Andrade-Tafolla v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ISIDRO ANDRADE-TAFOLLA, Case No. 3:20-cv-01361-IM

Plaintiff, OPINION AND ORDER

v.

UNITED STATES,

Defendant.

Caitlin Van Tassel Mitchell, Jennifer J. Middleton, Johnson, Johnson, Lucas & Middleton, PC,

975 Oak Street, Suite 1050, Eugene, OR 97401; Jessica Lynn Battle, Leland Baxter-Neal, ACLU

of Oregon, 506 SW 6th Avenue, Suite 700, Portland, OR 97204. Attorneys for Plaintiff.

Dianne Schweiner, United States Attorney’s Office, SW Third Avenue, Suite 600, Portland, OR

97204. Attorney for Defendant.

IMMERGUT, District Judge.

This matter comes before the Court on Plaintiff Isidro Andrade-Tafolla’s Motion to

Compel Production of Documents,1 ECF 42. For the following reasons, Plaintiff’s Motion to

1 The parties neglected to include copies of Plaintiff’s requests for production (“RFP”).

However, Plaintiff lists the discovery requests in his Motion to Compel. ECF 42 at 3–4.

Compel is DENIED.

BACKGROUND

This is a Federal Tort Claims Act case in which Plaintiff asserts a claim of false arrest

and imprisonment against the United States. On September 18, 2017, six United States

Immigration and Customs Enforcement (“ICE” or “the Agency”) agents stopped Plaintiff and his

wife, both United States citizens, as they were attempting to get into their truck outside the

Washington County Courthouse in Hillsboro, Oregon. ECF 42 at 2. Plaintiff claims that agents

surrounded him, boxed in his truck with their vehicles, told him that they had his mugshot, and

demanded identification. Id. The agents did not have a warrant for Plaintiff’s arrest, but were

instead searching for a person named Arturo Garcia-Ramirez. Id. Plaintiff alleges that the agents’

stop was an instance of racial profiling. Id.

Plaintiff served requests for production relating to draft memoranda and communications

about the incident. Specifically, Plaintiff seeks the drafts of memoranda prepared by the officers

at the scene (RFP No. 1); communications concerning the stop between high-level officials

within the Agency—including the Acting Field Office Director, the Assistant Field Office

Director (Anchorage & Portland CAP/VCAS), the Western Regional Communications

Director/Spokesperson, the Public Affairs Officer/Spokeswoman, and the Community Relations

Officer (RFP No. 2); and communications with third parties after the alleged incident—including

media outlets, politicians, and community organizations (RFP No. 5). Id. at 3–4. Plaintiff also

seeks, in the alternative, an in camera review of particular unredacted documents. Id. at 10.

STANDARDS

A. Relevance and Proportionality Under Rule 26

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any

party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Rule

26(b)(1) identifies several factors to be considered when evaluating proportionality including:

“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.” Id. Relevance under Rule 26(b)(1) is defined broadly. See Snipes v. United

States, 334 F.R.D. 548, 550 (N.D. Cal. 2020). Moreover, “[i]nformation within this scope of

discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1).

“Generally, the purpose of discovery is to remove surprise from trial preparation so the parties

can obtain evidence necessary to evaluate and resolve their dispute.” Duran v. Cisco Sys., Inc.,

258 F.R.D. 375, 378 (C.D. Cal. 2009) (internal quotation marks and citation omitted).

B. Work-Product Doctrine

Under Federal Rule of Civil Procedure 26(b)(1), parties may discover any unprivileged

information that is relevant to any party’s claim or defense and proportional to the needs of the

case. Fed. R. Civ. P. 26(b)(1). Pre-trial discovery is “accorded a broad and liberal treatment.”

Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993) (internal quotation marks omitted) (quoting

Hickman v. Taylor, 329 U.S. 495, 507 (1947)). The work-product doctrine “is not a privilege but

a qualified immunity protecting from discovery documents and tangible things prepared by a

party or his representative in anticipation of litigation.” Admiral Ins. Co. v. U.S. Dist. Court for

Dist. of Ariz., 881 F.2d 1486, 1494 (9th Cir. 1989) (citing Fed. R. Civ. P. 26(b)(3)).

The Ninth Circuit has adopted the “because of” standard for determining whether a

document was prepared “in anticipation of litigation.” See In re Grand Jury Subpoena (Mark

Torf/Torf Env’t Mgmt.), 357 F.3d 900, 907 (9th Cir. 2004). A document should be deemed in

anticipation of litigation if “in light of the nature of the document and the factual situation in the

particular case, the document can be fairly said to have been prepared or obtained because of the

prospect of litigation.” Id. (internal quotation marks omitted) (quoting 8 Charles Alan Wright,

Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2024 (2d ed. 1994)).

That said, work product may be discovered if the seeking party “shows that it has

substantial need for the materials to prepare its case and cannot, without undue hardship, obtain

their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii). “[T]he party

asserting protection under the work-product doctrine generally has the burden to show that the

elements of the doctrine have been established.” McKenzie L. Firm, P.A. v. Ruby Receptionists,

Inc., 333 F.R.D. 638, 641 (D. Or. 2019).

C. Deliberative Process Privilege

The deliberative process privilege protects “the decision making processes of government

agencies” in order to “prevent injury to the quality of agency decisions.” N.L.R.B. v. Sears,

Roebuck & Co., 421 U.S. 132, 150–51 (1975) (internal quotation marks and citations omitted).

To fall within the protection of the deliberative process privilege, a document must be both (1)

predecisional, and (2) deliberative. Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114,

1117 (9th Cir. 1988). A document is predecisional if it was “prepared in order to assist an agency

decisionmaker in arriving at his decision.” Assembly of State of Cal. v. U.S. Dep’t of Com., 968

F.2d 916, 921 (9th Cir. 1992) (internal quotation marks omitted) (quoting Renegotiation Bd. v.

Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975)). A document is deliberative if

“disclosure of materials would expose an agency’s decision-making process in such a way as to

discourage candid discussion within the agency and thereby undermine the agency’s ability to

perform its functions.” Id. (quoting Dudman Commc’ns Corp. v. Dep’t of the Air Force, 815

F.2d 1565, 1568 (D.C. Cir. 1987)).

“The burden of establishing application of the deliberative process privilege is on the

party asserting it.” Thomas v. Cate, 715 F. Supp. 2d 1012, 1019 (E.D. Cal. 2010). Finally, even

where the privilege is properly asserted, it is not absolute, and the court must determine whether

the need for the evidence overrides the government’s interest in non-disclosure. See F.T.C. v.

Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984).

DISCUSSION

Plaintiff seeks documents that are responsive to RFP Nos. 1, 2, and 5. This Court finds

that the documents responsive to RFP Nos. 1 and 2 are protected from disclosure under the

work-product doctrine and deliberative process privilege.2 The documents responsive to RFP No.

5 refer to communications with specific third parties and are not discoverable under Rule

26(b)(1).

A. RFP Nos. 1 and 2 Are Protected Under the Work-Product Doctrine

This Court finds that the work-product doctrine applies to the documents responsive to

RFP Nos. 1 and 2. To qualify for work-product protection, materials must: “(1) be prepared in

anticipation of litigation or for trial and (2) be prepared by or for another party or by or for that

other party’s representative.” United States v. Richey, 632 F.3d 559, 567 (9th Cir. 2011) (internal

quotation marks and citation omitted).

Plaintiff argues that the work-product doctrine is inapplicable here because Agency

representatives were not under the impression that potential litigation was on the horizon. ECF

42 at 9. Specifically, Plaintiff claims that communications between ICE’s Acting Field Office

2 This Court finds that an analysis of Defendant’s assertion of the “law enforcement

sensitive privilege” would not affect its conclusions. ECF 47 at 12–13. Accordingly, this Court

declines to address these arguments.

Director and Western Regional Communications Director/Spokesperson show that ICE had not

received a complaint and that it was “not looking into” the incident. Id. However, Plaintiff

appears to take these statements out of context. The statement from the Acting Field Office

Director that the agency was “not looking into” the incident was in response to specific media

inquiries about racial profiling. See ECF 43 at 16. Because, in the Agency’s view, no racial

profiling had occurred, it answered in the negative. See ECF 47 at 8. Plaintiff’s apparent

misunderstanding of this statement does not provide any evidence that the Agency was somehow

unaware of the ensuing controversy and the potential of legal action.

This Court must evaluate not only the individual motives “that contributed to a

document's preparation” but also the “circumstances surrounding the document’s preparation.”

In re Grand Jury Subpoena, 357 F.3d at 908. Plaintiff’s argument is undercut by several facts in

the record which demonstrate that the Agency was on notice that legal action was more than just

hypothetical in nature. See Heath v. F/V Zolotoi, 221 F.R.D. 545, 549 (W.D. Wash. 2004)

(“More than the mere possibility of litigation must be evident for materials to be considered

immune from discovery under the work-product doctrine.” (internal quotation marks omitted)

(quoting Detection Sys., Inc. v. Pittway Corp., 96 F.R.D. 152, 155 (W.D.N.Y. 1982)); Fox v. Cal.

Sierra Fin. Servs., 120 F.R.D. 520, 524 (N.D. Cal. 1988) (“There is no requirement that the

litigation have already commenced in order for the work-product doctrine to be operative,

however, there must be more than a remote possibility of litigation.”).

During the incident itself, a legal observer from the American Civil Liberties Union

(“ACLU”) followed ICE officers, apparently from the courthouse, and videotaped the incident.3

3 The September 18, 2017 video of the incident, see ECF 10 at 3, is referenced in

Plaintiff’s Complaint, ECF 1 at 4.

Plaintiff’s Complaint notes that the ACLU observer asked officers in a loud voice: “Do you have

a warrant? Are you ICE? Do you have a warrant for his arrest?” ECF 1 at 4. Immediately after

the incident, it appears that Plaintiff pursued an aggressive media strategy to provide the public

with information about the case, and the above-referenced videotape was disseminated to the

media. See, e.g., ECF 48-1 at 4 (noting that Plaintiff “spoke to many people about the incident”

including media outlets and the Oregon Legislature). This resulted in media outlets, public

interest organizations, and other entities directing inquiries and document requests to the

Agency. ECF 47 at 6. In fact, the very email thread cited by Plaintiff shows that ICE officials

were aware that this incident was attracting local and national media attention. ECF 43 at 14–17.

ICE officials even lamented that the incident was turning into “the crisis du jour.” Id. at 14; see

also id. (documenting that one of the media articles forwarded to ICE officials involved calls to

investigate the Agency over the incident). Thus, there is plenty of evidence that Agency officials

were on alert and actively monitoring the situation. ECF 43 at 15 (noting that an Agency official

asked “[w]hich entity would be responsible for investigating such complaints if they were

lodged?”). Considering that a letter merely threatening litigation is sufficient to put a potential

party on notice that litigation could be anticipated, MeadWestvaco Corp. v. Rexam, PLC, No.

1:10CV511 GBL/TRJ, 2011 WL 2938456, at *3 (E.D. Va. July 18, 2011), it would be myopic to

assume that other adversarial tactics could not similarly suffice. One only has to watch the video

of the incident to see that it was clear from the very outset that litigation was imminent.

While Plaintiff suggests that the memoranda should be treated as if they were routine

incident reports, ECF 42 at 6, the documents appear to have been created for a particular

litigation purpose—informing high-level Agency officials about the incident. ECF 43 at 4–7. It is

understandable that an Agency would need to compile the relevant facts in order to prepare for

an anticipated legal action. See Martin v. Naval Crim. Investigative Serv., No. 10cv1879 WQH

(NLS), 2012 WL 6553408, at *6 (S.D. Cal. Dec. 14, 2012) (noting that “a compilation of any

facts that would reveal those [legal] strategies or impressions, is entitled to work product

immunity”). This comports with Defendant’s argument that ICE supervisors requested the officer

memoranda be drafted precisely because of Plaintiff’s public litigation of the case. See ECF 47 at

6. Plaintiff’s argument suffers because he asks this Court to construe the scope of the protection

too narrowly. Richey, 632 F.3d at 568 (“In applying the ‘because of’ standard, courts must

consider the totality of the circumstances and determine whether the document was created

because of anticipated litigation, and would not have been created in substantially similar form

but for the prospect of litigation.” (internal quotation marks and citation omitted)). Accordingly,

this Court finds that the draft memoranda (RFP No. 1) are subject to work-product protection.

This rationale is also applicable to the texts, emails, and other communications between

Agency officials (RFP No. 2). Considering that these documents involve post-incident

communications with high-level officials within the Agency, and not the actual officers

themselves, ECF 47 at 7, it is likely that the potential of litigation was a subject of discussion.

Like the drafts, these communications seem to have been in response to a litigation situation that

was quickly evolving. As a result, this Court finds that the work-product protection also applies

to the intra-Agency communications about the stop (RFP No. 2).

Plaintiff urges this Court to compel production of the documents even if it finds that the

work product doctrine applies because he has a substantial need for the materials, and cannot,

without undue hardship obtain their substantial equivalent by any other means. Plaintiff

speculates that these documents could provide information about central factual questions

concerning the nature of the stop and the rationale behind it. ECF 42 at 9. But Plaintiff has not

adequately explained how this translates into a substantial need for the materials. For example, it

is not clear how Plaintiff’s efforts to prove the elements of his false arrest and imprisonment

claim would be furthered by working drafts and after-the fact communications.4 ECF 47 at 6.

Considering that the work product doctrine’s primary function is to “prevent exploitation of a

party’s efforts in preparing for litigation,” this Court cannot allow Plaintiff to potentially peer

into the Agency’s litigation preparation and strategy without a more significant showing of need.

See Admiral Ins. Co., 881 F.2d at 1494.

Nevertheless, this Court disagrees with Defendant’s contention that documents related to

third-party communications with media outlets, politicians, and community organizations (RFP

No. 5) are not discoverable under the work product doctrine. ECF 42 at 9. Defendant has failed

to explain how Agency communications with these outside entities would qualify for work-

product protection. While third-party communications can constitute work product under certain

circumstances, in this case, these outside entities are not party representatives in this action. See

Fed. R. Civ. P. 26(b)(3)(A). Further, there is no evidence that these outside entities were

somehow acting at the behest of the Agency. See Cal. Inst. of Tech. v. Hughes Commc’ns, Inc.,

No. 2:13-cv-07245-MRP-JEM, 2015 WL 11120674, at *2 (C.D. Cal. Feb. 24, 2015). Thus,

Defendant cannot prevent disclosure of documents responsive to RFP No. 5 under the work-

product doctrine alone.

4 Plaintiff's claim for false arrest requires him to prove that (1) the officers confined him,

(2) the officers intended to confine him, (3) Plaintiff was aware of the confinement, and (4) the

confinement was unlawful. Fossen v. Clackamas Cnty., 271 Or. App. 842, 847 (2015).

Defendant’s point is well-taken that these elements must have been satisfied at the time of the

stop. ECF 47 at 6–7. Unfinished drafts prepared after the incident and post-incident

communications do not tend to prove those elements.

B. RFP Nos. 1 and 2 Are Protected Under the Deliberative Process Privilege

This Court finds that the deliberative process privilege also protects from disclosure

documents responsive to RFP Nos. 1 and 2.5 In order to enjoy the protections of the privilege, a

document must be both “predecisional” and “deliberative.” Nat’l Wildlife Fed’n, 861 F.2d at

1117. With respect to the predecisional prong, Plaintiff claims that the privilege fails because the

officers’ statements were not “prepared in order to assist an agency decisionmaker in arriving at

his decision.” See ECF 42 at 6 (internal quotation marks omitted) (quoting Assembly of State of

Cal., 968 F.2d at 921). But as this Court already discussed with respect to the applicability of the

work-product doctrine, the memoranda and communications that were created and exchanged in

the aftermath of the incident did not occur in a vacuum. Rather, the record shows that this

incident generated widespread interest in law enforcement practices within the Agency. For

example, on September 20, 2017, NBC Latino submitted a press inquiry to the Agency asking

whether there was “any official policy regarding racial profiling?” ECF 43 at 17.

Thus, the draft memoranda and the communications all appear to have been created in

service of assisting the Agency in crafting a media response. Plaintiff argues that the privilege

does not extend to documents that were created in order to prepare an Agency’s public

5 Under the Freedom of Information Act (“FOIA”), a federal agency must disclose

agency records unless they may be withheld pursuant to one of the nine enumerated exemptions

listed in 5 U.S.C. § 552(b). See United States v. Weber Aircraft Corp., 465 U.S. 792, 793–94

(1984). Many courts have noted that 5 U.S.C. § 552(b)(5) embodies the deliberative process

privilege. E.g. Carter v. United States DOC, 307 F.3d 1084, 1088–89 (9th Cir. 2002). “Federal

courts regularly apply FOIA precedent when interpreting the deliberative process privilege.” Nw.

Env’t Advocates v. U.S. E.P.A., No. 05–1876–HA, 2009 WL 349732, at *3 n.1 (D. Or. Feb. 11,

2009), even in cases that do not involve FOIA claims, see, e.g., Warner Commc’ns Inc., 742 F.2d

at 1161 (citing FOIA Exemption 5 case law in analysis of non-FOIA deliberative process

privilege claims). The exemptions are permissive, and an agency may voluntarily release

information that it would be permitted to withhold under the FOIA exemptions. See Chrysler

Corp. v. Brown, 441 U.S. 281, 290–94 (1979).

communications.6 ECF 42 at 7. But district courts within this Circuit and beyond have adopted a

patchwork of different approaches which have included protections for agencies in the process of

formulating responses to media and other entities. See, e.g., P.W. Arms, Inc. v. United States, No.

C15-1990-JCC, 2017 WL 319250, at *4 (W.D. Wash. January 23, 2017) (“[C]ommunications

discussing how to respond to Congressional and media inquiries, even when postdecisional in

time, have been found to be ‘generated as part of a continuous process of agency decision

making, viz., how to respond to on-going inquiries’ and properly withheld as predecisional.”

(quoting Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec., 736 F. Supp. 2d 202, 208 (D.D.C.

2010)).

While the Ninth Circuit has not specifically opined on the applicability of the privilege to

media inquiries, it has generally eschewed wooden and inflexible formulations of the privilege.

See, e.g., Nat’l Wildlife Fed’n, 861 F.2d at 1119–20; see also id. at 1118 (explaining that “a

better analytical tool than merely determining whether the material itself was essentially

deliberative or factual” is “whether the document in question is a part of the deliberative

process” and rejecting the argument that a document “must itself contain recommendations on

law or policy to qualify as ‘deliberative’”). As a result, this Court finds no reason to limit the

scope of what may be deemed predecisional to just those agency decision-making processes that

involve conventional or explicit policymaking. See P.W. Arms, Inc., 2017 WL 319250, at *5

(holding that the privilege log entries “describe predecisional documents and text that were

6 Plaintiff also argues that the draft memoranda contain factual matter subject to

discovery. ECF 42 at 6. Plaintiff correctly notes that pure factual matters are not subject to the

deliberative process privilege. United States v. Fernandez, 231 F.3d 1240, 1247 (9th Cir. 2000).

But when—as here—factual information would appear to be thoroughly integrated into

deliberative material, disclosure would allow Plaintiff to probe into the thought processes of the

Agency. Transgender L. Ctr. v. U.S. Immigr. & Customs Enf’t, No. 19-cv-03032-SK, 2020 WL

7382113, at *12 (N.D. Cal. Nov. 24, 2020).

generated as part of a continuous process to respond to on going inquires from Congress about

the agency action” and that “[r]eleasing the redacted information could disclose [the Agency’s]

deliberative process and diminish the candor of debate that the (b)(5) exception is meant to

protect”); see also Bloche v. Dep’t of Def., 370 F. Supp. 3d 40, 52 (D.D.C. 2019) (“Because

these kinds of public communications all require the ‘formulation [and] exercise of agency

policy-oriented judgment,’ they fall within the scope of the deliberative process privilege.”

(quoting Prop. of the People, Inc. v. Off. of Mgmt. & Budget, 330 F. Supp. 3d 373, 382 (D.D.C.

2018)).

The documents also satisfy the deliberative prong of the test because disclosure would

discourage candid discussion and undermine the Agency’s ability to perform its functions.

Assembly of State of Cal., 968 F.2d at 920. This Court is cognizant of the close relationship

between this specific incident and the Agency’s larger enforcement policies at issue. See, e.g.,

ECF 43 at 20 (noting that when officers arrived at the scene, “legal Observers” were filming

their arrival and taking pictures). It is especially true in cases involving public controversy that

Agencies should not operate in a “fishbowl” where they would be forced to sterilize their

discussions solely to avoid future criticism. Ctr. for Biological Diversity v. U.S. Army Corps of

Eng’rs, No. CV 14-1667 PSG (Cwx), 2015 WL 3606419, at *7 (C.D. Cal. Feb. 4, 2015).

Because the draft memoranda and intra-Agency communications appear to be both predecisional

and integral to the Agency’s deliberative process, they are subject to the privilege.

While the deliberative process is a qualified one, Plaintiff has not shown that his need

overrides the government’s interest in non-disclosure. Karnoski v. Trump, 926 F.3d 1180, 1206

(9th Cir. 2019); Warner Commc’ns Inc., 742 F.2d at 1161. Courts balance four factors in

determining whether this exception applies: “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 decisions.”

Warner Commc’ns Inc., 742 F.2d at 1161.

Considering all of these factors, this Court notes that only the third factor weighs

significantly in Plaintiff’s favor since the government is a party in this action. See Toomey v.

Arizona, No. CV 19-0035-TUC-RM (LAB), 2021 WL 1545990, at *3 (D. Ariz. Apr. 20, 2021)

(“Where the government is itself a defendant, the reason for the privilege evaporates.”). Plaintiff,

otherwise, has not provided a compelling argument why the relevance of these post-incident

documents or their purported unavailability should overcome the privilege. Even if the

documents do not contain explicit policy recommendations, this does not doom Defendant’s

claim. As this Court has already explained, responses to media inquiries can form a basis for the

privilege’s invocation. Considering these factors together, this Court finds that Plaintiff’s

purported need does not override Defendant’s interest in non-disclosure.

While this Court finds that the privilege applies to RFP Nos. 1 and 2, Defendant has

failed to explain how communications with outside entities like media outlets and community

organizations could be considered either predecisional or part of the Agency’s deliberative

process. See Assembly of State of Cal., 968 F.2d at 920. By its very nature, the privilege is meant

to protect internal debate within the Agency. Am. Civil Liberties Union of N. Cal. v. U.S. Dep’t

of Just., 880 F.3d 473, 490 (9th Cir. 2018) (“The deliberative process privilege protects the

internal decision making processes of government agencies.”). This Court would be undermining

the very principle driving the privilege if it were to extend the doctrine to external

communications with entities that bear no connection to the Agency’s policy-making processes

such as media outlets, politicians, and community organizations. Accordingly, this Court finds

that the privilege alone does not prevent disclosure of documents responsive to RFP No. 5.

C. RFP No. 5 Is Not Discoverable Under Fed. R. Civ. P. 26(b)(1)

While the protections of the work-product doctrine and deliberative process privilege do

not apply to RFP No. 5, this Court must still evaluate whether disclosure of these third-party

communications is nevertheless prohibited under Rule 26. This Court finds that Plaintiff is not

entitled to discovery of documents responsive to RFP No. 5 because the requested information

lacks relevance and is not proportional to the needs of his case.7 Plaintiff has not adequately

explained how post-incident communications with third parties outside of the Agency have any

relevance to his claim. See Fed. R. Civ. P. 26(b)(1). As this Court has already discussed in the

context of RFP No. 2, post-incident communications do not tend to prove the elements of

Plaintiff’s cause of action. This is especially true with respect to RFP No. 5, where the third-

party communications sought from media outlets, politicians, and community organizations are

even farther removed from information that could be relevant. Plaintiff’s explanation that

production of these documents could lead to the discovery of “inconsistent accounts” or

“incomplete responses to inquiries” is largely speculative. ECF 42 at 9–10.

Although relevance for discovery purposes is defined broadly, it is not without

boundaries. See, e.g., Rivera v. NIBCO, Inc., 364 F.3d 1057, 1072 (9th Cir. 2004) (“District

courts need not condone the use of discovery to engage in fishing expeditions.” (alteration

omitted) (internal quotation marks and citation omitted)). Accordingly, this Court, exercising its

“broad discretion in determining relevancy for discovery purposes,” finds that documents

7 This Court notes that RFP No. 5 is also overbroad. While the RFP lists specific third-

party communications that are of interest—namely, the Agency’s communications with media

outlets, politicians, and community organizations—it still seeks “all communications with third

parties.” ECF 42 at 4.

responsive to RFP No. 5 are not discoverable. Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d

625, 635 (9th Cir. 2005).

Plaintiff’s request is also deficient because he has failed to explain how disclosure would

be proportional to the needs of his case. See Fed. R. Civ. P. 26(b)(1) (noting that proportionality

considers “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”). Reviewing the factors outlined in Rule 26(b)(1), and the parties’

briefing, this Court finds that its analysis skews towards Defendant.

Defendant’s point is well-taken that production of the documents would be too

burdensome because it has no way of searching for post-incident communications exchanged

between high-level Agency officials. ECF 47 at 13. This is because these documents often do not

contain either Plaintiff’s name or the name of the person originally sought by ICE—Arturo

Garcia-Ramirez. Id. Defendant also notes that the heavily redacted FOIA documents attached to

Plaintiff’s motion do not provide sufficient information to be able to retrieve the documents. Id.

(“[D]ocuments produced by a FOIA department within ICE have no relation to the documents

available to the U.S. Attorney’s Office in the defense of this litigation against the United

States.”). Further, the speculative nature of the third-party communications makes it uncertain

that disclosure could even contribute to resolving the issues here. Because the proposed

discovery is neither relevant nor proportional to the needs of the case, this Court concludes that

Plaintiff is not entitled to the disclosure of documents responsive to RFP No. 5.

D. In Camera Review

Plaintiff requests that this Court conduct an in camera review of the documents to assess

the validity of the asserted privileges. In United States v. Zolin, 491 U.S. 554, 572 (1989), the

Supreme Court held that a district court may in some circumstances order an in camera review of

documents. “To empower the district court to review the disputed materials in camera, the party

opposing the privilege need only show a factual basis sufficient to support a reasonable, good

faith belief that in camera inspection may reveal evidence that information in the materials is not

privileged.” In re Grand Jury Investigation, 974 F.2d 1068, 1075 (9th Cir. 1992). But even if the

requesting party can make that showing, “the decision whether to conduct the review rests within

the discretion of the district court.”8 Id. In camera review is generally disfavored and a “court

should not conduct such a review solely because a party begs it to do so.” Nishika, Ltd. v. Fuji

Photo Film Co., 181 F.R.D. 465, 467 (D. Nev. 1998).

Here, Plaintiffs have made no such factual showing. For example, in arguing that he is

entitled to the draft memoranda, Plaintiff merely notes that the draft memoranda “may contain

relevant information that the agents’ supervisors decided to edit or delete.” ECF 42 at 5

(emphasis added). But Plaintiff must show more than a “hunch” that the privileged

communications may contain additional facts subject to disclosure. See Reynolds v. Liberty Mut.

Ins. Co., No. CV-16-00020-TUC-JGZ, 2017 WL 6415360, at *4 (D. Ariz. May 23, 2017)

(“Plaintiff has failed to make the requisite factual showing, instead hinging his argument on a

hunch.”); see also Aerojet Rocketdyne, Inc. v. Glob. Aerospace, Inc., No. 2:17-cv-01515 KJM

AC, 2019 WL 1178635, *4 (E.D. Cal. 2019) (holding that party failed to meet minimal threshold

8 The exercise of this discretion “is guided by the factors enumerated in Zolin.” Grand

Jury Investigation, 974 F.2d at 1075. Under Zolin, “[t]he court should make that decision

[whether to conduct in camera review] in light of the facts and circumstances of the particular

case, including, among other things, the volume of materials the district court has been asked to

review [and] the relative importance to the case of the alleged privileged information.” 491 U.S.

at 572.

for in camera review of redacted material where it argued that most of the redacted information

was not privileged because the redactions appeared to be “heavy handed” and “inconsisten[t]”).

Accordingly, this Court denies Plaintiff’s request for an in camera review.

CONCLUSION

Plaintiff’s Motion to Compel Production of Documents, ECF 42, is DENIED. Documents

responsive to RFP Nos. 1 and 2 are subject to the work-product doctrine and deliberative process

privilege and may be withheld. Documents responsive to RFP No. 5 are not discoverable under

Rule 26(b)(1) because they lack relevance and are not proportional to the needs of Plaintiff’s

case. Plaintiff’s request, in the alternative, for an in camera review is DENIED.

IT IS SO ORDERED.

DATED this 17th day of March, 2022.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge