United States District Court, W.D. Washington
HONORABLE RICHARD A. JONES UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants' emergency
motion for stay pending appellate review. Dkt. # 156.
Plaintiffs oppose the motion. Dkt. # 157.
the Court's orders, the Government maintains its refusal
to produce the class list to Plaintiffs. This dispute has
been pending since Plaintiffs' August 1, 2017 discovery
requests, in which Plaintiffs sought the class list. Dkt. ##
91, 92. Plaintiffs filed a motion to compel, and on October
19, 2017, the Court granted it in part, requiring the
Government to produce the class list. Dkt. # 98. On November
2, 2017, the Government moved for reconsideration, which the
Court denied. Dkt. ## 99, 102. But the Government did not
produce the class list.
February 8, 2018, Plaintiffs filed another motion to compel
the class list. Dkt. # 109. On February 13, 2018, the
Government agreed to produce “a copy of the list of
each potential class member by March 5, 2018, ” but
reserved the right to seek further relief if necessary. Dkt.
# 114. On February 14, 2018, the Court held a hearing
regarding the outstanding discovery issues. Dkt. # 115.
March 1, 2018, the Government moved for a protective order
with regard to producing the class list. Dkt. # 126. On March
5, 2018, the Government produced a redacted version of the
class list to Plaintiffs. Dkt. # 127 at 7. On April 11, 2018,
the Court denied the Government's motion for a protective
order to the extent that all names must be produced on the
basis of “attorney eyes only.” Dkt. # 148.
However, the Court offered the Government an alternative: the
Government could produce the class list under the current
stipulated protective order, or, it could make case-by-case
determinations with regard to names it refused to provide,
see Al Haramain Islamic Found., Inc. v. U.S. Dept. of
Treasury, 686 F.3d 965, 984 (9th Cir. 2012) and
Latif v. Holder, 28 F.Supp.3d 1134, 1162 (D. Or. 2014),
and produce such information under the “attorney eyes
only” provision that it requested. Id. Either
way, the Court required the Government to produce the class
list or the case-by-case determinations by April 25, 2018.
Id. The Government did not raise objections to this
Order until filing an emergency motion on April 20, 2018.
Dkt. # 156.
the instant motion is styled as an emergency motion to stay,
the Court finds it more appropriate to consider the motion as
one for reconsideration of its April 11, 2018 Order.
See Local Rules W.D. Wash. LCR 7(h). The Government
seeks reconsideration of the portion of the Court's Order
requiring the Government to produce the unredacted class list
or to produce case-by-case determinations of the individuals
for whom production would create a national security concern.
Dkt. # 156. However, the Government grossly misreads the
Court's Order as “creat[ing] a new harm.”
Dkt. # 156- 2 (Renaud Decl.) at ¶ 9. The Court did not
order the Government to produce the case-by-case information
unless it continued to refuse to produce the class list under
the current stipulated protective order-something that the
Court had ordered the Government to do months earlier. The
Government is under no obligation to produce this information
to Plaintiffs if it simply abides by the Court's prior
orders to produce the class list. Importantly, the issue
continues to be that the Government claims vague and
speculative national security threats when such general
statements are not sufficient. Hawaii v. Trump, 878
F.3d 662, 699 (9th Cir. 2017). “Everyone agrees that
the Government's interest in combating terrorism is an
urgent objective of the highest order.” Holder v.
Humanitarian Law Project, 561 U.S. 1, 28 (2010). Indeed,
“no governmental interest is more compelling than the
security of the Nation.” Haig v. Agee, 453
U.S. 280, 307 (1981). But national security “cannot be
used as a ‘talisman ... to ward off inconvenient
claims.'” Hawaii, 878 F.3d at 699.
appears that the parties and the Court will never move past
the endless cycle of motions to compel, motions to
reconsider, and the Government's ultimate refusal to
produce the compelled documents. The Court maintains that,
based on the record before it, wholesale production of the
class list under a more robust protective order is
unnecessary. At each junction, the Government has failed to
present facts or arguments that are meaningfully new or
different that could not have been previously raised with
regard to its general “national security threat”
arguments. The Government's opposition continues to be
rooted in its fundamental disagreement with the Court's
determinations. Such disagreement does not amount to manifest
error. LCR 7(h) (moving parties carry the burden to show
manifest error when seeking reconsideration of a prior
Court acknowledges that potential national security threats
may exist with regard to specific individuals on the class
list. Rather than provide case-by-case determinations to
Plaintiffs, the Court will give the Government an opportunity
to file a sampling of such determinations in camera
with the Court. The Court requires the Government to identify
the total number of potential class members to the Court. The
Court then requires a random sampling of these members with
explanations why their names may not be produced to
Plaintiffs. See, e.g., Latif, 28 F.Supp.3d
at 1162 (“Defendants must make such a determination on
a case-by-case basis including consideration of, at a
minimum, the factors outlined in Al Haramain; i.e.,
(1) the nature and extent of the classified information, (2)
the nature and extent of the threat to national security, and
(3) the possible avenues available to allow the Plaintiff to
respond more effectively to the charges.”). The Court
requests at least fifty records from this random sample. The
Government must file these case-by-case determinations with
the Court within seven (7) days from the date of this Order.
The Court will reserve ruling on this motion for
reconsideration pending review of the Government's
Court finds it appropriate to stay the April 25, 2018
deadline to produce the unredacted class list until the Court
has ruled on the motion for ...