would otherwise interfere with
an investigation, may all be subject to the privilege. Id. The privilege applies to protect
information relating to completed investigations as well as ongoing ones, as “the ability of a law
enforcement agency to conduct future investigations may be seriously impaired if certain
information” from a completed investigation is revealed. Id.
The law enforcement privilege is a qualified, not absolute, one, which means that it can
be overcome by a showing that the requesting party’s need for the information outweighs the law
enforcement agency’s need for secrecy. See e.g. In re Dept. of Homeland Security, 459 F.3d
565, 569-70 (5th Cir. 2006). The party asserting the privilege – here, the Defendants -- bears the
burden of demonstrating its applicability. City of New York, 607 F.3d at 944.
This Court’s review of the various documents for which the law enforcement privilege is
invoked reveals no document for which the privilege has been asserted that falls within its
purview. There is no designation of any particular person – law enforcement officers, witnesses,
or targets -- involved in any ongoing or completed investigation. The documents disclose law
enforcement “techniques” only in the most superficial and broad sense of the term, revealing
only unremarkable facts such as that Mr. Mohammed’s conversations in Swahili with friends and
family members are monitored by Swahili-speaking interpreters associated with federal law
enforcement agencies, that law enforcement agencies scrutinize Mr. Mohammed’s oral and
written communications with others to ensure that he is not passing on harmful messages, either
overtly or in code, and that requests by Mr. Mohammed to add persons to the list of those with
whom he is permitted to have contact has prompted federal law enforcement agencies to conduct
a background check on those persons before granting approval.
Accordingly, the Court finds that none of the documents in any of the productions are
subject to withholding on the basis of the law enforcement privilege.
D. Deliberative process privilege
The vast majority of the Defendants’ claims of privilege invoke the deliberative process
privilege. The deliberative process privilege covers “documents reflecting advisory opinions,
recommendations, and deliberations comprising part of a process by which governmental
decisions and policies are formulated.” Dept. of Interior v. Klamath Water Users Protective
Assn., 532 U.S. 1, 8-9 (2001). The purpose of the privilege is to ensure that “open and frank
discussion” among governmental officials charged with making a decision, as officials “will not
communicate candidly among themselves if each remark is a potential item of discovery and
front page news.” Id. The burden of avoiding disclosure lies with the party asserting the
privilege, who must show that “disclosure would create a chilling effect” on intra-agency
discussions. U.S. ex rel. Williams v. Renal Care Group, 696 F.3d 518 , 527 (6th Cir. 2012).
To fall within the privilege, documents must be both “pre-decisional” and “deliberative.”
“Pre-decisional” means that they were created prior to the adoption of an official agency policy
or position on the matter in question, rather than being post-decision explanations for the
decision. “Deliberative” means that the documents were used to make recommendations or
express opinions on legal or policy matters, and that the documents were created specifically for
use during a decision-making process. Confidential Informant 59-05071 v. U.S., 108 Fed.Cl.
121, 135 (Fed. Cl. 2012). On the other hand, documents that simply recite factual information,
summarize past events, or report on an investigation are not privileged unless the selection of the
information reveals governmental decision-making. Id. at 135; Renal Care Group, Inc., 696
F.3d at 527. The key feature of a privileged document is the making of a recommendation, the
statement of an opinion about the issues underlying the decision to be made, or the “give-andtake” of the consultative process. Confidential Informant, 108 Fed.Cl. at 138; Renal Care, 696
F.3d at 527.
As with the law enforcement privilege, the deliberative process privilege is qualified.
Even if otherwise validly invoked, it can be overcome by a showing that the plaintiff’s need for
the information outweighs the governmental interest in preserving the confidentiality of
deliberations.7 Sikorsky Aircraft Corp. v. U.S., 106 Fed.Cl. 571, 577 (Fed.Cl. 2012). In striking
this balance, courts consider: (i) the relevance of the evidence sought to be protected, (ii) the
availability of the same or similar information from other sources; (iii) the seriousness of the
litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the
extent to which disclosure might chill candid discussion among government employees in the
future. Id. at 579.
To a large extent, the documents in each production consist of e-mail chains among
various officials from each agency,8 discussing various aspects of the process of either renewing
or modifying Mr. Mohammed’s SAMs. Most often, the discussions entail one party providing
the others with a draft of a document, and the other parties giving assent to (usually), asking
questions about (occasionally), or suggesting revisions to (infrequently) the draft document or
the issues raised in it. The documents being circulated are typically recommendation letters from
one agency to another, recommending that Mr. Mohammed’s SAMs be continued for another
year; less frequent are drafts and discussions about making modifications to the existing SAMs.
Mr. Mohammed’s motion makes a perfunctory and generalized argument that his need
for the requested documents outweighs any governmental interest in preserving the secrecy of
deliberations. The Court declines to consider that argument at the abstract. Mr. Mohammed has
the various privilege logs and thus, has some ability to identify the particular documents he
believes are pertinent and make a showing that his need for specific documents outweighs any
Because of the concatenation of such e-mail chains, there is a significant degree of
redundancy in the production. A document that contains a chain of e-mails consisting of
messages A, B, C, D, and E will usually be accompanied by another document that consists of a
shorter chain containing only messages A, B, C, and D, and another document consisting of only
messages A, B, and C. At times, the Court may find that, for example, messages A, B, C and D
are not deliberative in nature, but that message E is. In such circumstances, the Court directs that
the documents containing the shorter chains be produced, but the document containing the full
chain be withheld on privilege grounds.
The Court has generally applied the following standards in ruling on invocations of the
deliberative process privilege:
• Documents that are clearly identifiable as drafts are privileged. Such identification may
be by the document itself – the document is watermarked as “draft,” it has blank spaces in it
where additional information is to be supplied, it has handwritten corrections or commentary
attached, or it has typeface or other markings or formatting in it suggesting redlined changes are
included or that the document is otherwise incomplete – or it may be accompanied by a
transmittal memo that clearly refers to the document as a draft or solicits changes or corrections.
However, the Court does not assume that the mere fact that a document is unsigned or undated
makes it a draft; in an era of electronic signatures and transmittal of documents by e-mail, such
formalities are sometimes overlooked. In some circumstances, although the Defendants have
represented on the logs that a particular document is a draft, if none of the indicia of draft status
mentioned above are found, it will be produced.
• Documents reflecting e-mail chains in which a participant offers corrections to or
requests modification of a draft document (whether the draft document is included in or attached
to the chain or not) are also deliberative in nature. The Court has also permitted the withholding
of documents in which the sender requests and the recipients provide their consent to the
contents of a draft document (whether included or not). There may be little harm in disclosing
documents in which each recipient merely states that they consent to a proposed draft or
decision, but obtaining such consent is an important component of the deliberative process and
thus, the Court treats such documents as privileged.
• Documents, even those that appear to be final versions, are deliberative if their contents
indicate that the authoring agency is merely giving a recommendation to the recipient agency or
requesting the recipient agency to take a specific action for specific reasons. For example, the
SDNY routinely writes an annual letter to OEO, captioned “Request for renewal of 28 C.F.R.
502.1 Special Administrative Measures [for] Kahlfan Khamis Mohammed.” The first paragraph
of that document typically reads, “The Government submits this letter in support of a renewal of
the [SAMs] currently imposed . . .” and concludes with “for all of the foregoing reasons, this
Office recommends SAMs be renewed for Khalfan Khamis Mohammed.” The text of this letter
makes clear that the SDNY is offering advice and opinion to the OEO in order to assist the OEO
with deliberations as to whether the SAMs should be renewed. Thus, letters that “recommend”
or “request” that another agency take a particular action usually fall within the deliberative
• Documents that do nothing more than convey drafts from sender to recipient are not
considered privileged (unless the draft is included in the document), nor are documents which
merely solicit the recipient’s comments or consent, without actually disclosing the recipient’s
position on the matter. These documents simply reflect administrative processing, not any
internal deliberations or recommendations.
• Similarly, documents that merely reveal the administrative operations of an agency are
not privileged. For example, a number of documents in the parties’ productions concern various
officials commenting to each other about delays in the signing of renewal letters. Where these
comments also propose a change in agency direction to ameliorate the problem in the future, the
deliberative privilege might apply. But when the documents simply consist of one party advising
another of a deadline, expressing concern about meeting that deadline, or inquiring whether the
deadline will be met, those communications reveal nothing deliberative and thus fall outside of
• Finally, the Court has rejected a claim of privilege with regard to several documents
that discuss the rationale for past decisions. Several documents created in 2013 (apparently in
conjunction with the decision about renewal of SAMs for that year) involve the author asking the
recipient about the justification or process that was used for a modification that was made in
2011 or earlier. Although such communications might arguably relate to a decision being made
in 2013, discussion of the reasons that were given (or considered and rejected) for a decision
made in 2011 are explanatory, rather than deliberative.
Based on these standards and the Court’s review of each document listed in the log, the
Court finds that the following documents are subject to the deliberative process privilege and
may be withheld.
E. Documents to be produced
Having disposed of all other challenges, the Court finds that the following documents
must be produced to Mr. Mohammed.
0083: The Defendants shall produce the first substantive paragraph of this document, but
may redact the second and third paragraphs from the production.
These documents are handwritten notes by an unidentified author at an unidentified time.
The notes appear to reference a “SAMs chart going forward” (see n. 5, supra) and/or mention
certain procedures that are used in implementing all SAMs. Mr. Mohammed is specifically
mentioned, extremely briefly, on a page headed “Mail for SAMs inmates.” Apparently, in
relation to a statement reading “Avg. 5-60 business days in turnaround,” a note reads “Example:
KKM goes longer – Swahili.”
The Court rejects the Defendants’ invocation of deliberative privilege with regard to this
document. It appears in the record devoid of any other context to explain when and why it was
created. Its contents do not clearly indicate that it was created during a deliberations over the
implementation of a new policy; it is just as susceptible to an interpretation that it reflects notes
taken by a new employee being advised of how the existing or newly-implemented procedures
operate. The burden is on the Defendants to show, by a preponderance of the evidence, that the
document is deliberative in nature. Here, it although it is possible that this document is predecisional and deliberative in nature, it is equally-likely that it is post-decisional in nature. Thus,
the Defendants have not carried their burden to show that the document is privileged and the
Court orders it produced.
0708-1120: see fn. 6, supra.
All documents on the final page of the log for which neither Bates numbers nor dates
were provided. The Court finds that, by failing to adequately identify these documents in the
record, the Defendants have not carried their burden of showing that the documents should be
withheld from disclosure.
The Court directs that the Defendants shall produce the documents listed above to Mr.
Mohammed within 7 days of the date of this Order. This production shall be subject to the
existing protective order(s) that have applied to prior discovery produced to Mr. Mohammed.
For the foregoing reasons, Mr. Mohammed’s Motion to Compel Discovery (# 331) and
the Defendants’ Motion for Protective Order (# 332) are each GRANTED IN PART and
DENIED IN PART, on the terms set forth herein.
Dated this 17th day of March, 2014.
BY THE COURT:
Marcia S. Krieger
Chief United States District Judge
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