“[W]e 21 are similarly without power to affect the dissemination of the unsealed documents’ 22 contents in any meaningful way” where “[f]ive prominent news organizations 23 published articles about the documents.”
How later courts described this case
- “[W]e 21 are similarly without power to affect the dissemination of the unsealed documents’ 22 contents in any meaningful way” where “[f]ive prominent news organizations 23 published articles about the documents.”
- “[H]owever confidential it may have been 25 beforehand, subsequent to publication it [i]s confidential no longer. . . . [A court] 26 simply do[es] not have the power . . . to make what has thus become public private 27 again.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 AL OTRO LADO, INC. et al., Case No.: 17CV2366-BAS(KSC)
12 Plaintiffs,
ORDER DENYING DEFENDANTS’
13 v. MOTION TO CLAW-BACK
DOCUMENTS [DOC. NO. 437] AND
14 CHAD F. WOLF, Acting Secretary, U.S.
GRANTING IN PART AND
Department of Homeland Security, in his
15 DENYING IN PART DEFENDANTS’
official capacity, et al.,
MOTION TO SEAL [DOC. NO. 435]
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Defendants.
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A Joint Motion for Determination of Discovery Dispute and companion Motion to
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Seal were filed on April 2, 2020. [Doc. Nos. 435 & 437.] In the discovery motion,
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defendants seek to claw-back nine documents that were produced during discovery which
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defendants contend are protected by the deliberative process privilege. [Doc. No. 437.]
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Defendants also move to seal portions of the discovery motion discussing these
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documents and Exhibit C. [Doc. No. 435.] Plaintiffs oppose defendants’ requests for
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claw-back and sealing of Exhibit C, but do not oppose the request to seal portions of the
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discovery motion in which the subject documents are discussed. [Doc. Nos. 435 & 437.]
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As explained below, the discovery motion is denied with respect to defendants’ request
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1 the subject documents be clawed-back based on their assertion of the deliberative process
2 privilege. The motion to seal is granted in part and denied in part.
3 DISCUSSION
4 A. Timeliness of Discovery Dispute
5 As a threshold issue, plaintiffs contend defendants failed to timely bring the
6 parties’ discovery dispute to the Court’s attention, pursuant to the undersigned’s
7 Chambers Rules, which require parties inform the Court of their discovery dispute within
8 30 days of the event giving rise to the dispute. [Doc. No. 437, pp. 7-8 of 171.] The issue
9 boils down to when the duty arose to inform the Court about defendants’ request to claw-
10 back the subject documents. Both sides agree that on January 30, 2020, defendants made
11 their claw-back request to plaintiff in a letter identifying 20 documents or portions
12 thereof, including the nine subject documents, for which various privileges were asserted,
13 including attorney-client, work-product, and deliberative process. [Doc. 437-1, para. 4;
14 437-3, para. 13.] Plaintiffs responded the next day by email, stating, in relevant part
15 “[f]or the reasons discussed in the letter that I sent you yesterday, the Government’s
16 deliberative process and law enforcement privilege claims are unsupported. Accordingly,
17 I am writing to inform you that pursuant to Section IV(G)(5)(b) of the Court’s ESI Order
18 (Dkt. 277), Plaintiffs will be challenging the privilege claim with respect to each of these
19 documents.” [Id., para. 6; Id., para. 14.] Defense counsel responded on February 4, 2020,
20 “[w]e are a little confused about the parameters of Plaintiffs’ challenge. The clawback
21 letter… includes assertions of privileges other than deliberative process and law
22 enforcement privilege. … Can you let us know by February 6 precisely which claims of
23 privilege Plaintiffs are challenging and the reason for the challenge, to aid in a productive
24 conference.” [Id., para. 7; Id., para 15.] On February 6, 2020, plaintiffs clarified “[w]e
25 challenge all of the invocations of the law enforcement privilege in the chart attached to
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1 All references to page numbers in Court filings, refer to the page numbers assigned by the Court’s ECF
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1 your email for the previously-stated reasons. We also challenge the invocations of the law
2 enforcement privilege with respect to email addresses of current and former employees
3 that could be produced on an outside-counsel-only basis.” [Id., para. 8; Id., para. 16.]
4 Defendants requested to meet and confer regarding their claw-back request on February
5 27, 2020, at which point they represented they interpreted the Court’s Chambers Rules to
6 mean defendants had from February 6 to March 9, 2020, to advise the Court of the
7 dispute. [Id., para. 10; Id., para. 17.] Counsel met and conferred on March 5 and
8 contacted the Court’s chambers regarding their dispute on March 9, 2020. [Doc. 437-3,
9 para. 18 & 19.]
10 By plaintiffs’ assessment, the parties’ dispute regarding claw-back of the subject
11 documents arose on January 31, 2020, when plaintiffs responded to the claw-back request
12 indicating they believe defendants’ deliberative process and law enforcement privilege
13 claims are unsupported. Under this analysis, defendants missed the deadline to bring the
14 matter to the Court’s attention by eight days. Defendants contend the triggering event did
15 not occur until plaintiffs clarified their position by email on February 6, and, therefore,
16 the discovery motion is timely.
17 The purpose of the requirement that counsel contact the Court within 30 days of a
18 discovery dispute arising is to promote diligence by the parties with the goal of ensuring
19 discovery disputes are resolved in a timely manner, whether by agreement of the parties
20 or through judicial intervention. Here, there is no indication that counsel for defendants
21 did not act diligently with respect to bringing this issue to the Court’s attention.
22 Defendants promptly requested clarification regarding the scope of plaintiffs’ objection to
23 the claw-back request and requested the parties meet and confer thereafter. While
24 defendants did not request to meet and confer until 21 days after receipt of the
25 clarification, they explain they did not try to meet and confer earlier because they
26 believed their 30 day deadline expired on March 9, and they had other litigation demands
27 in this case in February, including defendants’ opposition to plaintiffs’ motion for class
28 certification, a motion to strike anonymous and pseudonymous declarations, a reply brief
1 and motion to seal in the Ninth Circuit appeal, and the preparation of privilege logs.
2 [Doc. Nos. 437, p. 6, fn. 2; 437-1, para. 9.] Given the lack of clarity as to when the
3 parties’ dispute regarding claw-back of the subject documents arose, compounded with
4 the litigation demands on counsel at that time, and the obvious efforts by defense counsel
5 to diligently advance the parties’ dispute, the Court will not deny defendants’ efforts to
6 claw-back the subject documents based on untimeliness and, instead, turns to the merits
7 of the parties’ dispute.
8 B. Deliberative Process Privilege
9 The deliberative process privilege is a qualified privilege that applies to pre-
10 decisional, non-factual, non-public communications occurring within federal agencies.
11 See United States v. Irwin, 127 F.R.D. 169, 172 (C.D. Cal. 1989), citing generally In re
12 Franklin Natl Bank Sec. Litig., 478 F. Supp. 577, 580-81 (E.D.N.Y. 1979). It shields
13 from protection such communications relating to matters of law or policy, with the
14 purpose of protecting the quality of governmental decision-making by maintaining the
15 confidentiality of advisory opinions, recommendations, and deliberations that
16 compromise part of the process by which government formulates law or policy. See Natl
17 Wildlife Fed’n v. U.S. Forestry Serv., 861 F.2d 1114, 1116-17 (9th Cir. 1988). The
18 accepted rationale is that frank and open discussions within governmental agencies would
19 be “chilled” if the personal opinions and ideas of government personnel involved in the
20 decision-making process were subject to public scrutiny. Id.
21 The initial burden of establishing the applicability of the privilege is on the
22 government. Redland Soccer Club v. Dept. of Army of the U.S., 55 F.3d 827, 854 (3rd Cir.
23 1995); Mobil Oil Corp. v. Dept. of Energy, 520 F.Supp. 414, 416 (N.D.N.Y.1981). A
24 predecisional document is one that was “prepared in order to assist an agency
25 decisionmaker in arriving at his [or her] decision” and may include “recommendations,
26 draft documents, proposals, suggestions, and other subjective documents which reflect
27 the personal opinions of the writer rather than the policy of the agency.” Assembly of Cal.
28 v. U.S. Dep’t of Commerce, 968 F.2d 916, 920 (9th Cir. 1992). A document is
1 deliberative if it is “actually related to the process by which policies are formulated.”
2 Nat’l Wildlife Fed’n, 861 F.2d at 1117. Because the deliberative process privilege is “so
3 dependent upon the individual document and role it plays in the administrative process,”
4 the government must “establish what deliberative process is involved, and the role played
5 by the documents in issue in the course of that process.” Elec. Frontier Found.v. CIA,
6 2013 WL 5443048, at *12 (N.D. Cal. 2013). Blanket assertions of the privilege are
7 insufficient. Exxon Corp., 91 F.R.D. at 43. Rather, the agency must provide “precise and
8 certain” reasons for preserving the confidentiality of designated material. Mobil Oil, 520
9 F.Supp. at 416.
10 Even where the privilege is properly asserted, it is not absolute. The deliberative
11 process privilege is a qualified privilege, to be applied as narrowly as possible, consistent
12 with efficient administrative operations. See Coastal States Gas Corp. v. Dept. of Energy,
13 617 F.2d 854, 868 (D.C. Cir. 1980). The court must determine whether the need for the
14 evidence overrides the government's interest in non-disclosure. See F.T.C. v. Warner
15 Comm. Inc., 742 F.2d 1156, 1161 (9th Cir.1984). The policies supporting the privilege
16 must be balanced by strong competing interests, foremost of which is the interest of the
17 litigants, and ultimately of society, in accurate judicial fact finding. Franklin Natl Bank
18 Sec. Litig., 478 F. Supp. at 582. For example, the privilege may be inapplicable where
19 the agency's decision-making process is itself at issue. See Mr. and Mrs. “B” v. Board of
20 Ed. of Syosset Cent. Sch. Dist., 35 F.Supp.2d 224, 230 (E.D.N.Y.1998); Burka v. N.Y.C.
21 Transit Authority, 110 F.R.D. 660, 667 (S.D.N.Y.1986). Keeping these principals in
22 mind, the Court has reviewed in camera each of the subject documents.
23 Document No. 1: “Re: Haitian Migrants”
24 The portion of this email chain that is claimed to be protected by the deliberative
25 process privilege involves a communication from then-Deputy CBP Commissioner Kevin
26 McAleenan in which he expresses his opinion regarding an existing policy. Defendants
27 explain that senior CBP officials sometimes analyze past policy decisions when making
28 new ones. [Doc. 435-2, para. 9.] Defendants have not shown the content of his remark to
1 be either pre-decisional, meaning that it was made in order to assist an agency
2 decisionmaker in arriving at his or her decision. Nor have they explained what policy
3 decision was at issue or the role the communication played in the decision-making
4 process. Thus, it is not privileged.
5 Documents No. 2-6: “Re: C1 Migrant Processing Direction”
6 This set of documents includes email chains involving Kevin McAleenan and a
7 memorandum in which the substance of a non-final proposal regarding changes to
8 processing undocumented aliens at the San Ysidro Port of Entry is discussed and
9 recommendations are made. [Doc. No. 435-2, paras. 10-12.] These recommendations
10 were considered by senior decision-makers within CBP and DHS, but the proposal was
11 not implemented. [Id.] Because these communications are pre-decisional and deliberative
12 in nature, the Court must determine whether plaintiffs’ need for the evidence overrides
13 the government's interest in non-disclosure. See F.T.C., 742 F.2d at 1161.
14 A key issue in this case is the validity of defendants’ stated justification for
15 metering – operational capacity constraints. [Doc. No. 280, p. 60.] The question
16 presented is whether defendants’ Turnback Policy is the result of “legitimate factors that
17 prevent CBP officers from immediately discharging the mandatory duties set forth in 8
18 U.S.C. 1158(a)(1) and 8 U.S.C. 1225,” or whether those “asserted concerns over capacity
19 are merely a pretext to avoid discharging the duties set forth in 8 U.S.C. 1158 (a)(1) and 8
20 U.S.C. 1225 and deter asylum seekers from seeking asylum in the U.S.” [Id.] On this
21 point, defendants have offered testimony in this case that their motivation for metering at
22 the southern borders is due to capacity constraints at ports of entry, including specifically
23 the San Ysidro Port of Entry. [Doc. No. 437-4, p. 5.] The memorandum and portions of
24 the email chains for which defendants assert the deliberative process privilege relate
25 directly to defendants’ motivation in implementing the Turnback Policy. As such,
26 plaintiffs’ need for unredacted copies of Documents 2 through 6 outweighs defendants’
27 interest in non-disclosure, particularly where the information is subject to a Protective
28 Order restricting the scope of its disclosure, as is the case here.
1 Documents 7-9: “Point of Entry Briefing”
2 These documents consist of three email strings between CBP and DHS personnel
3 regarding potential future agency actions and potential changes to agency policy. [Doc.
4 No. 435-2, paras. 4-7.] The emails were generated as a result of a request for a meeting
5 to discuss potential changes to CBP’s queue management policies and practices with the
6 DHS Deputy Secretary, however, there is no indication the substance of these emails was
7 considered by CBP decisionmakers. [Id.] Additionally, defendants have not shown the
8 communications were made in order to assist an agency decisionmaker in arriving at his
9 or her decision or otherwise explained what role the communications played in the
10 decision-making process. Thus, these email strings are not privileged.
11 C. Motion to Seal
12 Defendants also move to seal portions of the discovery motion specifically
13 discussing the documents that are at issue, as well as the sealing of the discovery
14 motion’s Exhibit C. [Doc. No. 435.]
15 “[T]he courts of this country recognize a general right to inspect and copy
16 public records and documents, including judicial records and documents.” Nixon v.
17 Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is
18 one ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the
19 starting point.” Kamakana v. City & Cty. of Honolulu,447 F.3d 1172, 1178 (9th Cir.
20 2006) (citing Foltz v. State Farm Mut. Auto Ins. Co.,331 F.3d 1122, 1135 (9th Cir.
21 2003)). “The presumption of access is ‘based on the need for federal courts, although
22 independent—indeed, particularly because they are independent—to have a measure of
23 accountability and for the public to have confidence in the administration of
24 justice.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016)
25 (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)). A party seeking
26 to seal a judicial record bears the burden of overcoming the strong presumption of
27 access. Foltz, 331 F.3d at 1135.
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1 The standard applicable to a motion to seal turns on whether the sealed materials
2 are submitted in conjunction with a dispositive or non-dispositive motion. Whether a
3 motion is “dispositive” turns on whether the documents to be sealed relate to a motion
4 that is “more than tangentially related to the merits of the case.” Ctr. for Auto Safety, 809
5 F.3d at 1102. When the underlying motion is more than tangentially related to the merits,
6 the “compelling reasons” standard applies. Id. at 1096–98. Parties seeking to maintain
7 confidentiality of documents attached to non-dispositive motions, such and the discovery
8 motion pending here, must make a “particularized showing” of “good cause.” Kamakana,
9 447 F.3d at 1180 (quoting Foltz, 331 F.3d at 1137).
10 Request to Seal Portions of the Discovery Motion
11 Defendants request the Court allow the sealing of portions of the discovery motion
12 that quote or address the documents at issue on the basis of the deliberative process
13 privilege. [Doc. No. 435, p. 3.] Additionally, they contend the cited portions of these
14 documents contain sensitive law-enforcement and other information that could harm the
15 operations of CBP and other governmental entities if disclosed. [Id., at 3-4; Doc. No.
16 435-3.]
17 As discussed, supra, Document Nos. 2-6 are deliberative process privileged
18 documents. The Court has denied defendants’ claw-back request for these documents
19 because plaintiffs’ need for this discovery outweighs the government’s interest in
20 nondisclosure. The Court’s finding these are privileged documents, however, is good
21 cause to seal the portions of the discovery motion discussing or quoting from these
22 documents. [Doc. No. 436, p. 12, lns. 9-10; p. 13, lns. 10-1; p. 14, lns. 9-11.]
23 The only documents discussed in the remainder of the discovery motion are
24 Document Nos. 1 and 7. While neither of these documents are protected by the
25 deliberative process privilege, the defendants’ representations that these documents
26 contain confidential and sensitive law-enforcement and other information that could harm
27 the operations of CBP and other governmental entities if disclosed provides good cause
28 for the sealing of the portions of the discovery motion discussing these two documents.
1 Exhibit C – the Leutert Report
2 Defendants also seek to seal Exhibit C, the Leutert Report, which they contend
3 references and discusses information defendants have designated as confidential and
4 which is the subject of two others motions to seal that are currently pending before
5 District Judge Bashant. [Doc. No. 435, p. 4.]
6 This document, however, is already available to the public. On February 24, 2020,
7 the Ninth Circuit denied a motion filed by defendants seeking to re-seal certain
8 exhibits attached to the Opposition to Motion for Stay Pending Appeal that were
9 inadvertently left unsealed after the 21-day provisional seal expired. See Al Otro Lado, et
10 al. v. Chad F. Wolf, et al., Case No. 19-56417 (9th Cir. Dec. 5. 2019), Doc. No. 82. The
11 Leutert Report was one of the documents that was the subject of the Ninth Circuit’s
12 decision. Defendants now argue it should be sealed in connection with the discovery
13 motion because “any additional publication of this document may cause additional harm
14 to Defendants’ operations by making the report more available to potential bad actors.”
15 [Doc. No. 435, p. 4.] The Court disagrees and denies defendants’ motion to seal
16 Exhibit C for the same reasons stated by the Ninth Circuit regarding the Motion to Re-
17 Seal. The information is publicly available on the Ninth Circuit docket, which generally
18 moots any later attempt to seal the documents from public view. See Kamakana, 447
19 F.3d at 1184 (affirming an unsealing order because the information at issue was “already
20 publicly available”); Constand v. Cosby, 833 F.3d 405, 410 (3d Cir. 2016) (“[W]e
21 are similarly without power to affect the dissemination of the unsealed documents’
22 contents in any meaningful way” where “[f]ive prominent news organizations
23 published articles about the documents.”); Gambale v. Deutsche Bank AG, 377
24 F.3d 133, 144 (2d Cir. 2004) (“[H]owever confidential it may have been
25 beforehand, subsequent to publication it [i]s confidential no longer. . . . [A court]
26 simply do[es] not have the power . . . to make what has thus become public private
27 again.”).
28 / /
1 CONCLUSION
2 Based on the foregoing, defendants’ motion to claw-back the nine subject
3 ||documents is DENIED. Defendants’ motion to seal is GRANTED IN PART and
4 || DENIED IN PART. The Clerk of the Court is directed to file the Joint Motion for
5 || Determination of Discovery Dispute Concerning Defendants’ January 30 Clawback
6 || Notice (Doc. No. 436, but not Doc. No. 436-1) under seal. Defendants shall resubmit
7 || Exhibit C to the Joint Motion (the Leutert Report) for filing.
8 IT IS SO ORDERED.
9 || Dated: April 30, 2020 Jie. La,
ll Hori. Karen 8S. Crawford
United States Magistrate Judge
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