Hamama et al v. Adducci

Filing 386

OPINION and ORDER SUSTAINING IN PART AND OVERRULING IN PART RESPONDENTS' ASSERTIONS OF THE DELIBERATIVE PROCESS PRIVILEGE, THE LAW ENFORCEMENT PRIVILEGE, AND NON-RESPONSIVENESS. Government's In Camera Review Documents due by 9/11/2018; Government's Supplemental Memorandum in Support of Attorney-Client Privilege Assertions and Work Product Doctrine due by 9/12/2018. Signed by District Judge Mark A. Goldsmith. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

USAMA J. HAMAMA, et al.,
Petitioners,

Case No. 17-cv-11910
HON. MARK A. GOLDSMITH

vs.
REBECCA ADDUCCI, et al.,
Respondents.
_______________________________/

OPINION & ORDER
SUSTAINING IN PART AND OVERRULING IN PART RESPONDENTS’
ASSERTIONS OF THE DELIBERATIVE PROCESS PRIVILEGE, THE LAW
ENFORCEMENT PRIVILEGE, AND NON-RESPONSIVENESS
On March 13, 2018, this Court issued an order which addressed the process for resolving
discovery disputes based on the assertion of privilege.

See 3/13/2018 Order at 10-12,

PageID.6231-6233 (Dkt. 254). The process allows Petitioners, after receiving the Government’s
documents and accompanying privilege log, to challenge any privilege assertions. If challenges
are made, the Government is to submit the challenged documents to the Court for an in camera
review, along with a memorandum explaining its basis for asserting the privilege. In accordance
with this process, the Government, after being notified that Petitioners were challenging its
assertion of non-responsiveness, the deliberative process privilege, and the law enforcement
privilege over certain documents produced in discovery, submitted to the Court the challenged
documents on July 31, 2018. The Government also provided a memorandum explaining its
privilege assertions, along with a declaration by Nathalie R. Asher, the Deputy Executive
Associate Director for Enforcement and Removal Operations (ERO) at U.S. Immigration and
Customs Enforcement (“ICE”) (Dkt. 354). The Court has since reviewed the documents and, for

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the reasons that follow, sustains in part and overrules in part the Government’s assertions of nonresponsiveness, the deliberative process privilege, and law enforcement privilege.
As an initial matter, the documents submitted to the Court lack any identifiable system of
Bates stamping on the documents themselves. The documents are separated into seventy tabs
preceded by a table of contents. The table of contents includes a system of Bates stamping that
does not appear to correspond to the number of pages in the documents. Therefore, the Court will
address the documents both by tab numbers and Bates numbers identified in the table of contents.
The Government submitted two documents that contain no redactions, and the Government
does not appear to be asserting any privilege as to these documents. According to the Government,
the documents were included in this review because they had been mistakenly left in the
Government’s privilege log. Mem. In Supp. of Priv. n.1, PageID.8068. Therefore, the Court will
not address Tab 6 (ICE-0272533,ICE-0296297) and Tab 51 (ICE-0297438).
The Government also submitted a small number of documents as to which it asserts the
attorney-client privilege and the work product doctrine. Neither privilege was discussed in the
Government’s memorandum in support of privilege claims (Dkt. 354).

The Court cannot

determine whether the attorney-client privilege or the work product doctrine applies without some
explanation by the Government as to how the privileges apply. Moreover, “[t]he burden of
establishing the existence of the privilege rests with the person asserting it.” United States v.
Dakota, 197 F.3d 821, 825 (6th Cir. 1999). The Court will require supplemental briefing by the
Government on this matter.

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I. ANALYSIS
1.

Deliberative Process Privilege

“The deliberative process privilege protects from discovery ‘documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated.’” E.E.O.C. v. Burlington N. & Santa Fe Ry. Co., 621 F.
Supp. 2d 603, 606 (W.D. Tenn. 2009) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
149 (1975)). “The primary purpose served by the deliberative process privilege is to encourage
candid communications between subordinates and superiors.” Schell v. U.S. Dep’t of Health &
Human Servs., 843 F.2d 933, 939 (6th Cir. 1988). To fall within the privilege, the information
must be both (i) pre-decisional and (ii) deliberative. Id. at 940.
“A document is predecisional when it is ‘received by the decisionmaker on the subject of
the decision prior to the time the decision is made.’” Id. at 940 (quoting Sears, 421 U.S. at 151).
However, the privilege does not turn “on the ability of an agency to identify a specific decision in
connection with which a memorandum is prepared. Agencies are, and properly should be, engaged
in a continuing process of examining their policies; this process will generate memoranda
containing recommendations which do not ripen into agency decisions.” Sears, 421 U.S. at 153
n.18.
A document is deliberative when it “reflects the give-and-take of the consultative process,”
meaning it “covers recommendations, draft documents, proposals, suggestions, and other
subjective documents which reflect the personal opinions of the writer rather than the policy of the
agency.” Id. (internal citation and quotations omitted). It is well-settled that the deliberative
process privilege “protects internal communications of a governmental agency when they are
deliberative in nature, but not when they are purely factual.” Burlington, 621 F. Supp. 2d at 606

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(citing Sears, 421 U.S. at 149). “Factual materials are generally not privileged unless they are
inextricably intertwined with policy-making processes.” Id. (quoting Trentadue v. Integrity
Comm., 501 F.3d 1215, 1227 (10th Cir. 2007)). “[P]urely factual, investigative matters that are
severable without compromising the private remainder of the documents do not enjoy the
protection of the exemption.” Norwood v. F.A.A., 993 F.2d 570, 577 (6th Cir. 1993) (citations
and quotations omitted).
Courts are to apply a “flexible, commonsense approach to factual/deliberative
classifications” and “must be careful not to become victims of their own semantics.” Trentadue v.
Integrity Comm., 501 F.3d 1215, 1227 (10th Cir. 2007). “In some circumstances . . . the disclosure
of even purely factual material may so expose the deliberative process within an agency that it
must be deemed exempted.” Id. “[T]he Ninth Circuit has adopted a ‘process-oriented’ or
‘functional’ test that exempts ‘[f]actual materials . . . to the extent that they reveal the mental
processes of decisionmakers.’” Id. (quoting Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d
1114, 1119 (9th Cir. 1988)). By contrast, the Eleventh Circuit has explicitly rejected that approach,
holding instead that “[t]he fact/opinion distinction continues to be an efficient and workable
standard for separating out what is, and what is not, deliberative.” Id. at 1228 (quoting Fla. House
of Representatives v. U.S. Dep’t of Commerce, 961 F.2d 941, 949 (11th Cir. 1992)).
Applying the above principles, the Court holds that the information withheld in the
following documents fall within the deliberative process privilege: Tab 1 (ICE-0267326,ICE0295560) (addressing the validity of a travel document denial and citizenship documents); Tab 2
(ICE-0267363,ICE-0296234) (recommending how to proceed with an Ambassador); Tab 11 (ICE0295953) (discussing how to proceed with an MOU); Tabs 17-18 and 62 ((ICE-0296029) (ICE0296031) (ICE-0297509)) (Unredacted portions of memoranda “Recommendation to Initiate the

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Process to Invoke Visa Sanctions under Section 243(d) of the Immigration and Nationality Act
against Iraq”). The information within these documents asserted to be privileged reflects “advisory
opinions, recommendations and deliberations.” Burlington, 621 F. Supp. 2d at 606. Additionally,
in Tab 3 (ICE-0272336,ICE-0296210), the third question under each country heading, but not the
bullet point information, is properly withheld under the deliberate process privilege.
However, the Court holds that the remainder of the information contained in documents
submitted to the court that the Government seeks to protect does not fall within the deliberative
process privilege, because it is purely factual in nature. The items sought to be protected by the
Government involve factual statements related to the current status of repatriation efforts and the
logistics of repatriation. While some of these statements of fact are contained within documents
that also contain deliberative statements, it cannot be said that the facts at issue “are inextricably
intertwined with policy-making processes.” Burlington, 621 F. Supp. 2d at 606. Rather, this
factual information can be severed from the deliberative discussions “without compromising the
private remainder of the documents.” Norwood, 993 F.2d at 577.
Additionally, there are documents containing email communications regarding the
preparation of declarations in this case. Preparing declarations for litigation is hardly “engag[ing]
in a continuing process of examining [agency] policies,” which may “ripen into agency decisions.”
Sears, Roebuck & Co., 421 U.S. at 153 n.18. Furthermore, the email communications do not stray
into the realm of “documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are formulated.” Sears,
Roebuck & Co., 421 U.S. at 149. The emails are, therefore, neither pre-decisional nor deliberative.

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2.

Law Enforcement Privilege

“The federal law enforcement privilege is ‘a qualified privilege designed to prevent
disclosure of information that would be contrary to the public interest in the effective functioning
of law enforcement.’” In re Packaged Ice Antitrust Litig., No. 08-01952, 2011 WL 1790189, at
*6 (E.D. Mich. May 10, 2011) (quoting In re Micron Tech., Inc. Sec. Litig., 264 F.R.D. 7, 10
(D.D.C. 2010)). “The purpose of the law enforcement privilege is to prevent disclosure of law
enforcement techniques and procedures, to preserve the confidentiality of sources, to protect
witness and law enforcement personnel, to safeguard the privacy of individuals involved in an
investigation, and otherwise to prevent interference with an investigation.” MacNamara v. City of
New York, 249 F.R.D. 70, 78 (S.D.N.Y. 2008) (internal citations and quotations omitted).
Three requirements must be met by the Government to prevail on its claim of privilege:
“(1) there must be a formal claim of privilege by the head of the department having control over
the requested information; (2) assertion of the privilege must be based on actual personal
consideration by that official; and (3) the information for which the privilege is claimed must be
specified, with an explanation why it properly falls within the scope of the privilege.” In re Sealed
Case, 856 F.2d 268, 271 (D.C. Cir. 1988).
There is no dispute that Deputy Executive Associate Director Nathalie R. Asher has
asserted the privilege after personal consideration of the issue. Thus, the Government’s claim
turns on the third requirement: whether the information sought falls within the scope of the
privilege.
The Government asserts that Tab 11 (ICE-0295953) and Tab 12 (ICE-0295970) are
protected by the law enforcement privilege. The Court already found that the deliberate process

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privilege applies to Tab 11 and therefore need not address it here. Tab 12, however, is another
matter.
The Government maintains that the information in Tab 12 identifies ICE internal processes
and procedures for making recommendations and decisions related to how the Government
encourages countries to accept the prompt, lawful return of their nationals who are subject to
removal from the United States, and evaluating Iraq’s removal efforts. Ex. A to Mem. In Supp. of
Priv., Asher Decl. ¶ 10, PageID.8075. The second paragraph in Tab 12 describes generally how
ICE engages with countries resistant to accepting the timely return of their nationals.

The

remainder of the document contains factual assertions and ultimately a recommendation to
sanction Iraq under the Immigration and Nationality Act, which do not describe law enforcement
processes and procedures. With regard to paragraph two, the Court sustains the Government’s
objection based on the law enforcement privilege; the Court overrules the objection as to the
remainder of the document.
3.

Non-responsive

The Government also asserts that some of the documents challenged by Petitioners are
simply non-responsive, because they relate to information regarding countries other than Iraq. The
Government is correct in most cases. The relevant portions of Tabs 15 (ICE-0296000), 19 (ICE0296033), and 42 (ICE-0297354) are non-responsive because they concern countries other than
Iraq. However, as to Tab 16 (ICE-0296003), the bullet point on the second page that begins with
“While the injunction remains in place . . .” is responsive to Petitioners’ Amended First Set of
Requests for Production.

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Additionally, Tab 69 (ICE-0297563) is an email chain related to a number of Hamama
class members, but the email chain is not responsive to any of Petitioners’ Amended First Set of
Requests for Production and is, therefore, properly designated as non-responsive.
II. CONCLUSION
For the foregoing reasons, the Court SUSTAINS the Government’s assertion of the
deliberative process privilege as to the information contained in Tab 1 (ICE-0267326,ICE0295560); Tab 2 (ICE-0267363,ICE-0296234); Tab 11 (ICE-0295953); Tab 17 (ICE-0296029);
Tab 18 (ICE-0296031); and Tab 62 (ICE-0297509); as well as the third question under each
country heading, but not the bullet point information, contained in Tab 3 (ICE-0272336,ICE0296210). The Court OVERRULES all other assertions of the deliberative process in the
remaining documents submitted for in camera review.
The Court SUSTAINS the Government’s assertion of the law enforcement privilege as to
the second paragraph in Tab 12 (ICE-0295970) only. All other assertions of the law enforcement
privilege in Tab 12 are OVERRULED.
The Court SUSTAINS the Government’s assertion of non-responsiveness in the relevant
portions of Tabs 15 (ICE-0296000), 19 (ICE-0296033), 42 (ICE-0297354), and 69 (ICE-0297563).
The Court OVERRULES the non-responsive designation as to the bullet point on the second page
of Tab 16 (ICE-0296003) that begins with “While the injunction remains in place . . . .”
The Court ORDERS the Government to produce documents submitted to the Court for in
camera review to Petitioners consistent with this order on or before September 11, 2018. The
Government must also submit, by the same date, a courtesy copy to the Court of the documents
produced to Petitioners. The Government must also file a supplemental memorandum in support

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of its assertions of the attorney-client privilege and the work product doctrine on or before
September 12, 2018.
Regarding any future submission of documents for the Court’s resolution of discovery
disputes, the documents must bear some form of page identification system, such as Bates
stamping.
SO ORDERED.
Dated: September 7, 2018
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on September 7, 2018.
s/Susan Pinkowski
Case Manager

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