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Wagafe v. Trump

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

January 16, 2020

ABDIQAFAR WAGAFE, et al., on behalf of themselves and others similarly situated, Plaintiffs,
v.
DONALD TRUMP, President of the United States; et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL

          THE HONORABLE RICHARD A. JONES UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         The 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 at 5.

         Plaintiffs 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.

         II. LEGAL STANDARD

         The 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. 26(b)(1).

         If a 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).

         III. DISCUSSION

         Plaintiffs 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.

         Plaintiffs 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.[1] 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 investigations).”).

         A. Law Enforcement Privilege

         Turning 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).

         The 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 ...


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