Karnoski et al v. Trump et al

Filing 479

ORDER APPOINTING SPECIAL MASTER. Signed by Judge Marsha J. Pechman. (Attachments: # 1 Declaration of James Donohue)(MW)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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RYAN KARNOSKI, et al.,
Plaintiffs,

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CASE NO. C17-1297
ORDER APPOINTING SPECIAL
MASTER

v.
DONALD J TRUMP, et al.,
Defendants.

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This Order follows the Court’s Notice of the Appointment of a Special Master. (Dkt. No.

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466.) Finding that the Parties’ two-year discovery dispute cannot be effectively and timely

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addressed by the Court or by any available district judge or magistrate judge of the district, and

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having heard from the Parties (Dkt. Nos. 470, 472, 474, 476, 478), the Court appoints retired

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United States Magistrate Judge, the Honorable James P. Donohue to serve as Special Master.

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In its Notice of Appointment, the Court requested that the Parties propose names of

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special master candidates (Dkt. No. 466). During the April 2, 2020 Status Conference, the Court

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discussed Plaintiffs’ proposed candidates—Defendants did not submit proposals by the

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ORDER APPOINTING SPECIAL MASTER - 1

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deadline—and asked for feedback on three candidates proposed by the Court. (Dkt. No. 476 at

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34:10-36:17.) During this discussion, Defendants requested a master “who has substantial

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experience adjudicating claims of government privilege” and “somebody who has prior federal

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judicial experience.” (Dkt. No. 35:25-36:5.) Of the candidates proposed by the Parties and the

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Court, only Judge Donohue holds those qualifications.

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Judge Donohue was appointed United States Magistrate Judge for the Western District of

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Washington in 2005, serving for 14 years before his retirement in March 2019. In 2015, he was

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appointed Chief Magistrate Judge for the District. Prior to his appointment to the bench, Judge

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Donohue was a shareholder in the Seattle office of Heller Ehrman White & McAuliffe, LLP

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where his practice was focused on commercial and intellectual property litigation. Judge

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Donohue also served as the Articles Editor for the Federal Courts Law Review.

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He received his A.B. from the University of Illinois in 1973, and his J.D. from the

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University of California, Los Angeles, in 1976, where he was a member of the UCLA Law

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Review. After his graduation, he served as a VISTA volunteer before going into private practice.

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Judge Donohue served on the Ninth Circuit Pro Se Committee, a committee he chaired from

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2009-13. He was also on the Ninth Circuit Magistrate Judge Education Committee and was

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elected to serve on the Board of Directors of the Federal Magistrate Judges Association,

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representing the Ninth Circuit. He was one of the founding members and first president of the

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Seattle Intellectual Property Inns of Court. Judge Donohue also served on the Board of Directors

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of the Special Olympics of Washington.

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Defendants have objected to the appointment of Judge Donohue, arguing that an article

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he recently authored demonstrates “at a minimum, an appearance of bias against Defendants.”

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(Dkt. No. 478 at 2.) The Court has reviewed the article and finds no bias; to the contrary, the

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central argument of the article is that judges must remain apolitical and impartial. See James P.

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Donohue, I was a Federal Judge. My Former Colleagues Must Stop Attending Federalist Society

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Events, Slate.com, https://slate.com/news-and-politics/2019/11/federalist-society-federal-judges-

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unethical.html (last visited April 8, 2020 (“Judges are supposed to be apolitical. The rule of law

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requires that decisions be based on the laws and Constitution of the United States, and not a

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judge’s personal views or political preference.”) Further, the article neither mentions the subject

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matter of this lawsuit nor the named parties. (See id.) And based on his extensive experience

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and conduct for fourteen years as a federal magistrate judge, the Court has every confidence that

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Judge Donohue will carry out his duties as Special Master with impartiality.

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Defendants also expressed concerns about whether the special master’s fees could be split

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equitably between the Parties and whether such fees would be in line with the Government’s

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sovereign immunity. (Dkt. No. 476 at 10:18-11:2.) Because Judge Donohue has agreed to act

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as Special Master, pro bono, those concerns are no longer relevant.

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The Court therefore appoints Judge Donahue Special Master, with the following duties
and limitations pursuant to Rule 53 of the Federal Rules of Civil Procedure.

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1. Appointment and Scope. Pursuant to Rule 53(a)(1)(C), the Court appoints

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Judge Donohue as Special Master to assist the Court in reviewing Defendants’ privilege

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assertions over documents the Defendants have submitted for in camera review.

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2. No Grounds for Disqualification. Pursuant to Rules 53(a)(2) and 53(b)(3), the

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Court attaches to this Order the Special Master’s declaration identifying any relationship to the

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Parties, counsel, action, or Court that would require disqualification of a judge under 28 U.S.C.

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§ 455.

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3. Fairness Considerations. Pursuant to Rule 53(a)(3), the Court will protect

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against unreasonable delay through communication with the Special Master and the Parties as

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appropriate.

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4. Notice. Pursuant to Rule 53(b)(1), the Court provided notice to the Parties of its

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intent to appoint a Special Master and provided an opportunity to be heard on the appointment.

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(See Dkt. Nos. 466, 470, 472, 474, 476, 478.)

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5. Diligence. Pursuant to Rule 53(b)(2), the Court directs the Special Master to
proceed with all reasonable diligence.
6. Special Master’s Duties and Scope of Authority. Pursuant to Rule 53(b)(2)(A),

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the Special Master shall assist with certain matters, as the Court may determine after notice to

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the Parties. At this point, the Court limits the scope of the Special Master’s authority to the

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evaluation of Defendants’ privilege assertions over documents the Defendants submitted for in

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camera review. The Special Master shall identify to the Court those documents over which he

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believes the Defendants erroneously made privilege assertions. The Court will then review those

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documents de novo. The Special Master may recommend but not issue sanctions, Fed. R. Civ. P.

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53(c)(2), and may not issue orders, Fed. R. Civ. P. 53(c)-(d), but shall report his findings directly

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to the Court.

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7. Ex Parte Communications. Pursuant to Rule 53(b)(2)(B), the Special Master

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may communicate ex parte with the Court without restriction. The Special Master shall not

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communicate ex parte with any party.

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8. Preservation of Materials. Pursuant to Rule 53(b)(2)(C), the Special Master
shall maintain orderly files consisting of all documents submitted to him by the Parties.

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9. Compensation. Judge Donohue has agreed to serve as the Special Master, pro
bono.
10. Amendments. Pursuant to Rule 53(b)(4), the Court may amend this Order at any
time after notice to the Parties and an opportunity to be heard.

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The clerk is ordered to provide copies of this order to all counsel.

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Dated April 9, 2020.

A

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Marsha J. Pechman
Senior United States District Judge

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