Wagafe et al v. United States Citizenship and Immigration Services et al

Filing 98

ORDER granting in part and denying in part Plaintiffs' 91 Motion to Compel Production of Documents. The Court orders the parties to meet and confer and submit a joint status report thereafter in accordance with this Order. Signed by Judge Richard A Jones. (TH)

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1 HONORABLE RICHARD A. JONES 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 ABDIQAFAR WAGAFE, et al., on behalf of themselves and others similarly situated, 12 Plaintiffs, 13 14 15 CASE NO. C17-94 RAJ ORDER v. DONALD TRUMP, President of the United States, et al., 16 Defendants. 17 18 19 20 21 22 23 24 25 26 This matter comes before the Court on Plaintiffs’ Motion to Compel Production of Documents. Dkt. # 91. The Government opposes the Motion. Dkt. # 94. For the following reasons, the Court GRANTS in part and DENIES in part the Motion. I. BACKGROUND On June 21, 2017, the Court granted Plaintiffs’ motion to certify two classes: a Naturalization Class and an Adjustment Class. Dkt. # 69. The parties have since been engaged in discovery. The parties have attempted to resolve their discovery disputes without court intervention but have reached an impasse. Plaintiffs now move the Court to compel the Government to produce certain documents. 27 ORDER- 1 1 II. 2 The Court has broad discretion to control discovery. Hallett v. Morgan, 296 F.3d LEGAL STANDARD 3 732, 751 (9th Cir. 2002); see also Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 4 833 (9th Cir. 2011), In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). That 5 discretion is guided by several principles. Most importantly, the scope of discovery is 6 broad. A party must respond to any discovery request that is not privileged and that is 7 “relevant to any party’s claim or defense and proportional to the needs of the case, 8 considering the importance of the issues at stake in the action, the amount in controversy, 9 the parties’ relative access to relevant information, the parties’ resources, the importance 10 of the discovery in resolving the issues, and whether the burden or expense of the 11 proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). 12 If a party refuses to respond to discovery, the requesting party “may move for an 13 order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). “The party who 14 resists discovery has the burden to show that discovery should not be allowed, and has 15 the burden of clarifying, explaining, and supporting its objections.” Cable & Computer 16 Tech., Inc. v. Lockheed Saunders, Inc., 175 F.R.D. 646, 650 (C.D. Cal. 1997). 17 III. 18 Plaintiffs seek, and the Government refuses to provide, discovery in four discrete DISCUSSION 19 areas: (1) information to allow Plaintiffs to identify potential class members and why 20 Named Plaintiffs were subjected to CARRP; (2) responsive documents despite their 21 classified status, or a privilege log in lieu of the documents; (3) documents related to two 22 Executive Orders; and (4) documents outside the scope of “national applicability.” Dkt. 23 # 91. 24 A. Identifying Class Members 25 As to the first matter, the Government argues that the class members’ specific 26 identities are neither relevant nor required for Plaintiffs to pursue this class action. Dkt. # 27 94 at 4-5. Many of the Government’s arguments in opposition to this request are mere ORDER- 2 1 conclusions, and therefore are not sufficient to avoid disclosure. See id. at 4-6. However, 2 the Government advances two arguments that are supported by more than mere 3 conclusions: (1) identifying class members is unreasonably burdensome, and (2) the 4 identities of class members are privileged. Id. at 6-7. 5 In asserting that that task of identifying class members is too burdensome, the 6 Government concedes that it already compiles potential class members into searchable 7 databases. Dkt. # 94-6 at ¶¶ 13-21. It claims, however, that conducting detailed, quality 8 assurance on these searches will cost up to $1.17 million. Id. at ¶ 26. This does not 9 diminish the fact that the Government is capable of at least providing Plaintiffs with 10 spreadsheets of the potential class members—information that already exists and is 11 readily accessible. See id. at ¶ 23 (based on the data it has, the Government estimates that 12 roughly 3,000 CARRP cases exist). This information is relevant and the Government can 13 produce it without incurring such a high expense. 14 That Government further argues that, even if producing the records were not 15 burdensome, the requested discovery is protected by the law enforcement privilege. Dkt. 16 ## 94 at 7-8, 94-5 at ¶ 7. To claim this privilege, the Government must satisfy three 17 requirements: (1) there must be a formal claim of privilege by the head of the department 18 having control over the requested information; (2) assertion of the privilege must be 19 based on actual personal consideration by that official; and (3) the information for which 20 the privilege is claimed must be specified, with an explanation why it properly falls 21 within the scope of the privilege. In re Sealed Case, 856 F.2d at 271. This privilege is 22 qualified: “[t]he public interest in nondisclosure must be balanced against the need of a 23 particular litigant for access to the privileged information.” Id. at 272. 24 The Government contends, broadly, that releasing the identities of potential class 25 members could lead individuals to potentially alter their behavior, conceal evidence of 26 wrongdoing, or attempt to influence others in a way that could affect national security 27 interests. Dkt. # 94-5 at ¶ 18. Such a vague, brief explanation that consists of mere ORDER- 3 1 speculation and a hypothetical result is not sufficient to claim privilege over basic 2 spreadsheets identifying who is subject to CARRP. See, e.g., In re Sealed Case, 856 F.2d 3 at 272 (explaining that the SEC “submitted a lengthy declaration detailing the effect 4 disclosure would have on its ongoing Wall Street investigation” to support its claim for 5 privilege). Even if it were sufficient, the privilege is not automatic; the Court must 6 balance the need for Plaintiffs to obtain this information against the Government’s 7 reasons for withholding. In doing so, the Court finds that the balance weigh in favor of 8 disclosure. The Court notes that there is a protective order in place, Dkt. # 86, and 9 Plaintiffs’ attorneys could supplement the protective order or obtain security clearances 10 to assuage any remaining concerns on the part of the Government. Latif v. Holder, 28 F. 11 Supp. 3d 1134, 1160 (D. Or. 2014) (citing Al Haramain Islamic Found., Inc. v. U.S. 12 Dep't of Treasury, 686 F.3d 965, 983 (9th Cir. 2012)). 13 Finally, Plaintiffs request to know why the Named Plaintiffs were subjected to 14 CARRP. 1 For the same reasons stated above, the Court finds that this information is 15 relevant to the claims and Plaintiffs’ needs outweigh the Government’s reasons for 16 withholding. 17 B. Classified Documents 18 The Government claims that no relevant classified documents exist. Dkt. # 94 at 19 9. It appears that the Government only searched for classified documents that relate to 20 CARRP on a programmatic level. Id.; see also Dkt. # 91 at 11. 2 The Government asserts 21 that any other documentation is irrelevant. As stated above, the Court rejected the 22 23 24 25 26 27 1 Importantly, Plaintiffs seek this information only on behalf of the Named Plaintiffs, not for each potential class member. 2 Plaintiffs included this clarifying information in a footnote. The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. See Local Rules W.D. Wash. LCR 7(e). Moreover, several courts have observed that “citations are highly relevant in a legal brief” and including them in footnotes “makes brief-reading difficult.” Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2014 WL 289924, at *1 (D. Ariz. Jan. 24, 2014). The Court strongly discourages the parties from footnoting their legal citations in any future submissions. See Kano v. Nat’l Consumer Co-op Bank, 22 F.3d 899-900 (9th Cir. 1994). ORDER- 4 1 Government’s conclusory arguments as to relevance. As such, the Government must 2 either produce the relevant documents or provide Plaintiffs with a proper privilege log. 3 C. Documents Related to the Executive Orders 4 Plaintiffs seek documents that connect any kind of “extreme vetting” program to 5 two Executive Orders. Dkt. # 91 at 14-15. The Government refuses to search for such 6 documents, arguing that any such documents are subject to the deliberative-process 7 privilege. But this argument is premature; the Government fails to show why it is exempt 8 from providing Plaintiffs with a privilege log. The Court finds that the Government must 9 provide a proper privilege log if it means to assert a deliberative-process privilege over 10 certain documents. 11 The Government further invokes Executive privilege and argues that Plaintiffs 12 have not made a “showing of heightened need” to demand discovery from the President. 13 Dkt. # 94 at 10-11. Plaintiffs argue that the Government must “provide alternate 14 custodians and non-custodial sources of information that will capture the documents 15 Plaintiffs seek.” Dkt. # 91 at 16. The Court is mindful that intruding on the Executive in 16 this context is a matter of last resort, Cheney v. U.S. Dist. Ct. for the Dist. Of Columbia, 17 542 U.S. 367 (2004), and the Court does not find that the record before it justifies such an 18 intrusion. However, the Court orders the parties to meet and confer within thirty (30) 19 days from the date of this Order to discuss alternative custodians and non-custodial 20 sources of information for any discovery over which the Government asserts this specific 21 privilege. The Court requests a joint status report within five (5) days of the court22 ordered conference detailing any resolution of this issue. 23 D. Nationwide Applicability 24 Plaintiffs object to the Government’s refusal to produce documents outside the 25 scope of “national applicability.” Dkt. # 91 at 17. The Government argues that searching 26 for documents outside of this scope is unduly burdensome and irrelevant. Dkt. # 94 at 27 12-13. However, Plaintiffs clarify in their Reply that they are not seeking documents ORDER- 5 1 beyond those that the Government “already agreed to search.” Dkt. # 95 at 7. If this is 2 the case, then it appears that the parties are able to resolve this dispute without Court 3 intervention. To the extent that Plaintiffs seek documents for which the Government has 4 already searched, the Court grants the request with the caveat that the Government may 5 produce a privilege log in lieu of the documents if appropriate. 6 IV. 7 For the foregoing reasons, the Court GRANTS in part and DENIES in part CONCLUSION 8 Plaintiffs’ Motion to Compel Production of Documents. Dkt. # 91. The Court orders 9 the parties to meet and confer and submit a joint status report thereafter in 10 accordance with this Order. 11 12 Dated this 19th day of October, 2017. 13 A 14 15 The Honorable Richard A. Jones United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 ORDER- 6

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