In re: James Elmer Mitchell and John "Bruce" Jessen v USA

Filing 47

ORDER RE: MOTION TO RECONSIDER (ECF No. 32 ) Signed by Senior Judge Justin L. Quackenbush. (LAM, )

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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JAMES ELMER MITCHELL and
JOHN JESSEN,

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Petitioners,
) No. 16-MC-0036-JLQ
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vs.
) ORDER RE: MOTION TO
) RECONSIDER
UNITED STATES OF AMERICA,
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Respondent.
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___________________________________ )

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Related Case:
SULEIMAN ABDULLAH SALIM, et al.,

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) No. CV-15-0286-JLQ
Plaintiffs,
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vs.
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JAMES E. MITCHELL and JOHN
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JESSEN,
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Defendants.
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___________________________________ )
BEFORE THE COURT is Petitioners/Defendants James Mitchell and John

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Jessen's Motion for Reconsideration of the Court's October 4, 2016 Order (ECF No. 32 in

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case # 16-mc-36). The Motion seeks reconsideration/clarification of the Order

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concerning the scope of document production in response to a subpoena. The

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Government has filed a Response (ECF No. 37), and Defendants a Reply (ECF No. 42).

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The Motion was submitted without oral argument.

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I. Introduction

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Petitioners James Mitchell and John Jessen in the miscellaneous action, 16-mc1

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0036, are the Defendants in the related case, Salim et al. v. Mitchell et al., 15-286-JLQ,

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and are referred to as Defendants herein. Respondent is the United States, representing

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the interests of the Central Intelligence Agency ("CIA") and Department of Justice

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("DOJ") in responding to a subpoena. Plaintiffs in the underlying action, 15-286-JLQ,

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allege Defendants worked under contract with the CIA and "designed, implemented, and

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personally administered an experimental torture program." (Complaint, ¶ 1). Plaintiffs,

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who bear the burden of proof on their claims, have consistently taken the position that,

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"the facts necessary to adjudicate this matter are available in the public record." (ECF No.

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34 in Case # 15-286-JLQ, at p. 3). Plaintiffs stated "limited discovery, although

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unnecessary in light of the public record" may be relevant on two discrete topics. (Id. at

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p. 4). One topic identified by Plaintiffs was "carefully limited discovery of Defendants'

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roles in designing their torture program." (Id.). Plaintiffs asserted Defendants' discovery

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proposal was "overbroad, protracted, and unduly burdensome." (Id.).

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In April 2016, when discovery was just beginning, Plaintiffs stated "Defendants

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should not be permitted to turn the discovery process in this case into a far-flung and

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irrelevant inquiry that will guarantee unnecessary expense and delay." (Id. at p. 6).

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Defendants served subpoenas on the CIA and DOJ in late-June 2016. The Government

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responded by contending the requests were overbroad and not proportional under

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Fed.R.Civ.P. 26(b)(1). Defendants filed a Motion to Compel. (ECF No. 1 in case #16-

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mc-36). On October 4, 2016, after reviewing the extensive briefs of the parties and

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conducting a 90-minute hearing on September 29, 2016, the court issued its Order (ECF

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No. 31), which granted in part Defendants' Motion to Compel the Government to produce

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documents in response to subpoenas to the CIA and DOJ. The instant Motion "seeks

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clarification and, if appropriate, reconsideration, with regard to the scope of the Order."

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(ECF No. 32).

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Before addressing the Motion for Reconsideration/Clarification it is important to

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observe Defendants have filed, since the beginning of September 2016, four substantive

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discovery motions: two Motions to Compel, the instant Motion to Reconsider, and a
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Motion for Protective Order. The Government has filed a Motion for Protective Order,

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and both the Government and Defendants have filed motions to expedite. Plaintiffs have

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filed no discovery motions in that time and have maintained the position additional

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discovery is largely unnecessary: "It has therefore been Plaintiffs' consistent position that

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discovery in this case should be targeted, expeditious, and focused on the actions of

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Defendants and the injuries suffered by Plaintiffs." (ECF No. 25 in case # 16-mc-36, at p.

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2). Plaintiffs characterize Defendants discovery requests as "expansive", "broad", and

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"largely irrelevant." (Id. at p. 2-3). The court will not allow this matter to be unduly

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delayed while Defendants squabble with the Government over discovery.

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The Motion for Reconsideration/Clarification specifically raises three issues and

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questions: 1) whether the Government is required to produce documents concerning

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Defendants' role in the design of the CIA's Enhanced Interrogation program from 2001 to

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present; 2) whether the Government must produce documents generated between

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September 2001 and August 2004, which reference "the decision to use enhanced

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interrogation techniques with Abu Zubaydah" but do not mention Defendants; and 3)

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whether the Government must produce "post-2004 contracts" between Defendants and

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the Government. (ECF No. 32, p. 1-2). Defendants contend the answer to all three

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questions is yes. The Government contends the Motion to Reconsider should be denied

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in its entirety. (ECF No. 37).

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II. Discussion

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A. The Design Documents -

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Defendants contend production of documents concerning design of the Enhanced

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Interrogation Program (the "Program") should not be limited in temporal scope from

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September 11, 2001 to August 1, 2004. Defendants argue some documents produced in

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discovery, as well as the Senate Select Committee on Intelligence ("SSCI") Report, were

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generated after 2004 and thus demonstrate the temporal limitation is inappropriate. The

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Government correctly states this question was addressed at the September 29th hearing.

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The court clearly stated: "I am ruling that the design search is limited to, from 9-11 to 83

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1-04." (ECF No. 29, p. 48).
The SSCI Report on the CIA's Detention and Interrogation Program (hereafter

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"SSCI Report") is hundreds of pages long, and according to the introductory statement of

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Senator Feinstein was created after a multi-year investigation and review of millions of

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pages of documents.1 According to the SSCI Report, and as alleged in the Complaint, use

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of enhanced interrogation techniques began in 2002. One would reasonably expect the

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most relevant documents associated with the design of the Program were created around

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the time the Program was designed. Additionally, Defendants have the benefit of the

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exhaustive SSCI Report, which, as they acknowledge, has already provided additional

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information. The Government contends expanding the temporal scope would likely

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result in cumulative and duplicative production and such search is not proportional per

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Fed.R.Civ.P. 26(b)(1).

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Defendants' Reply brief hyperbolically contends the temporal scope "causes

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manifest injustice" and is an unfair limitation. (ECF No. 42, p. 1). Defendants point to

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documents allegedly concerning the design of the Program they obtained through

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discovery or from the SSCI Report which were created after 2004. Defendants refer to a

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2007 email referencing a meeting with Secretary of State Condoleeza Rice (ECF No. 33-

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1) and a document from discovery dated April 11, 2007 (ECF No. 33-2). Defendants

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have not been unfairly denied these documents. Rather, these documents have been

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produced. The parties also have the benefit of the extensive SSCI investigation. Further,

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the Government's Status Report of November 1, 2016 (ECF No. 45), states "several

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hundred pages" of documents recently identified as responsive are currently being

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reviewed for classification and privilege. (ECF No. 45, p. 3). The Government states the

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"overwhelming majority of these documents relate to Defendants' role in the

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interrogations of Abu Zubaydah and the design of the enhanced interrogation

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The SSCI Report is available at www.intelligence.senate.gov
(last visited 11/3/2016); see also Complaint (ECF No. 1,
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conducted' of the CIA's detention and interrogation program and
is based on six million pages of material...").
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techniques." (Id. at p. 4). Therefore, Defendants will be receiving additional documents

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on the design issue.

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Defendants' requests to expand the scope of discovery are disproportionate. Under

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Rule 26(b)(1) discovery should be "proportional to the needs of the case" and the court

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should consider: 1) the importance of the issues at stake in the action; 2) the amount in

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controversy; 3) the parties relative access to relevant information; 4) the parties

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resources; 5) the importance of the discovery in resolving issues; and 6) whether the

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burden or expense outweighs its likely benefit. The issues at stake are important. The

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issue of relative access is complicated because some of the documents Defendants seek

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are contracts to which they were a party, or even documents they allegedly drafted. One

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would expect Defendants to have access or knowledge of such documents, but perhaps

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not possession of such documents if they contain classified information. Defendants

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have extensive resources, are represented in this matter by multiple attorneys, and have

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advised the court their attorney fees are currently being paid by the Government pursuant

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to an agreement with the Government. Defendants contend the design discovery is

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important to a potential defense, but much information about the design has, or is being

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produced, or is available from other sources such as the SSCI Report and their own

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involvement in the design. The burden of expanding the search outweighs the likely

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benefit of finding information that is not duplicative. The Motion for Reconsideration on

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this issue is DENIED.

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B. Abu Zubaydah

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As the Government correctly points out, this court was quite clear in its ruling at

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the September 29, 2016 hearing: "I'm not ordering the complete furnishing of any and all

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Zubaydah documents it's only anything that relates to Zubaydah and these two

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defendants" (Transcript at ECF No. 29, p. 34). The court further stated: "My ruling is

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that any reports as they relate to these two defendants dealings with Zubaydah, between

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March of 2002 and August of 2004, are included in the subpoena." (Id.). Defendants now

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contend the court's written Order should be construed to require the Government "to
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produce all documents relating to Zubaydah provided the documents were generated

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between 9/11/01 and 8/1/04." (ECF No. 32, p. 6). Defendants argue limiting production

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to documents which reference one of the Defendants "could divest Defendants of highly

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relevant documents critical to Defendants' defense." (Id. at p. 7). This argument is not

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well-taken, and could be considered disingenuous.

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The Defendants issued a subpoena to the CIA, which was the subject of the Motion

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to Compel, and now ongoing motion practice. The subpoena contained enumerated

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document requests, and # 21 pertained to Zubaydah: "All documents relating to one or

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both Defendants' involvement, if any, in Zubaydah's capture, rendition and/or

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interrogation." (ECF 1-9)(emphasis added). Through attempts to meet and confer,

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defense counsel modified the request and "relating to" was changed to "identifying and/or

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discussing". (ECF No. 19-5). Thus, the Defendants specifically sought documents

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"identifying and/or discussing one or both Defendants...". Defendants' attempt to now

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expand the scope of subpoena to "all documents relating to Zubaydah" is rejected. The

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Motion for Reconsideration on this issue is DENIED.

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C. Post-2004 Contracts between Defendants and the Government

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At the September 29, 2016 hearing, the Government stated it had produced

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contracts up through 2004 (Transcript at ECF No. 29, p. 7). Counsel for the Government

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further stated he believed the CIA possessed contracts through 2007. (Id. at p. 8).

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Defendants seek these additional contracts and argue such contracts are relevant to their

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asserted defense "that any actions they took in connection with the Program were

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authorized by the Government within its validly-conferred authority." (ECF No. 32, p. 9).

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The Government contends contracts post-dating 2004 are irrelevant. The Government

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contends only contracts which set forth duties and functions Defendants were authorized

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to take during Plaintiffs' detention are relevant. (ECF No. 37, p. 8). The Government

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contends post-2004 contracts cannot possibly define the scope of work Defendants

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undertook pre-2004.

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The Government further argues although it has already identified the contracts,

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producing them will be burdensome due to "complex and exacting line-by-line review

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process" for classified information. (ECF No. 37, p. 10). Defendants, with their Reply

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Brief, have submitted a declaration and email correspondence in support of the contention

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the Government already reviewed the contract documents in July 2016. (ECF No. 43).

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The email correspondence between counsel states the Government "conducted a

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reasonable search of its contract records" and collected "several hundred pages" of

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"potentially relevant documents". (ECF No. 43-1, email of Andrew Warden of July 7,

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2016). Defense counsel contended only about 100 pages were produced. Mr. Warden's

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email states the contract files contained the "actual contracts" and "internal CIA

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documentation" and the contracts were "reviewed for classification, redacted where

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appropriate, and then produced." (Id.). This correspondence does not demonstrate, as

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Defendants contend, that all the contracts from 2001 to 2007 were reviewed for

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classification. The Government may have only conducted classification review for the

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contracts it believed to be relevant from 2001 to 2004. The court finds the contracts post-

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dating 2004 between Defendants and the CIA are potentially relevant, and Government

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review of these documents, if not already completed, is not unduly burdensome.

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The potential relevance of contracts post-2004 is demonstrated by a review of the

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allegations in Plaintiffs' Complaint and the Findings and Conclusions of the SSCI Report.

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The Complaint alleges Mitchell and Jessen founded Mitchell, Jessen & Associates and

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from 2005 to 2009, continued to work under contract with the CIA. (ECF No. 1, ¶ 13).

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The SSCI Report is referenced at paragraph 21 of the Complaint. Defendants' alleged

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contractual relationship with the CIA is referenced again at paragraphs 66 to 68 of the

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Complaint. The SSCI Report, under Finding and Conclusion #13, after discussing the

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role of two psychologists who contracted with the CIA and in 2005 formed a company to

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continue working with the CIA, states: "In 2007, the CIA provided a multi-year

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indemnification agreement to protect the company [presumably Mitchell, Jessen &

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Associates] and its employees from legal liability arising out of the program." (SSCI
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Report at pp. xx-xi). The relevance of such a document is demonstrated by the fact

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insurance and indemnity agreements are part of the Rule 26 initial disclosures under

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Fed.R.Civ.P. 26(a)(1)(A)(iv).

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IT IS HEREBY ORDERED:

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1. Petitioners/Defendants James Mitchell and John Jessen's Motion for

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Reconsideration of the Court's October 4, 2016 Order (ECF No. 32 in case # 16-mc-36) is

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GRANTED IN PART as set forth below and is otherwise DENIED.

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2. The Government has stated it possesses additional contracts between the CIA

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and Defendants relating to the enhanced interrogation program. The Government shall

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produce those contracts as soon as possible and no later than November 23, 2016.
3. If necessary, pursuant to the Government's classification review, the contracts

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may be produced with redactions. If redacted, the Government shall state the basis for

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the redactions.

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IT IS SO ORDERED. The Clerk is hereby directed to enter this Order and
furnish copies to counsel.
DATED this 8th day of November, 2016.
s/ Justin L. Quackenbush
JUSTIN L. QUACKENBUSH
SENIOR UNITED STATES DISTRICT JUDGE

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