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Wagafe v. Trump

United States District Court, W.D. Washington, Seattle

April 11, 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

          HONORABLE RICHARD A. JONES UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiffs' Motions to Compel (Dkt. ## 109, 111) and on Defendants' Motion for Protective Order (Dkt. # 126). For the following reasons, the Court grants in part and denies in part the motions.

         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. In addition, the Government requests that certain information be subject to a limited and more robust protective order.

         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).

         If a party refuses to respond to discovery, the requesting party “may move for an order compelling disclosure or discovery.” Fed.R.Civ.P. 37(a)(1). “The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” Cable & Computer Tech., Inc. v. Lockheed Saunders, Inc., 175 F.R.D. 646, 650 (C.D. Cal. 1997).

         III. DISCUSSION

         A. Law Enforcement Privilege

         The Government has claimed that the law enforcement privilege protects its documents for quite some time. See, e.g., Dkt. ## 94 at 7-8, 94-5 at ¶ 7. The Court addressed the issue and required the Government to produce privilege logs if it wished to withhold documents based upon the privilege. The Government created privilege logs and claimed the law enforcement privilege. See, e.g., Dkt. # 110. The Government now argues that it need not satisfy the requirements of this specific privilege unless it “formally invoke[s]” the same. Dkt. # 119 at 8. This argument-that the Government may somehow claim the privilege without actually claiming it-defies logic. The Government's actions and discovery tactics-including, for example, unjustified delays and the questionable timing of affidavits-thus far have been nothing less than obstructionist; such behavior is inappropriate and will not be tolerated.

         To claim this privilege, the Government must satisfy three requirements: (1) there must be a formal claim of privilege by the head of the department having control over the requested information; (2) assertion of the privilege must be based on actual personal consideration by that official; and (3) the information for which the privilege is claimed must be specified, with an explanation why it properly falls within the scope of the privilege. In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). This privilege is qualified: “[t]he public interest in nondisclosure must be balanced against the need of a particular litigant for access to the privileged information.” Id. at 272.

         The Government did not properly claim this privilege because it refused to abide by the first and second prongs; that is, a department head did not claim the privilege and therefore did not assert such privilege based on actual personal consideration. This is notable considering the Government cited the privilege at least as early as October 2017 and included a declaration from the agency head, Mr. Emrich, though not in support of the privilege. Dkt. ## 94, 94-8. The Government now offers an affidavit of this same agency head-more than four months later-to invoke the law enforcement privilege. See Dkt. # 119-2. Tactics like this do nothing more than delay and frustrate the fundamental concept of discovery.

         In his new affidavit, Mr. Emrich describes categories of withheld information and the law enforcement interest in keeping the information withheld. Id. The compelling portions of the affidavit relate to any documents “for applicants whom adjudicators have determined pose a national security or public risk, ” and the processes and checks utilized to assess such applicants and related risks. See, e.g., id. at ¶ 21. Mr. Emrich states that disclosure of this information “could provide aliens with a roadmap into the techniques USCIS uses to uncover information that an individual may wish to hide, and the techniques used to elicit information.” Id. But this type of information-the specific process in which USCIS discovers a national security risk and the subsequent investigation-is distinguishable from documents that “relate primarily to immigration benefits processing, not law enforcement in the traditional sense[.]” Am. Civil Liberties Union of S. California v. United States Citizenship & Immigration Servs., 133 F.Supp.3d 234, 245 (D.D.C. 2015).

         Because this is an important distinction, and because the Court must view USCIS's withholding with more skepticism than it might with a different agency, see id., the Court requires the Government's privilege log to reflect such precise distinctions. This is to ensure that the Government's blanket affidavit is not being used in an unbridled sense; the Government must specifically identify the documents that fall within this privilege. The Government's privilege log is insufficient in this regard. For example, most if not all of the Government's law enforcement privilege descriptions relate only to “procedures on the adjudication of an immigrant benefit application” as they pertain to the “applicant's eligibility for the immigration benefit.” See, e.g., Dkt. # 11- at 11. There is no law enforcement concern here; the Government's vague concern is that an applicant may learn how eligibility was decided and this may somehow “risk circumvention or evasion of the law.” Id. This description-repeated throughout the log-relates primarily to immigration benefits processing and not to Mr. Emrich's contention that the individual document is related to law enforcement or national security concerns. Though the Court accepts Mr. Emrich's affidavit to claim the privilege, generally[1], the Court requires the Government to use the privilege deliberately and will expect the Government to be exacting with which documents fall within this privilege, stating its reasons for withholding clearly in the privilege logs. Am. Civil Liberties Union ...


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