United States District Court, W.D. Washington, Seattle
RYAN KARNOSKI et al., Plaintiffs, and STATE OF WASHINGTON, Plaintiff-Intervenor,
DONALD J TRUMP et al., Defendants.
ORDER ON PLAINTIFF'S MOTION TO COMPEL DOCUMENTS
WITHHELD UNDER THE DELIBERATIVE PROCESS PRIVILEGE
J. PECHMAN UNITED STATES DISTRICT JUDGE.
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.
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.)
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.)
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
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.”
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.)
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).)