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.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS' MOTION TO COMPEL
HONORABLE RICHARD A. JONES UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiffs' motion to
compel documents withheld under the law enforcement and
deliberative process privileges (Dkt. # 260). For the reasons
stated below, Plaintiffs' motion is GRANTED in
part and DENIED in part.
facts underlying this lawsuit have been detailed in several
previous orders, and the Court assumes familiarity with them.
Of particular relevance to this dispute is this Court's
order on April 11, 2018. Dkt. # 148. There, the Court held
that the Government had failed to properly invoke the law
enforcement privilege and ordered it to produce revised
privilege logs, detailing the basis for this privilege. Dkt.
# 148 at 4-5. Following the Court's order, the parties
continued to meet and confer regarding the Government's
assertion of the law enforcement privilege. Of the many
documents that the Government has withheld or redacted under
the law enforcement privilege, Plaintiffs have identified 38
that they believe to contain relevant information. Dkt. # 260
at 5. Defendants agreed to review and reproduce the 38
documents with fewer or no redactions. On December 5, 2018,
Defendants reproduced the 38 requested documents. Dkt. # 260
allege that many of the documents still contain redactions in
areas purportedly relevant to Plaintiffs' claims and now
move to compel the production of 25 documents without
redactions. Id. On October 24, 2019, the Court held
a telephone conference and ordered the Government to submit
the 25 documents, unredacted, for the Court's in
camera review. Dkt. # 297.
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).
seek, and the Government refuses to provide, 25 documents
containing law enforcement and deliberative process privilege
redactions. As a threshold matter, Plaintiffs take issue with
the Government's privilege logs, claiming that they do
not “adequately describe and justify why the privileges
apply” to the documents. Dkt. # 269 at 3 (noting the
Government takes issue with Plaintiffs seeking to compel
password formatting instructions, but the privilege logs do
not mention password formatting instructions). The
Government's privilege logs are sufficiently detailed.
Rule 26(b)(5) requires the party withholding privilege
information to “describe the nature of the documents,
communications, or tangible things not produced or disclosed
. . . in a manner that, without revealing information itself
privileged or protected, will enable other parties to assess
the claim.” Fed.R.Civ.P. 26(b)(5). Given the volume of
documents at issue in this case, the Government cannot be
expected to provide an individual explanation for every page
containing a redaction or assertion of privilege.
also object to assertion of the third-party law enforcement
privilege on behalf of several other law enforcement agencies
because the privilege was not raised in the Government's
privilege logs or any of the initial affidavits. Dkt. # 269
at 2. The Government offers no explanation for its failure to
raise these additional privilege claims in a timely manner
and the Court is inclined to find that the privilege was
waived because of this needless delay. However, given the
circumstances of this case and the nature of the privilege
the Court declines to find a waiver based on this
record. See Singh v. S. Asian Soc'y of
George Washington Univ., No. CIV A 06-574 RMC, 2007 WL
1556669, at *2 (D.D.C. May 24, 2007) (declining to find
waiver of law enforcement privilege “[g]iven the
importance of the values that the privilege is designed to
protect (i.e., the effective functioning of law enforcement
Law Enforcement Privilege
to the merits of the Government's privilege claim, the
parties agree that three requirements must be met in order to
establish the law enforcement privilege: (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).
parties do not dispute that the Government has satisfied the
first two requirements to assert the privilege. See
Dkt. # 266-1, Exs. A, D, E, F. In assessing whether the
Government has demonstrated the final requirement-i.e., that
the information properly falls within the scope of the
privilege-the Court must “weigh the public interest in
nondisclosure against the [requesting party's] need for
access to the privileged ...