United States District Court, W.D. Washington, Seattle
ABDIQAFAR WAGAFE, et al., on behalf of themselves and others similarly situated, Plaintiffs,
DONALD TRUMP, President of the United States, et al., Defendants.
HONORABLE RICHARD A. JONES UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiffs' Motions to
Compel (Dkt. # 221) and on Defendants' Cross-Motion for
Protective Order (Dkt. # 226). For the following reasons, the
Court GRANTS IN PART AND DENIES in part the
procedural history of this case has been recounted a number
of times in prior orders, and the Court will not belabor to
repeat it in detail. Of particular relevance to this dispute
is this Court's Order on October 19, 2017. Dkt. # 98. In
that Order, this Court granted Plaintiffs' previous
motion to compel (Dkt. # 91), and ordered Defendants to
produce information showing the reasons “why the Named
Plaintiffs were subjected to CARRP.” Id. at 4.
This Court held that “this information is relevant to
the claims and Plaintiffs' needs outweigh the
Government's reasons for withholding.” Id.
Defendants moved for an emergency stay pending appellate
review, which this Court interpreted as a motion for
reconsideration. Dkt. ## 156, 183. In what this Court
determined a “close call, ” it granted Defendants
motion, allowing Defendants to produce a class list with a
limited protective order sharply limiting access to the list.
Dkt. # 183.
parties proceeded to engage in additional discovery and again
have disputed the extent to which Defendants must produce the
“why” information. The parties have attempted to
resolve their discovery disputes without court intervention
but have again reached an impasse. Plaintiffs now move the
Court again to compel the Government to produce certain
discovery related to the “why”
information-information relating to why the named Plaintiffs
were subject to CARRP. Dkt. # 221. Plaintiffs also request
Court approval of a Public Notice to unnamed class members,
and to compel the Government to produce a random sample of
100 A Files of unnamed class members. Id. The
Government opposes, and also requests that certain
information be subject to a limited and more robust
protective order. Dkt. # 226.
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.
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).
“Why” Information The Government has
claimed that the law enforcement privilege protects its
documents for quite some time. 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.
initial matter, whether or not the Named Plaintiffs were
subject to CARRP does not appear, based on the record, to be
information properly withheld under the law enforcement
privilege. As Plaintiffs note, determination of whether
Plaintiffs' applications were subject to CARRP has
already been disclosed either through FOIA requests or
disclosures by Defendants. See generally Dkt. # 243.
the production of the “why” information, the
Court has already ruled that such information must be
disclosed, and the Court does not intend to reverse that
decision without a compelling reason to do so. In its
previous Order, the Court rejected Defendants' vague
descriptions of the harm of disclosure of USCIS'
procedures regarding immigration benefits processing. Dkt. #
98. Defendants' arguments here as for why USCIS should
not be forced to produce any “why” information
largely mirror these previously considered arguments, and the
Court sees little reason to deviate from this approach based
on the current submissions. See id. Defendants have
already produced a number of documents that provide details
about the procedures USCIS uses to determine whether an
application will initially be subject to CARRP or not, and
Defendants' submissions do not provide the Court with a
basis to distinguish this information from that redacted
under the law enforcement privilege. Although it is true that
some functions of the USCIS relate to law enforcement and
some of the withheld information may properly be subject to
that privilege, the mixed-function nature of the agency means
that the Court must analyze these privilege claim “with
some skepticism.” Am. Civil Liberties Union of S.
California v. United States Citizenship & Immigration
Servs., 133 F.Supp.3d 234, 245 (D.D.C. 2015).
Defendants' generalized descriptions of the internal
USCIS information contained within the A Files, and the
resulting harm of disclosure, are insufficient at this point
to overcome this skepticism.
have, however, provided the Court with a number of
Declarations from departmental heads from other law
enforcement agencies, such as the FBI, CBP, and TSA, or
information contained in TECS records. See, e.g.,
Dkt. # 86, Exs. B-F. The Court is persuaded by
Defendants' submissions, including those submitted ex
parte and in camera, that disclosure of certain
information and methods originating from law enforcement
agencies external to USCIS immigration processing, such as
the FBI or CBP, could cause harm to national security. These
agencies are not defendants in this case, and their internal
processes are not at issue. Moreover, disclosing details of
past or current investigations by these third-party law
enforcement agencies would not, in this Court's view,
offer much insight into the alleged internal misuse of CARRP
by USCIS, and the harm of disclosure would outweigh the value
of this information.
leaves the Court in a difficult position. Plaintiffs'
theory in this case is that USCIS is improperly subjecting
applications to CARRP; thus, evidence about whether such an
improper application has occurred would be highly relevant.
If Plaintiffs' applications were so subjected to CARRP
for reasons purely internal to USCIS or only related to the
processing of immigration benefits, this information would be
highly relevant to Plaintiffs' claims, and may only be
contained in the A Files. As Defendants note, the application
of CARRP involves both “internal and external
vetting” procedures. Dkt. # 226-1 at 21. The Court
believes the “internal” vetting procedures used
by USCIS to be most relevant for the current dispute, and the
Court at this point sees little justification for withholding
this information based on the law enforcement privilege.
However, if ...