The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA
10
Al Otro Lado, Inc., et al., Case No. 17-cv-02366-BAS-KSC
11
Plaintiffs, ORDER:
12
v.
(1) OVERRULING DEFENDANTS’
13 OBJECTIONS TO THE
Chad F. Wolf, et al.,
MAGISTRATE JUDGE’S
14 DISCOVERY ORDER (ECF No. 456);
Defendants.
15 AND
16 (2) GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
17 UNOPPOSED MOTION TO SEAL
(ECF No. 458)
18
19 Before the Court is Defendants challenge Magistrate Judge Crawford’s discovery
20 order under Rule 72(a) of the Federal Rules of Civil Procedure. (Order Denying Defs.’
21 Mot. to Claw-Back Documents (“Discovery Order”), ECF No. 446; Defs.’ Notice of Mot.
22 to Object (“Objections” or “Obj.”), ECF No. 456.) Plaintiffs respond, and Defendants
23 reply. (Opp’n, ECF No. 460; Reply, ECF No. 464.) For the reasons stated below, the
24 Court OVERRULES the Objections and adopts the Magistrate Judge’s Discovery Order
25 with respect to privilege. Additionally, the Court GRANTS IN PART and DENIES IN
26 PART Plaintiffs’ Motion to Seal. (ECF No. 458.)
27
28
1 I. BACKGROUND
2 At issue in this case are Documents 2–9, submitted to the Court in camera for
3 review, and whether these documents are subject to the deliberative process privilege.
4 Documents 2–3 and 5–6 consist of email chains between officials of the Department
5 of Homeland Security (“HSI”) and U.S. Customs and Border Protection (“CBP”)
6 discussing plans to process an influx of border crossers and outlining the San Ysidro Port
7 of Entry’s capacity capabilities. Document 4 is an Operation Order dated November 2018
8 again detailing plans for dealing with an increase in border crossers including current and
9 anticipated processing capabilities and capacity for asylum seekers. Magistrate Judge
10 Crawford found that although these documents are subject to the deliberative process
11 privilege, Plaintiffs’ need for unredacted copies of the documents outweighs Defendants’
12 interest in non-disclosure. (Discovery Order at 6.)
13 With respect to Documents 7–9, these are email chains between officials at HSI and
14 CBP discussing the purpose of an upcoming meeting/briefing. The Magistrate Judge
15 found these documents were not subject to the deliberative process privilege because
16 there is no indication the substance of [these three documents] was considered
by CBP decision makers. Additionally, Defendants have not shown the
17 communications were made in order to assist an agency decision maker in
arriving and his or her decision or otherwise explained what role the
18 communications played in the decision-making process.
19 (Id. at 7.)
20 This Court agrees with both of those conclusions.
21 II. LEGAL STANDARD
22 Rule 72(a) of the Federal Rules of Civil Procedure allows a district judge to refer
23 any non-dispositive motion to a Magistrate Judge for determination. “[T]he magistrate’s
24 decision on a non-dispositive issue will be reviewed by the district judge under the clearly
25 erroneous standard.” Bhan v. NME Hospitals, Inc., 929 F.2d 1404, 1414 (9th Cir. 1991)
26 (citing United States v. Raddatz, 447 U.S. 667, 673 (1980)). “A finding of fact is clearly
27 erroneous if [the court has] a definite and firm conviction that a mistake has been
28 committed.” Burdick v. Comm’s Internal Revenue Serv., 979 F.2d 1369, 1370 (9th Cir.
1 1992) (citing Dollar Rent-a-Car, Inc. v. Travelers Indem. Co., 774 F.2d 1371, 1374 (9th
2 Cir. 1985)). “‘[T]he magistrate’s legal conclusions are reviewed de novo to determine
3 whether they are contrary to law.’” U.S. Equal Employment Opportunity Comm. v.
4 Chipotle Mexican Grill, Inc., No. 17-cv-05382-BLF, 2019 WL 3811890, at *2 (N.D. Cal.
5 Aug. 1, 2019) (quoting Perry v. Schwarzenegger, 268 F.R.D. 344, 348 (N.D. Cal. 2010)).
6 The party asserting a privilege has the burden of establishing the application of that
7 privilege. North Pacific, LLC v. City of Pacifica, 274 F. Supp. 2d 1118, 1122 (N.D. Cal.
8 2003). In the case of the deliberative process privilege, asserted here, the “privilege should
9 be ‘strictly confined within the narrowest possible limits consistent with the logic of its
10 principles.’” Id. (quoting Sanchez v. Johnson, No. C-00-1593 CW (JCS), 2001 WL
11 1870308, at *6 (N.D. Cal. Nov. 19, 2001)).
12 III. ANALYSIS
13 A. Documents 7–9
14 The Magistrate Judge found Documents 7–9 were not subject to the “deliberative
15 process” privilege. Defendants argue this decision was erroneous.
16 The deliberative process privilege shields from discovery those documents that are
17 related to the process by which policies are formulated. U.S. v. Fernandez, 231 F.3d 1240,
18 1246 (9th Cir. 2000). “By shielding such documents from discovery, the deliberative
19 process privilege encourages forthright and candid discussion of ideas and, therefore,
20 improves the decision-making process.” Id. (citing Assembly of the State of Calif. v. U.S.
21 Dept of Commerce, 968 F.2d 916, 920 (9th Cir. 1992) (holding that the purpose of the
22 deliberative process privilege is “to allow agencies freely to explore possibilities, engage
23 in internal debates or play devil’s advocate without fear of public scrutiny.”)). “Thus, the
24 privilege covers ‘documents reflecting advisory opinions, recommendations and
25 deliberations comprising part of a process by which governmental decisions and policies
26 are formulated.’” Carter v. U.S. Dept. of Commerce, 307 F.3d 1084, 1089 (9th Cir. 2002)
27 (quoting Dep’t of Interior v. Klamath Water Users Protective Assoc., 532 U.S. 1, 8
28 (2001)). Documents subject to the deliberative process privilege are those made “‘in order
1 to assist an agency decisionmaker in arriving at his decision,’ and may include . . .
2 subjective documents which reflect the personal opinions of the writer rather than the
3 policy of the agency.” Carter, 307 F.3d at 1089 (quoting Assembly, 968 F.2d at 920).
4 Although the two factors tend to overlap, “[i]n order to be protected by the
5 deliberative process privilege, a document must be both ‘predecisional’ . . . and . . .
6 ‘deliberative.’” Fernandez, 231 F.3d at 1246. A document is “predecisional” if it is
7 “‘prepared in order to assist an agency decisionmaker in arriving at his decision.’” Carter,
8 307 F.3d at 1089 (quoting Assembly, 968 F.2d at 920). “Material which predates a
9 decision chronologically, but did not contribute to that decision, is not predecisional in
10 any meaningful sense.” Id.
11 The document is “deliberative” if is actually “related to the process by which
12 policies are formulated.” National Wildlife Fed. V. U.S. Forest Service, 861 F.2d 1114,
13 1117 (9th Cir. 1988). “‘[T]he key question [when determining if a document is
14 deliberative] . . . is whether the disclosure of materials would expose an agency’s decision-
15 making process in such a way as to discourage candid discussion within the agency and
16 thereby undermine the agency’s ability to perform its functions.’” Carter, 307 F.3d at
17 1089 (quoting Assembly, 968 F.2d at 920). Thus, documents “‘are privileged to the extent
18 that they reveal the mental processes of decision-makers.’” Id.
19 In this case, the Magistrate Judge found that while the emails contained in
20 Documents 7–9 concern “potential future agency actions and potential changes to agency
21 policy[,]” there was “no indication” that they were considered by CBP decisionmakers,
22 “assist[ed] an agency decisionmaker in arriving at his or her decision[,]” or “otherwise
23 explained what role the communications played in the decision-making process.”
24 (Discovery Order at 7.)
25 Defendants do not argue that the Magistrate Judge applied the wrong legal standard
26 or misinterpreted the law with respect to the deliberative process privilege. Instead, they
27 argue her factual conclusion that these email strings were not made to assist the agency
28
1 decisionmaker in arriving at a decision is incorrect. Thus, this Court reviews the
2 Magistrate Judge’s factual findings for clear error.
3 After reviewing Documents 7–9, the Court agrees that the documents are not subject
4 to the deliberative process privilege. All three consist of a string of emails, many of which
5 are duplicative, sent between July 31 and August 7, 2018, setting up a meeting and
6 outlining what will be discussed at the meeting with respect to queue management. None
7 of the emails involve the discussion of ideas, internal debates, explore various possibilities,
8 or offer subjective opinions about policy. They are primarily concerned with what
9 documents will be needed for the meeting and what is likely to be discussed at the meeting.
10 Therefore, the Court concludes the Magistrate Judge did not clearly err when she
11 concluded that these documents are not subject to the deliberative process privilege.
12 Defendants argue that these emails somehow reveal the “deliberative, consultative
13 process of the government” and “tend to reveal the substance of non-final or tentative
14 proposals.” (Obj. at 5–6.) The Court disagrees. The emails discuss the purpose of an
15 upcoming meeting/briefing but do not discuss any proposals for that meeting or reveal any
16 governmental processes—other than the fact of a meeting. The documents are not subject
17 to the deliberative process privilege.
18 B. Documents 2–6
19 The Magistrate Judge concluded that Documents 2–6 are subject to the deliberative
20 process privilege but found that the Plaintiffs’ need for the documents outweighs the
21 Defendants’ interest in non-disclosure. Defendants object to this conclusion.
22 “The deliberative process privilege is a qualified one. A litigant may obtain
23 deliberative materials if his or her need for the material and the need for accurate fact-
24 finding override the government’s interest in non-disclosure.” F.T.C. v. Warner
25 Communications, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984) (citing U.S. v. Leggett & Platt,
26 Inc., 542 F.2d 655, 658 (6th Cir. 1976), cert. denied 430 U.S. 945 (1977)). Among the
27 factors to be considered in determining whether the need for the materials outweighs the
28 government’s interest in non-disclosure are: “(1) the relevance of the evidence; (2) the
1 availability of other evidence; (3) the government’s role in the litigation; and (4) the extent
2 to which disclosure would hinder frank and independent discussion regarding
3 contemplated policies and decisions.” Id. “Other factors courts may consider include ‘(5)
4 the interests of the litigant and ultimately society in accurate judicial fact finding, (6) the
5 seriousness of the litigation and the issues it involved, (7) the presence of issues
6 concerning alleged government misconduct, and (8) the federal interest in enforcement of
7 federal law.’” Del Socorro Quintero Perez v. U.S., No. 13-cv-1417-WQH-BGS, 2016 WL
8 499025, at *2 (S. D. Cal. Feb. 9, 2016) (quoting North Pacifica, LLC v. City of Pacifica,
9 274 F. Supp. 2d 1118, 1122 (N.D. Cal. 2003)).
10 After reviewing Documents 2–6, the Magistrate Judge concluded, “[a] key issue in
11 this case is the validity of Defendants’ stated justification for metering—operational
12 capacity constraints.” Since the documents at issue relate directly to this issue, the
13 Plaintiffs’ need for unredacted copies of these documents outweighs Defendants’ interest
14 in non-disclosure. (Discovery Order at 6.) Defendants argue the Magistrate Judge erred
15 because she failed to analyze each of the factors in the F.T.C. v. Warner Communications
16 case. This Court disagrees and finds that analysis of those factors is implicit in her
17 decision. However, for the edification of Defendants, the Court has reviewed the
18 documents and will now consider each of those factors de novo.
19 As the Magistrate Judge concludes, the documents are relevant to a key issue in this
20 case, that is, whether capacity constraints at the ports of entry were valid justification for
21 the metering rules imposed (factor 1). Although Defendants argue that thousands of
22 additional documents have been produced to Plaintiffs, they point to no evidence that any
23 of those thousands of documents specifically address the issues discussed in Documents
24 2–6, that is, the capacity constraints and whether those constraints were manufactured to
25 support the President’s proclamation (factor 2). The government’s role in the litigation is
26 paramount since the allegations are that the government committed misconduct when it
27 failed to follow constitutional law and international law (factors 3 and 7). Disclosure is
28 unlikely to hinder frank and independent discussion regarding contemplated policies and
1 decisions (factor 4). Given the seriousness of the allegations, both the litigants and the
2 American public have a strong interest in accurate judicial fact-finding (factors 5 and 6).
3 And turning over documents involving discussions of capacity constraints and the plan for
4 dealing with those constraints is not likely to hinder federal law enforcement efforts
5 (factor 8).
6 Therefore, considering all the factors under F.T.C. v. Warner Communications and
7 North Pacifica, the Court concludes that the Plaintiffs’ need for the documents outweighs
8 any interest the Defendants have in non-disclosure.
9 C. Motion to Seal
10 Plaintiffs file an unopposed motion to seal two exhibits reflecting three pages of
11 deposition transcripts and more detailed summaries of Documents 2–9. (Mot. to Seal,
12 ECF No. 458.) Defendants have filed a response in support of the Motion stating that they
13 no longer seek to retain under seal the portions of the deposition transcripts contained in
14 Exhibits 1 and 2 to the Opposition. (Resp. at 1 n.1, ECF No. 472.) Thus, the Court reviews
15 the Motion only for good cause related to sealing the summaries of Documents 2–9.
16 A party moving to seal a document attached to a non-dispositive motion, such as
17 the Objections to the discovery order at issue here, must make a “particularized showing”
18 of “good cause” for the sealing request. Kamakana v. City and Cty. of Honolulu, 447 F.3d
19 1172, 1180 (9th Cir. 2006).
20 Since the Court finds that Documents 2–6 are subject to the deliberative process
21 privilege, the Court finds Plaintiffs have shown good cause for redacting a detailed
22 description of those documents. Additionally, the Court will permit sealing of Document
23 7 based on Magistrate Judge Crawford’s previous finding. (See Discovery Order at 8.)
24 However, because Documents 8–9 are not privileged, the Court finds no good cause to
25 seal the descriptions of these documents.
26 IV. CONCLUSION
27 For the reasons stated above, the Court OVERRULES Defendants’ Objections to
28 Magistrate Judge’s Order. (ECF No. 456.) The Court adopts the Magistrate Judge’s
1 Decision in full (ECF No. 446) and finds that Documents 2—6, although subject to the
2 || deliberative process privilege, should be produced since Plaintiffs’ need for the disclosure
3 outweighs Defendants’ interest in non-disclosure. The Court further finds that Documents
4 || 7-9 are not subject to the deliberative process privilege.
5 Further, the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ Motion
6 ||to Seal (ECF No. 458.) The Clerk shall accept the unredacted, lodged document (ECF
7 459) under seal. Plaintiffs shall file a revised redacted version on the docket,
8 ||conforming to the rulings in Section III-C, by September 17, 2020.
9 IT ISSO ORDERED.
10 / he) cl
fl
11 || DATED: September 10, 2020 Cif i □ Hishasa
12 United States District Judge
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
_Q_