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Karnoski v. Trump

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

November 19, 2019

RYAN KARNOSKI et al., Plaintiffs, and STATE OF WASHINGTON, Plaintiff-Intervenor,
v.
DONALD J TRUMP et al., Defendants.

          ORDER ON PLAINTIFF'S MOTION TO COMPEL DOCUMENTS WITHHELD UNDER THE DELIBERATIVE PROCESS PRIVILEGE

          MARSHA J. PECHMAN UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on Plaintiffs' Renewed Motion to Compel Documents Withheld Under the Deliberative Process Privilege. (Dkt. No. 364.) Having reviewed the Motion, the Response (Dkt. No. 380), the Reply (Dkt. No. 385), and all related papers, the Court GRANTS in part and DENIES in part Plaintiffs' Motion.

         Background

         I. Requested Discovery

         Plaintiffs allege that the creation and implementation of Defendants' ban on transgender military service (the “Ban”) is unconstitutional. (See Dkt. No. 347, Second Amended Complaint (“SAC”).) The Ban began with the July 26, 2017 Twitter announcement by President Donald J. Trump of a prohibition against military service by openly transgender people, which reversed the (former) Secretary of Defense Ashton Carter's Directive-type Memorandum 16-005 (the “Carter Policy”) providing that transgender people would be allowed to accede into the military not later than July 1, 2017. (Dkt. No. 144, Ex. C at 5; Dkt. No. 145 at ¶ 12; Dkt. No. 146 at ¶ 8.) The announcement of the Ban was followed by the “Mattis Plan”-then-Secretary of Defense James Mattis's strategy for implementing the President's new policy-and the President's March 23, 2018 Presidential Memorandum directing the Department of Defense (“DoD”) to implement the Ban. (Dkt. No. 224, Ex. 3.)

         Plaintiffs seek discovery to substantiate their allegations that the Ban was not animated by independent military judgment but was instead the product of impermissible discriminatory intent. (Dkt. No. 364 at 6.) To this end, Plaintiffs have served 68 Requests for Production, which seek, among other things, documents related to the Government's justifications for the Ban; communications and materials considered by the “Panel of Experts” (the “Panel”), and statistics and data regarding transgender military service. (Dkt. No. 364.) Defendants have produced documents without responding to individual Requests for Production, producing documents as stored in the ordinary course of business by creating and searching lists of terms and custodians-without input from Plaintiffs-and then reviewing the collections for privilege. (Dkt. No. 381, Ex. 1, Declaration of Robert E. Easton (“Easton Decl.”), ¶ 5.)

         II. Procedural History

         On July 27, 2019, this Court granted Plaintiffs' previous Motion to Compel Discovery Withheld Under the Deliberative Process Privilege. (Dkt. No. 245; Dkt. No. 299). In reaching its conclusion, the Court found that Plaintiffs' interest in the documents prevailed under the balancing test set forth in FTC v. Warner Commc'ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984), which weighs: “(1) the relevance of the evidence; (2) the availability of other evidence; (3) the government's role in the litigation; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.” Id.

         Defendants appealed, and on June 14, 2019 the Ninth Circuit issued a writ of mandamus, vacating this Court's Order. Karnoski v. Trump, 926 F.3d 1180 (9th Cir. 2019). The Ninth Circuit approved of the Court's reliance on Warner, 742 F.2d at 1161, and found that the second and third Warner factors-the availability of other evidence and the government's role in the litigation-favor Plaintiffs. Karnoski, 926 F.3d at 1206. Regarding the first and fourth Warner factors, however, the Ninth Circuit concluded that “the current record is insufficient to establish relevance” and the fourth factor in particular “deserves careful consideration, because the military's interest in full and frank communication about policymaking raises serious-although not insurmountable-national defense interests.” Id. The Ninth Circuit suggested that on remand this Court should “consider classes of documents separately when appropriate” and, “[i]f Defendants persuasively argue that a more granular analysis would be proper, [the Court] should undertake it.” Id.

         To date, Defendants have asserted the deliberative process privilege as a basis for withholding or redacting more than 50, 000 responsive documents, and as the sole basis for withholding or redacting approximately 35, 000 responsive documents. (Dkt. No. 364 at 6.) In the instant motion, Plaintiffs again seek to compel documents withheld under the deliberative process privilege, suggesting nine broad categories, meant to encompass the 68 Requests for Production, through which the Court can evaluate the withheld documents. (Dkt. No. 364 at 10-12; Dkt. No. 365, Exs. 1-3.)

         III. Doe Opinion

         On September 13, 2019, in a related case, Doe 2 v. Esper, No. CV 17-1597 (CKK), 2019 WL 4394842, at *8 (D.D.C. Sept. 13, 2019), the United States District Court for the District of Columbia concluded that the deliberative process privilege does not apply to documents that were used or considered in the development of the Mattis Plan. The Doe court found that “the deliberative process privilege should not be used to shield discovery into Defendants' decision-making process and intent when the extent and scope of that decision-making process is a central issue in this lawsuit.” Id. at *7. The court further found that the plaintiffs' need for the requested documents outweighed the deliberative process privilege, using a balancing test not unlike the one described in Warner, 742 F.2d at 1161. Id. at *8 (citing In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997)). Pursuant to the Doe court's ruling, Defendants will produce documents from three of the categories Plaintiffs seek to compel in this case: Panel Communications; Testimony, Documents, and Data the Panel Received; and Panel Deliberations and Decisions. (Dkt. No. 389 at 2 (citing Dkt. No. 364 at 7).)

         Discussion

         I. ...


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