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Wagafe v. Trump

United States District Court, W.D. Washington

January 10, 2018

ABDIQAFAR WAGAFE, et al., on behalf of themselves and others similarly situated, Plaintiffs,
v.
DONALD TRUMP, President of the United States, et al., Defendants.

          ORDER ON LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS. 23 & 24

          HONORABLE RICHARD A. JONES UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on a joint submission made to the Court pursuant to the expedited procedure for resolution of discovery disputes set forth in Local Rule W.D. Wash. LCR 37(a). Dkt. # 103.

         I. BACKGROUND

         On October 19, 2017, the Court granted in part and denied in part Plaintiffs' motion to compel production of documents. Dkt. # 98. The Court required the Government to produce a privilege log for any documents related to the Executive Orders over which it wished to assert a deliberative-process privilege. Id. at 5. The Court further ordered the parties to meet and confer to discuss whether alternative custodians or non-custodial sources were available to produce documents relating extreme vetting programs to two Executive Orders. Id.

         The parties met and conferred and reached an impasse. Dkt. # 103 at 2. The disputed discovery requests that are the subject of this Rule 37 Joint Motion are referenced below:

REQUEST FOR PRODUCTION NO. 23: All Documents referring or relating to any consideration of or reference to CARRP during the planning, drafting, or issuing of the First and Second EOs.
REQUEST FOR PRODUCTION NO. 24: All Documents referring or relating to “extreme vetting” or any other screening, vetting, or adjudication program, policy, or procedure connected to the First or Second EOs. This request includes, but is not limited to, programs that reference, relate to, or expand upon CARRP.

         II. LEGAL STANDARD

         The Court has broad discretion to control discovery. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002); see also Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011), In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). That discretion is guided by several principles. Most importantly, the scope of discovery is broad. A party must respond to any discovery request that is not privileged and that is “relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1).

         III. ANALYSIS

         A. Request for Production No. 23 (“Request No. 23”)

         Defendants contend that the dispute regarding Request No. 23 is premature and should not be before this Court. Dkt. # 103 at 9. Specifically, Defendants argue that no documents exist with regard to Request No. 23. Id. at 4. Defendants also argue that the only issue they agreed to present to this Court is how the parties should understand the scope of “extreme vetting”-related discovery. Id. at 8-9. Because Plaintiffs have presented the alternative custodian/non-custodial issue to the Court, Defendants aver that there is a disagreement on the scope of this Rule 37 Joint Motion and therefore it is improperly before the Court. Id.

         The Court disagrees with Defendants. In its prior Order, the Court ordered the parties to discuss alternative custodians and non-custodial sources of information that link any kind of “extreme vetting” program to the Executive Orders. Dkt. # 98 at 5. Defendants now respond that they conferred internally regarding Request No. 23 only to discover that CARRP was not referenced or considered in the drafting and adoption of the two Executive Orders and therefore no discovery production is necessary, obviating the need to discuss alternative custodians or non-custodial sources. Dkt. # 103 at 3.

         To reach their conclusion, Defendants infer that they used a definition of “extreme vetting” that may differ from the one used by Plaintiffs, suggesting that the parties need to further meet and confer on the issue. Id. at 8-9. The Court does not accept this response, in part due to the targeted nature of Request No. 23, which seeks documents specifically related to CARRP. See Id. at 4 (Request No. 23 seeks documents “referring or relating to any consideration of or ...


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