Karnoski et al v. Trump et al

Filing 517

JOINT STIPULATION CONCERNING THE COURT'S ORDERS ON PLAINTIFFS' REQUEST FOR PRODUCTION NO. 44 AND WASHINGTON'S REQUEST FOR PRODUCTION NO. 16 per parties' 516 Stipulation. Defendants' 488 Motion for Extension of Time shall be denied as moot. Signed by Judge Marsha J. Pechman. (PM)

Case 2:17-cv-01297-MJP Document 517 Filed 05/20/20 Page 1 of 9

1
The Honorable Marsha J. Pechman

2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE

8
9
10

RYAN KARNOSKI, et al.,
Plaintiffs,

11
12
13
14

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

No. 2:17-cv-1297-MJP
JOINT STIPULATION
CONCERNING THE COURT’S
ORDERS ON PLAINTIFFS’
REQUEST FOR PRODUCTION NO.
44 AND WASHINGTON’S REQUEST
FOR PRODUCTION NO. 16

15
16
17
18
19
20
21
22
23
24
25
26
27
28
JOINT STIPULATION CONCERNING THE COURT’S ORDERS ON PLAINTIFFS’
REQUEST FOR PRODUCTION NO. 44 AND WASHINGTON’S REQUEST FOR
PRODUCTION NO. 16
Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, DC 20005
Tel: [phone]

Case 2:17-cv-01297-MJP Document 517 Filed 05/20/20 Page 2 of 9

1

Plaintiffs Ryan Karnoski, Staff Sergeant Cathrine Schmid, D.L., Chief Warrant Officer

2

Lindsey Muller, Petty Officer First Class Terece Lewis, Petty Officer Second Class Phillip

3

Stephens, Petty Officer Second Class Megan Winters, Jane Doe, Human Rights Campaign,

4

Gender Justice League, and American Military Partners Association n/k/a Modern Military

5

Association of America (collectively “Plaintiffs”), Plaintiff-Intervenor State of Washington,

6

and Defendants Donald J. Trump, Mark Esper, and the United States Department of Defense

7

(collectively “Defendants,” and together with Plaintiffs and Plaintiff-Intervenor, “Parties”)

8

hereby stipulate as follows:

9
10
11
12
13
14
15
16
17

WHEREAS, on April 15, 2020, the Court granted Plaintiffs’ motion to compel
documents responsive to their Request for Production (“RFP’) No. 44, ordering that, by May 1,
2020, Defendants must (1) “produce to the Court for in camera review a list of the name, rank,
and service unit of each transgender service member rendered non-deployable on account of
gender dysphoria or transition-related medical care, and the duration of and specific reason(s)
for such non-deployability for each service branch since June 30, 2016”; and (2) “provide
Plaintiffs with a version of the list, subject to the Parties’ protective order, and substituting a
unique anonymized identifier in place of each member’s name.” Order 1–2, Dkt. 485.
WHEREAS, on April 20, 2020, the Court ordered Defendants to provide responses to,

18
among other things, Washington’s Interrogatory No. 16 and RFP No. 16 (“WA Request Nos.
19
16”). Order Dkt. No. 486.
20
WHEREAS, on April 27, 2020, Defendants moved for a 75-day extension of time to
21
22
23
24
25
26
27
28

respond to the Court’s order on Plaintiffs’ RFP No. 44. Dkt. 488. Defendants explained that
complying with the Court’s order would require a review by medical professionals of more
than 1,000 service members’ medical records and would take approximately nine weeks. Id.
Defendants further explained that the current COVID-19 pandemic resulted in the review
taking longer than it would otherwise. Id.
WHEREAS, on April 29, 2020, the parties met and conferred regarding Defendants’
motion for an extension of time, and Plaintiffs expressed concern that the review method
JOINT STIPULATION CONCERNING THE COURT’S ORDERS ON PLAINTIFFS’
REQUEST FOR PRODUCTION NO. 44 AND WASHINGTON’S REQUEST FOR
PRODUCTION NO. 16 - 1
Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, DC 20005
Tel: [phone]

Case 2:17-cv-01297-MJP Document 517 Filed 05/20/20 Page 3 of 9

1

detailed in the declarations in connection with Defendants’ motion involved a post hoc

2

determination by one of Defendants’ employees for purposes of this litigation based on an after

3

the fact and discretionary view of whether a service member would have been non-deployable

4

on account of gender dysphoria or transition-related medical care. Plaintiffs further stated that

5

only contemporaneous determinations of non-deployability reflected directly in service

6

members’ records are responsive to their request. Defendants explained that, notwithstanding

7

Plaintiffs’ view of what materials were responsive to their request, the only way to comply with

8

the Court’s order to submit in camera “a list of the name, rank, and service unit of each

9
10
11
12
13

transgender service member rendered non-deployable on account of gender dysphoria or
transition-related medical care, and the duration of and specific reason(s) for such nondeployability for each service branch since June 30, 2016,” Order 1–2, Dkt. 485, would be to
conduct a review in the manner specified in Defendants’ declarations, see Dkts. 489-2, 489-3,
489-4.

14
15

WHEREAS, on May 1, 2020, Defendants filed an interim response to the Court’s order
on RFP No. 44. Dkt. 493.

16
17

WHEREAS, on May 4, 2020, the parties again met and conferred in an effort to reach
an agreement on Defendants’ method for responding to RFP No. 44 and WA Request Nos. 16.

18
WHEREAS, on May 5, 2020, the parties filed a joint stipulation requesting an extension
19
of Plaintiffs’ deadline to respond to Defendants’ motion for extension of time to respond to the
20
Court’s order on Plaintiffs’ RFP No. 44. In the joint stipulation, the parties explained that they
21
22
23
24
25
26
27
28

had held a meet-and-confer and were working towards reaching an agreement regarding
Defendants’ response to Plaintiffs’ RFP No. 44, subject to the Court’s approval. Id. On May 6,
2020, the Court granted the requested extension of Plaintiffs’ response deadline. Order, Dkt.
499.
WHEREAS, on May 6, 2020, the parties met and conferred regarding Defendants’
deadline to respond to WA Request Nos. 16 and further conferred in an effort to reach
agreement on Defendants’ method of responding to RFP No. 44 and WA Request Nos. 16.
JOINT STIPULATION CONCERNING THE COURT’S ORDERS ON PLAINTIFFS’
REQUEST FOR PRODUCTION NO. 44 AND WASHINGTON’S REQUEST FOR
PRODUCTION NO. 16 - 2
Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, DC 20005
Tel: [phone]

Case 2:17-cv-01297-MJP Document 517 Filed 05/20/20 Page 4 of 9

1

WHEREAS, on May 6, 2020, the parties filed a joint stipulation requesting a 28-day

2

extension of time for Defendants to respond to WA Request Nos. 16. Dkt. 501. In the joint

3

stipulation, the parties explained that they had held a meet-and-confer and were currently

4

discussing the types of documents responsive to RFP 16 and whether the parties can reach an

5

agreement on the documents to be produced in response to RFP 16. Id. On May 11, 2020, the

6

Court granted the requested extension concerning WA Request Nos. 16. Dkt. 507.

7
8
9
10
11
12
13
14
15
16
17

WHEREAS, on May 13, 2020, the parties filed a joint stipulation requesting a second
extension of Plaintiffs’ deadline to respond to Defendants’ motion for extension of time to
respond to the Court’s order on Plaintiffs’ RFP No. 44. Dkt. 511. In the joint stipulation, the
parties explained that they had been working towards reaching an agreement regarding the
Government’s response to Plaintiffs’ Request for Production Number 44, and that additional
time was required to finalize the details of the agreement. Id. On May 14, 2020, the Court
granted the requested extension of Plaintiffs’ response deadline. Order, Dkt. 512.
WHEREAS, the parties have continued to meet and confer and work towards an
agreement on Defendants’ response to the Court’s orders concerning Plaintiffs’ RFP No. 44
and WA RFP No. 16.
NOW THEREFORE, the Parties, through their respective counsel of record, do hereby

18
stipulate and agree as follows:
19

•

By June 1, 2020, Defendants shall produce to Plaintiffs (1) all “profiles” of

20
Army or Air Force service members related to a condition that reasonably might
21
22
23
24
25
26
27

be associated with gender dysphoria or transition treatment since June 30, 2016;
and (2) all “Limited Duty” or “LIMDU” records of Navy service members
related to a condition that reasonably might be associated with gender dysphoria
or transition treatment since June 30, 2016. Defendants shall be permitted to
redact personally identifiable information from these records. However, where
multiple “profiles” or “Limited Duty” records relate to the same service

28
JOINT STIPULATION CONCERNING THE COURT’S ORDERS ON PLAINTIFFS’
REQUEST FOR PRODUCTION NO. 44 AND WASHINGTON’S REQUEST FOR
PRODUCTION NO. 16 - 3
Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, DC 20005
Tel: [phone]

Case 2:17-cv-01297-MJP Document 517 Filed 05/20/20 Page 5 of 9

1

member, Defendants will so indicate. 1
•

2

However, Defendants having advised that the profiles may not directly indicate

3

whether a condition is related to gender dysphoria or transition related medical

4

care, Plaintiffs and Plaintiff-Intervenor reserve their right to seek additional

5

documents or information once the above documents have been produced and

6

Plaintiffs and Plaintiff-Intervenor have had opportunity to review.

7

•

8

Subject to the above reservation of rights, the parties agree that this satisfies
Defendants’ obligations to respond to Plaintiffs’ RFP No. 44 and, with the

9

exception of Coast Guard records, Washington’s RFP No. 16, and that

10

Defendants need not provide additional information or documents to satisfy the

11

Court’s orders (Dkt. 485, 486, and 507) with respect to those requests at this

12

time. 2

13

•

14

Defendants’ motion for a 75-day extension of time to respond to the Court’s
order on Plaintiffs’ RFP No. 44, Dkt. 488, shall be denied as moot.

15
16

SO STIPULATED.

17
18

Respectfully submitted, May 20, 2020.

19

NEWMAN DU WORS LLP

UNITED STATES
DEPARTMENT OF JUSTICE

s/Rachel Horvitz

s/Matthew Skurnik

20
21
22
23
24
1

25
26
27
28

By way of example only, Defendants will not produce profiles and Limited Duty records related to conditions
such as a broken toe, which could not reasonably be associated with gender dysphoria or transition related care.
However, Defendants will produce profiles and Limited Duty records related to conditions such as a mastectomy,
which could reasonably relate to gender dysphoria or transition related care.
2
Defendants’ obligations as to the Coast Guard and for all other requests, including Washington’s Interrogatory
No. 16, shall remain as previously ordered. See Dkt. 507. Parties will continue attempts to reach a similar
agreement regarding the Coast Guard’s records as the Coast Guard completes its response to Washington’s
Interrogatory No. 16.
JOINT STIPULATION CONCERNING THE COURT’S ORDERS ON PLAINTIFFS’
REQUEST FOR PRODUCTION NO. 44 AND WASHINGTON’S REQUEST FOR
PRODUCTION NO. 16 - 4
Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, DC 20005
Tel: [phone]

Case 2:17-cv-01297-MJP Document 517 Filed 05/20/20 Page 6 of 9

1
2
3
4
5
6
7
8
9
10
11
12

Derek A. Newman, WSBA No. 26967
[e-mail]
Jason B. Sykes, WSBA No. 44369
[e-mail]
Rachel Horvitz, WSBA No. 52987
[e-mail]
2101 Fourth Ave., Ste. 1500
Seattle, WA 98121
[phone]
LAMDBA LEGAL DEFENSE AND
EDUCATION FUND, INC.
Tara Borelli, WSBA No. 36759
[e-mail]
Camilla B. Taylor (admitted pro hac vice)
Peter C. Renn (admitted pro hac vice)
Sasha Buchert (admitted pro hac vice)
Kara Ingelhart (admitted pro hac vice)
Carl Charles (admitted pro hac vice)
Paul D. Castillo (admitted pro hac vice)

13
14
15
16
17
18
19
20
21
22
23
24
25
26

OUTSERVE-SLDN, INC. N/K/A
MODERN MILITARY ASSOCIATION
OF AMERICA
Peter Perkowski (admitted pro hac vice)
KIRKLAND & ELLIS LLP
James F. Hurst, P.C. (admitted pro hac vice)
Steve Patton (admitted pro hac vice)
Jordan M. Heinz (admitted pro hac vice)
Vanessa Barsanti (admitted pro hac vice)
Daniel I. Siegfried (admitted pro hac vice)
Counsel for Plaintiffs

JOSEPH H. HUNT
Assistant Attorney General
Civil Division
ALEXANDER K. HAAS
Branch Director
ANTHONY J. COPPOLINO
Deputy Director
ANDREW E. CARMICHAEL, VA Bar #
76578
[e-mail]
MATTHEW SKURNIK, NY Bar # 5553896
[e-mail]
JAMES R. POWERS, TX Bar #24092989
[e-mail]
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street NW, Suite 12108
Washington, DC 20530
[phone]

Counsel for Defendants
OFFICE OF THE WASHINGTON
STATE ATTORNEY GENERAL

s/ Chalia I. Stallings-Ala’ilima
Colleen M. Melody, WSBA No. 42275
[e-mail]
Chalia I. Stallings-Ala’ilima, WSBA No.
40694
[e-mail]
Assistant Attorneys General
Civil Rights Unit
Attorney General’s Office
800 5th Ave, Suite 2000
Seattle, WA 98104
[phone]
Counsel for Plaintiff-Intervenor State of
Washington

27
28
JOINT STIPULATION CONCERNING THE COURT’S ORDERS ON PLAINTIFFS’
REQUEST FOR PRODUCTION NO. 44 AND WASHINGTON’S REQUEST FOR
PRODUCTION NO. 16 - 5
Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, DC 20005
Tel: [phone]

Case 2:17-cv-01297-MJP Document 517 Filed 05/20/20 Page 7 of 9

ORDER

1

This matter comes before the Court on the Parties’ Joint Stipulation Concerning the

2
3
4
5

Court’s Orders on Plaintiffs Request for Production No. 44 and Washington’s Request for
Production No. 16. After considering the Parties’ Joint Stipulation, the Court hereby ORDERS
the following:
•

6

By June 1, 2020, Defendants shall produce to Plaintiffs (1) all “profiles” of

7

Army or Air Force service members related to a condition that reasonably might

8

be associated with to gender dysphoria or transition treatment since June 30,

9

2016; and (2) all “Limited Duty” or “LIMDU” records of Navy service members

10

related to a condition that reasonably might be associated with gender dysphoria

11

or transition treatment since June 30, 2016. Defendants shall be permitted to

12

redact personally identifiable information from these records. However, where

13

multiple “profiles” or “Limited Duty” records relate to the same service

14

member, Defendants will so indicate.
•

15

However, Defendants having advised that the profiles may not directly indicate

16

whether a condition is related to gender dysphoria or transition related medical

17

care, Plaintiffs and Plaintiff-Intervenor have reserved their right to seek

18

additional documents or information once the above documents have been

19

produced and Plaintiffs and Plaintiff-Intervenor have had opportunity to review.
•

20

Subject to the above reservation of rights, Defendants’ have satisfied their

21

obligations to respond to Plaintiffs’ RFP No. 44 and, with the exception of Coast

22

Guard records, Washington’s RFP No. 16, and Defendants need not provide

23

additional information or documents to satisfy the Court’s orders (Dkt. 485,

24

486, and 507) with respect to those requests at this time. 3 Defendants’ motion

25

for a 75-day extension of time to respond to the Court’s order on Plaintiffs’ RFP

26
27
28

3

Defendants’ obligations as to the Coast Guard and for all other requests, including Washington’s Interrogatory
No. 16, shall remain as previously ordered. See Dkt. 507. Parties are permitted to submit a future stipulation
regarding the Coast Guard’s records if an agreement is reached.
JOINT STIPULATION CONCERNING THE COURT’S ORDERS ON PLAINTIFFS’
REQUEST FOR PRODUCTION NO. 44 AND WASHINGTON’S REQUEST FOR
PRODUCTION NO. 16 - 6
Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, DC 20005
Tel: [phone]

Case 2:17-cv-01297-MJP Document 517 Filed 05/20/20 Page 8 of 9

1
2

No. 44, Dkt. 488, shall be denied as moot.
IT IS SO ORDERED.

3
4

DATED this 20th day of May, 2020.

5

A

6

Marsha J. Pechman
Senior United States District Judge

7
8
9
10
11

Presented By:
NEWMAN DU WORS LLP

UNITED STATES
DEPARTMENT OF JUSTICE

12
13
14
15
16
17
18
19
20
21
22
23
24
25

s/ Rachel Horvitz
Derek A. Newman, WSBA No. 26967
[e-mail]
Jason B. Sykes, WSBA No. 44369
[e-mail]
Rachel Horvitz, WSBA No. 52987
[e-mail]
2101 Fourth Ave., Ste. 1500
Seattle, WA 98121
[phone]
LAMDBA LEGAL DEFENSE AND
EDUCATION FUND, INC.
Tara Borelli, WSBA No. 36759
[e-mail]
Camilla B. Taylor (admitted pro hac vice)
Peter C. Renn (admitted pro hac vice)
Sasha Buchert (admitted pro hac vice)
Kara Ingelhart (admitted pro hac vice)
Carl Charles (admitted pro hac vice)
Paul D. Castillo (admitted pro hac vice)

26
27
28

OUTSERVE-SLDN, INC. N/K/A
MODERN MILITARY ASSOCIATION

s/ Matthew Skurnik
JOSEPH H. HUNT
Assistant Attorney General
Civil Division
ALEXANDER K. HAAS
Branch Director
ANTHONY J. COPPOLINO
Deputy Director
ANDREW E. CARMICHAEL, VA Bar #
76578
[e-mail]
MATTHEW SKURNIK, NY Bar # 5553896
[e-mail]
JAMES R. POWERS, TX Bar #24092989
[e-mail]
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street NW, Suite 12108
Washington, DC 20530
[phone]

Counsel for Defendants

JOINT STIPULATION CONCERNING THE COURT’S ORDERS ON PLAINTIFFS’
REQUEST FOR PRODUCTION NO. 44 AND WASHINGTON’S REQUEST FOR
PRODUCTION NO. 16 - 7
Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, DC 20005
Tel: [phone]

Case 2:17-cv-01297-MJP Document 517 Filed 05/20/20 Page 9 of 9

1

OF AMERICA
Peter Perkowski (admitted pro hac vice)

OFFICE OF THE WASHINGTON
STATE ATTORNEY GENERAL

2
3
4
5

KIRKLAND & ELLIS LLP
James F. Hurst, P.C. (admitted pro hac vice)
Steve Patton (admitted pro hac vice)
Jordan M. Heinz (admitted pro hac vice)
Vanessa Barsanti (admitted pro hac vice)
Daniel I. Siegfried (admitted pro hac vice)

6
7
8
9
10
11

Counsel for Plaintiffs

s/ Chalia I. Stallings-Ala’ilima
Colleen M. Melody, WSBA No. 42275
[e-mail]
Chalia I. Stallings-Ala’ilima, WSBA No.
40694
[e-mail]
Assistant Attorneys General
Civil Rights Unit
Attorney General’s Office
800 5th Ave, Suite 2000
Seattle, WA 98104
[phone]
Counsel for Plaintiff-Intervenor State of
Washington

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
JOINT STIPULATION CONCERNING THE COURT’S ORDERS ON PLAINTIFFS’
REQUEST FOR PRODUCTION NO. 44 AND WASHINGTON’S REQUEST FOR
PRODUCTION NO. 16 - 8
Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, DC 20005
Tel: [phone]