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Karnoski v. Trump

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

July 27, 2018

RYAN KARNOSKI, et al., Plaintiffs,
v.
DONALD J. TRUMP, et al., Defendants.

          ORDER GRANTING MOTION TO COMPEL; DENYING MOTION FOR PROTECTIVE ORDER

          MARSHA J. PECHMAN UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Plaintiffs' Motion to Compel Defendants' Discovery Withheld Under the Deliberative Process Privilege (Dkt. No. 245) and Defendants' Motion for Protective Order (Dkt. No. 268). Having reviewed the Motions, the Responses (Dkt. Nos. 266, 278), the Replies (Dkt. Nos. 273, 281), the Supplemental Briefs (Dkt. Nos. 289, 292, 293) and the related record, and having considered the submissions of the parties at oral argument, the Court GRANTS Plaintiffs' Motion to Compel and DENIES Defendants' Motion for Protective Order.

         Background

         I. Procedural History

         On July 26, 2017, President Donald J. Trump announced a ban on military service by openly transgender people (the “Ban”). On March 23, 2018, following the Court's entry of a preliminary injunction, the President issued a Presidential Memorandum (the “2018 Memorandum”) directing the Department of Defense (“DoD”) to implement the Ban. (Dkt. No. 224, Ex. 3.) That same day, Defendants moved to dissolve the preliminary injunction. (Dkt. No. 215.) On March 29, 2018, Defendants requested to preclude discovery pending resolution of their motion to dissolve the preliminary injunction. (Dkt. No. 225.) The Court denied that request and ordered discovery in the case to proceed. (Dkt. No. 235.) The Court explained:

To the extent that Defendants intend to claim executive privilege, they must “expressly make the claim” and provide a privilege log “describ[ing] the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”

(Id. at 3 (quoting Fed.R.Civ.P. 26(b)(5)(i)-(ii)).)

         On April 13, 2018, the Court ordered the preliminary injunction to remain in effect and granted partial summary judgment against the Ban. (See Dkt. No. 233.) The Court held that the Ban would be subject to strict scrutiny, but declined to rule on its constitutional adequacy. (Id.) The Court observed that “[w]hether Defendants have satisfied their burden of showing that the Ban is constitutionally adequate (i.e., that it was sincerely motivated by compelling state interests, rather than by prejudice or stereotype) necessarily turns on facts related to Defendants' deliberative process.” (Id. at 28.) Because those facts were not yet before it, the Court directed the parties “to proceed with discovery and prepare for trial on the issues of whether, and to what extent, deference is owed to the Ban and whether the Ban violates equal protection, substantive due process, and the First Amendment.” (Id. at 31.) Defendants filed a notice of appeal and requested that the Ninth Circuit stay the preliminary injunction pending its review. (Dkt. No. 236); see also Karnoski v. Trump, No. 18-35347, Dkt. No. 3 (9th Cir. May 4, 2018). On July 18, 2018, the Ninth Circuit denied the request, holding that “a stay of the preliminary injunction would upend, rather than preserve, the status quo.” (Dkt. No. 295.) The appeal is set to be heard in October 2018. (Dkt. No. 296.)

         II. The Requested Discovery

         Throughout this litigation, Plaintiffs have sought discovery regarding:

• The identity of the individuals with whom President Trump discussed or corresponded regarding policies on military service by transgender people;
• The date on which President Trump decided that transgender people should be banned from military service;
• The process by which President Trump formulated the Ban, including identification of “all sources of fact or opinion” he “consulted, considered, or otherwise referred to” in formulating the Ban;
• Documents and communications related to President Trump's consultation with employees, agents, contractors, or consultants of the United States Armed Forces regarding military service by transgender people;
• Documents and communications relating to, and including all drafts of, the 2017 Memorandum;
• Communications between President Trump and Congress concerning military service by transgender people prior to August 26, 2017; and
• Documents relating to visits and communications between President Trump and his ...

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