Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 1 of 18 1 THE HONORABLE RICHARD A. JONES 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 ABDIQAFAR WAGAFE, et al., on behalf of themselves and others similarly situated, 10 11 12 13 Plaintiffs, v. DONALD TRUMP, President of the United States, et al., Defendants. 14 No. 2:17-cv-00094-RAJ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS. 23 & 24 NOTE ON MOTION CALENDAR: DECEMBER 8, 2017 15 16 17 18 19 20 21 22 23 24 25 26 Perkins Coie LLP PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 23 & 24 (No. 2:17-cv-00094-RAJ) 137830361.1 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 2 of 18 1 I. MOVING PARTY'S INTRODUCTORY STATEMENT 2 This lawsuit challenges the legality of the Controlled Application Review and Resolution 3 Program (“CARRP”), as well as “extreme vetting” programs that have been or that are instituted 4 pursuant to Executive Orders 13769, 82 Fed. Reg. 8977 (“First EO”) and 13780, 82 Fed. Reg. 5 13209 (“Second EO”). Dkt. # 47 (Second Amended Complaint) ¶¶ 18, 55, 138-41. Plaintiffs 6 requested production of documents regarding the consideration of CARRP in the promulgation 7 of the First or Second EOs, as well as documents regarding any “extreme vetting” program(s) 8 connected to the First or Second EOs. See Dkt. # 92 Ex. A at 40-42 (detailing Plaintiffs’ 9 Requests for Production 23 and 24, and Defendants’ Responses and Objections thereto). 10 Defendants objected to production of documents responsive to these requests on several grounds. 11 See id. After conferences of counsel for the parties did not resolve the matter, Plaintiffs moved 12 to compel these documents. Dkt. # 91. 13 The Court granted in part and denied in part Plaintiffs’ motion to compel. Dkt. # 98. 14 With respect to documents related to the First and Second EOs, the Court held that “the 15 Government must provide a proper privilege log if it means to assert a deliberative-process 16 privilege over certain documents.” Id. at 5. Second, in order to avoid “intruding on the 17 Executive” by demanding discovery directly from the President, “the Court order[ed] the parties 18 to meet and confer within thirty (30) days from the date of this Order to discuss alternative 19 custodians and non-custodial sources of information for any discovery over which the 20 Government asserts this specific [executive] privilege.” Id. 21 The parties met and conferred for several hours on November 7 and November 14, 2017, 22 as ordered by the Court. The parties reached impasse as described in the parties’ respective 23 arguments below. 24 25 26 Perkins Coie LLP PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 23 & 24 (No. 2:17-cv-00094-RAJ) – 1 137830361.1 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 3 of 18 1 2 II. RESPONDING PARTY'S INTRODUCTORY STATEMENT Defendants generally agree with the facts recited in Plaintiffs’ Introductory Statement, 3 but add the following information for context. In Plaintiffs’ motion to compel, Dkt. No. 91, the 4 issue, in part, was whether it was unduly burdensome on Defendants to respond to RFP No. 23 5 (which seeks documents referring or relating to any consideration of or reference to CARRP 6 during the planning, drafting, or issuing of the First and Second EOs) because any responsive 7 documents would almost certainly be privileged. The Court held that a claim of privilege was 8 premature before defendants searched for and reviewed responsive records, and compiled a 9 privilege log. Dkt. No. 98, at 5. During the parties’ discussions of these issues when they met 10 and conferred, Defendants informed Plaintiffs that USCIS officials familiar with that agency’s 11 efforts to implement the First and Second EOs report, to the best of their knowledge, 12 information, and belief: that neither EO impacted the development, adoption, review, or revision 13 of CARRP; that efforts to implement the EOs have not involved changing, modifying, or 14 updating CARRP policy; and that CARRP and any policy, program, or effort that supports 15 implementation of the EOs are unrelated and distinct from one another. Accord Decl. of Julie E. 16 Farnam, Dkt. No. 94-1, at 2-3. Thus, while the dispute between the parties over RFP No. 23 17 previously concerned undue burden and privilege, currently the parties lack agreement over 18 whether any additional search or inquiry is required to establish that there are, in fact, no 19 documents responsive to RFP No. 23, and what, if any, additional efforts on that front should be 20 undertaken. 21 Separately, as set out below, RFP No. 24 seeks documents referring or relating to 22 “extreme vetting” connected to the First or Second EOs. In the course of meeting and conferring 23 concerning alternate sources of discovery to the President and White House Office for 24 responsive materials, it became apparent the parties have different views of the antecedent 25 question of the proper scope of discovery into matters relating to the EOs. Because further 26 progress on identifying alternate custodians and non-custodial sources of EO-related discovery PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 23 & 24 (No. 2:17-cv-00094-RAJ) – 2 137830361.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 4 of 18 1 requires the parties to come to a common understanding of the proper scope of EO-related 2 discovery, and because the parties are now at an impasse on that question, Defendants’ counsel 3 proposed that the parties seek the Court’s guidance on that question. 4 III. 5 DISPUTED DISCOVERY REQUESTS REQUEST FOR PRODUCTION NO. 23: All Documents referring or relating to any 6 consideration of or reference to CARRP during the planning, drafting, or issuing of the First and 7 Second EOs. 8 DEFENDANTS’ RESPONSE: As noted above, Defendants’ response to this RFP was 9 originally based on undue burden and privilege, but those objections have been both ruled on by 10 the Court and overtaken by events. At this point, Defendants have told Plaintiffs that, based on 11 reasonable inquiry at USCIS, they believe that no responsive documents exist.1 Further, as will 12 be discussed below, Defendants do not believe this issue is properly presented to the Court in 13 this filing, as they have not consented to use of the LCR 37(a)(2) expedited joint motion 14 procedure for this issue and believe the issue requires further discussion between the parties 15 before it is ripe for judicial decision. Consequently, Defendants object to its inclusion in this 16 filing. 17 REQUEST FOR PRODUCTION NO. 24: All Documents referring or relating to 18 “extreme vetting” or any other screening, vetting, or adjudication program, policy, or procedure 19 connected to the First or Second EOs. This request includes, but is not limited to, programs that 20 reference, relate to, or expand upon CARRP. 21 DEFENDANTS’ OBJECTIONS2 AND RESPONSE: Defendants . . . object on the 22 ground that “extreme vetting” is a vague and undefined term, and it is therefore unclear exactly 23 what Plaintiffs seek. . . . Defendants further object to providing any Documents connected to the 24 25 26 Defendants reserve the right to assert any applicable privilege as to any particular responsive document(s), were any to come to light in the future. 2 Defendants’ objections to RFP No. 24 are abbreviated here to omit grounds for objection that are not at issue in this submission. 1 PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 23 & 24 (No. 2:17-cv-00094-RAJ) – 3 137830361.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 5 of 18 1 First or Second EOs unless the program, policy, or procedure is intended to expand or modify 2 CARRP. This is consistent with the court’s ruling that “The main thrust of this case is the 3 legality of CARRP. The Court will not dismiss Plaintiffs’ claims because they include 4 allegations of a possible future and unlawful program that would embody CARRP in all but 5 name.” Dkt. No. 69, at 15. Defendants thus object to any discovery into programs, policies, and 6 procedures connected to the First and Second EOs that are intended to do other than “embody 7 CARRP in all but name.” . . . Notwithstanding these objections, USCIS will produce non- 8 privileged responsive Documents connected to the Second EO, relating to any program, policy, 9 or procedure for screening, vetting, or adjudicating adjustment-of-status or naturalization 10 applications within the custody, possession, or control of USCIS to the extent such Documents 11 exist, are of national applicability, are intended to expand or modify CARRP such that they 12 would embody CARRP in all but name, and can be located after a reasonable search. 13 A. 14 Moving Party’s Argument In its order concerning Plaintiffs’ motion to compel, the Court observed that “Plaintiffs 15 seek documents that connect any kind of ‘extreme vetting’ program to the two Executive 16 Orders.” Dkt. # 98 at 5. The government invoked two privileges: the deliberative process 17 privilege and the Executive privilege. In response to deliberative process, the Court concluded 18 that this argument was “premature” and ordered that “the Government must provide a proper 19 privilege log if it means to assert a deliberative-process privilege over certain documents.” Id. 20 As for the Executive privilege, the Court ordered the parties to meet and confer “to 21 discuss alternative custodians and non-custodial sources of information for any discovery over 22 which the Government asserts this specific privilege.” Id. During the parties’ meet and confer, 23 Plaintiffs asked Defendants whether they had identified any such alternative custodial and non- 24 custodial sources. Rather than provide any pursuant to the Court’s order, Defendants took the 25 position that Plaintiffs are not entitled to any discovery concerning the Executive Orders. 26 According to Defendants, whatever “extreme vetting” may be implemented under the Executive PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 23 & 24 (No. 2:17-cv-00094-RAJ) – 4 137830361.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 6 of 18 1 Orders, such programs or processes will not directly relate to the CARRP program. Based on 2 that representation, Defendants have asserted that they are not obligated to produce any 3 documents, or even provide a list of custodians, concerning the Executive Orders. 4 At the outset, Plaintiffs are not required to take Defendants at their word that there is no 5 connection between CARRP and any “extreme vetting” being implemented under the Executive 6 Orders. The Court granted Plaintiffs’ motion to compel on this issue, and ordered Defendants to 7 confer with Plaintiffs about potential custodians and non-custodial sources of this information. 8 Plaintiffs are entitled to discovery on this point, which requires Defendants to actually identify 9 potential sources of information and conduct a forensically sound search. If, after engaging in 10 such search, there are no responsive documents to produce, so be it; but Defendants cannot avoid 11 engaging in any search based on a mere belief that there will not be any responsive documents. 12 Accordingly, Defendants must produce documents responsive to Plaintiffs’ RFP No. 23. 13 As for RFP No. 24, Defendants have taken the position that this case is only about 14 CARRP, and therefore Plaintiffs are not allowed any discovery on other “extreme vetting” 15 programs related to the Executive Orders. Defendants’ position mischaracterizes Plaintiffs’ 16 claims. As the Second Amended Complaint (Dkt. # 47) makes clear, however, Plaintiffs’ 17 allegations encompass any extreme vetting program implemented by the Executive Orders, and 18 are not limited solely to CARRP. 19 20 For instance, Plaintiffs’ First Claim (under the INA and APA) and Second Claim (mandamus), each allege as follows: 21 Defendants have interpreted the First EO and will interpret the Second EO to authorize the suspension of immigration petitions, applications, or requests involving Plaintiff Wagafe, Plaintiff Ostadhassan, Plaintiff Bengezi, and members of the Muslim Ban Class. Accordingly, Defendants will suspend adjudication of such immigration benefits petitions, applications, or requests. 22 23 24 25 26 SAC, ¶¶ 251-52; ¶¶ 257-58. Likewise, Plaintiffs’ Third Claim (Establishment Clause), alleges as follows: PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 23 & 24 (No. 2:17-cv-00094-RAJ) – 5 137830361.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 7 of 18 1 5 The First EO was and Second EO is intended to target a specific religious faith—Islam. The First EO gave preference to other religious faiths—principally Christianity—and the Second EO has that intended effect when applied to Plaintiffs and members of the Muslim Ban Class. Defendants’ application of the First EO and Second EO to Plaintiffs and members of the Plaintiff Classes violates the Establishment Clause of the First Amendment to the United States Constitution by not pursuing a course of neutrality with regard to different religious faiths. 6 SAC, ¶ 261. All three of those claims are brought on behalf of Plaintiffs Wagafe, Ostadhassan, 7 and Bengezi, in addition to the Muslim Ban Class. 2 3 4 8 9 Moreover, Plaintiffs’ Fifth Claim (Substantive Due Process), alleges that under CARRP and the Executive Orders, the “unauthorized and indefinite suspension of the adjudication of 10 Plaintiffs’ and the Proposed Classes’ applications for immigration benefits” is unconstitutional. 11 SAC, ¶ 266. And Plaintiffs’ Sixth Claim (Equal Protection) explicitly alleges that the 12 Government has “applied the First EO and will apply the Second EO with discriminatory animus 13 and discriminatory intent in violation of the equal protection component of the Fifth 14 Amendment.” SAC, ¶ 272. Both claims are brought on behalf of all Plaintiffs and all Plaintiff 15 Classes. 16 Notably, the Court denied the Government’s motion to dismiss as to all those claims. 17 Dkt. # 69 at 22. Plaintiffs are therefore entitled to discovery on the Executive Orders, and such 18 discovery cannot be limited or restricted to documents that directly relate to or reference 19 CARRP. As the Court accurately pointed out, “Plaintiffs seek documents that connect any kind 20 of ‘extreme vetting’ program to [the] two Executive Orders.” Dkt. # 98 at 5. 21 Despite those claims—which remain live, and are otherwise proper bases for discovery— 22 Defendants insist that the Court’s order denying Defendants’ motion to dismiss somehow 23 narrowed this case to CARRP and CARRP alone. But that, too, is a mischaracterization. In its 24 denial of Defendants’ motion to dismiss, the Court noted Plaintiffs’ claims relating to the 25 Executive Orders and the extreme vetting policies that would be implemented pursuant to them. 26 See Dkt. # 69 at 3-5. And in rejecting Defendants’ argument that Plaintiffs had suffered no PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 23 & 24 (No. 2:17-cv-00094-RAJ) – 6 137830361.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 8 of 18 1 injury in fact relating to their challenges to the Executive Orders (e.g., Claims One and Two), the 2 Court explained as follows: 3 Furthermore, even if E.O. 13780 does not suspend the applications, Plaintiffs allege that CARRP or another “extreme vetting” program, independent of E.O. 13780, suspended Plaintiffs’ applications or will suspend applications of the putative class, and that such suspension was unlawful. This is sufficient to survive a motion to dismiss. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Id. at 12-13 (footnote omitted). In other words, rather than narrow Plaintiffs’ “injury in fact” to only the allegations about CARRP, the Court expressly considered the allegations concerning any other extreme vetting program that may be implemented. Defendants are therefore incorrect in asserting that the Court’s order narrowed this case to only CARRP. In sum, Plaintiffs are entitled to discovery concerning the Executive Orders and any extreme vetting program that the government may be implementing pursuant to those orders. Defendants should either provide alternative custodians concerning documents they assert may be subject to the Executive privilege, or withdraw their assertion of that privilege. B. Responding Party’s Response With respect to RFP No. 23, Defendants object to the Court’s consideration of this issue in the context this LCR 37(a)(2) expedited joint motion on two grounds. First, Defendants have never consented to the use of this procedure to address the RFP No. 23 issue. Second, Defendants believe that the RFP No. 23 issue is not yet ripe for judicial decision, as it may benefit from additional discussion between the parties. By its terms, the LCR 37(a)(2) expedited joint motion procedure is only appropriate where both parties consent to its use. LCR 37(a)(2). Defendants have not consented to the use of that procedure to resolve the RFP No. 23 issue presented here by Plaintiffs. As noted, the parties met and conferred on the question of alternate custodians and non-custodial sources of discovery, pursuant to the Court’s Oct. 19, 2017 order, Dkt. No. 98. During those discussions, it became apparent that the parties disagreed on the proper scope of discovery related to “extreme PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 23 & 24 (No. 2:17-cv-00094-RAJ) – 7 137830361.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 9 of 18 1 vetting.” Given that Defendants’ ability to identify alternate custodians and non-custodial 2 sources of “extreme vetting”-related discovery depends on a common understanding of the scope 3 of such discovery, Defendants’ counsel proposed submitting that question to the Court pursuant 4 to LCR 37(a)(2). Plaintiffs’ counsel agreed and said they would take the role of moving party. 5 Subsequently, when Plaintiffs submitted their portion of the present document to 6 Defendants, Defendants were surprised to discover that Plaintiffs had included the RFP No. 23 7 issue in the submission. Defendants were surprised because Defendants’ counsel had proposed 8 the use of the LCR 37(a)(2) procedure solely to resolve the scope-of-discovery issue. After 9 consultations between the Defendant agencies and their counsel, Defendants asked Plaintiffs to 10 withdraw the RFP No. 23 issue from this submission. Defendants told Plaintiffs both that they 11 had not consented to the use of the LCR 37(a)(2) process for the RFP No. 23 issue, and that they 12 believed further discussion between the parties was needed before that issue was ripe for judicial 13 consideration. Plaintiffs’ counsel refused to remove the RFP No. 23 issue from this submission. 14 Defendants respectfully submit that, as they do not consent (and have never consented) to 15 the use of the LCR 37(a)(2) expedited joint motion procedure for the RFP No. 23 issue, it would 16 be improper for the Court to decide that issue in the context of this submission. Further, 17 Defendants believe that, before that issue would be ripe for judicial resolution, the parties should 18 conduct further discussions. For example, Plaintiffs argue above that Defendants should be 19 required to “conduct a forensically sound search” for responsive documents, yet the parties have 20 never discussed precisely what efforts would satisfy Plaintiffs in that regard. If Plaintiffs 21 disagree that further discussions are required before seeking judicial intervention on that issue, 22 then they are, of course, free to file a motion to compel. What they should not be permitted to 23 do, though, is use the LCR 37(a)(2) expedited joint motion procedure, which requires mutual 24 consent and involves a shortened response period, where Defendants do not consent. 25 26 PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 23 & 24 (No. 2:17-cv-00094-RAJ) – 8 137830361.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 10 of 18 1 With respect to RFP No. 24, there exists a fundamental disagreement about the proper 2 scope of discovery into EO-related matters. As this Court previously noted, “[t]he main thrust of 3 this case is the legality of CARRP.” Dkt. No. 15, at 15. Plaintiffs’ original complaint challenged 4 only CARRP. Dkt. No. 1. Then, after the President issued the First and Second EOs, Plaintiffs 5 twice amended their complaint to add allegations that the EOs would result in “extreme vetting” 6 measures that would “expand CARRP,” Dkt. 47 at ¶ 16, and sanction a “major expansion of 7 CARRP,” id. at ¶ 18. Dkt. Nos. 17, passim, 47, passim. Almost every mention of “extreme 8 vetting” in the Second Amended Complaint (“SAC”) is part of the phrase “CARRP (or a 9 successor ‘extreme vetting’ program),” or some very similar formulation. Dkt. No. 47 at ¶¶ 19- 10 21, 25-28, 141, 160, 173, 196, 217, 234, 237, 241, 243, 244, 247, 263 (emphasis added). 11 Likewise, in Plaintiffs’ Prayer for Relief, every mention of “extreme vetting” is part of the 12 phrase “CARRP or any successor ‘extreme vetting’ program.” Id. at Prayer for Relief, Nos. 9-12 13 (emphasis added). 14 Shortly after filing the SAC, Plaintiffs filed a motion for class certification. Dkt. No. 49. 15 In that motion, Plaintiffs asserted that a class action was appropriate to challenge “CARRP and 16 any other successor ‘extreme vetting’ program.” Id. at 3 (emphasis added). Further, in defining 17 both the classes that the Plaintiffs sought to certify, Plaintiffs included the condition that the 18 individual was “subject to CARRP or a successor ‘extreme vetting’ program.” Id. (emphasis 19 added). As well, Plaintiffs argued in their class certification motion that “to the extent any 20 ‘extreme vetting’ policy developed pursuant to the Second EO expands or continues CARRP, it 21 will suffer from the same legal deficiencies as CARRP itself.” Id. at 7-8 (emphasis added). 22 Defendants moved to dismiss the SAC, arguing that Plaintiffs lacked standing to bring 23 the claims in counts 1-3, 5, and 6 (all of which concern the alleged indefinite suspension of 24 adjudication of Plaintiffs’ immigration benefit applications pursuant to the EOs), and that 25 Plaintiffs had failed to allege sufficient facts to establish they had suffered any injury from the 26 provisions of sections 4 and 5 of the Second EO. Dkt. No. 56. PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 23 & 24 (No. 2:17-cv-00094-RAJ) – 9 137830361.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 11 of 18 1 The Court declined to dismiss those claims, and Defendants do not seek to re-litigate 2 those issues. In denying Defendants’ motion to dismiss the “extreme vetting”-related counts of 3 the SAC, however, the Court narrowly construed those claims—in order to avoid the standing, 4 ripeness, and adequacy-of-the-pleadings problems identified by Defendants—to focus on 5 possible actions Defendants might take pursuant to the EOs “that would embody CARRP in all 6 but name.” Dkt. No. 69, at 15 (emphasis added). 7 Plaintiffs now seek “[a]ll Documents referring or relating to “extreme vetting” or any 8 other screening, vetting, or adjudication program, policy, or procedure connected to the First or 9 Second EOs.” Plaintiffs’ First Requests for Production to Defendants (“Plaintiffs’ First RFP”), 10 at 15 (RFP No. 24) (emphasis added). Plaintiffs’ First RFP does not define “extreme vetting,” 11 nor is that a phrase used in either of the EOs. 12 In response to other requests for production, Defendants have produced to Plaintiffs 13 CARRP policy documents. Further, Defendants have informed Plaintiffs that efforts to 14 implement the EOs have not involved changing, modifying, or updating CARRP policy, that 15 neither of the EOs has impacted the development, adoption, review, or revision of CARRP, and 16 that any policy, program, or effort that supports implementation of the executive orders is 17 unrelated and distinct from CARRP. See Farnam Decl., Dkt. No. 94-9, at ¶¶ 8-10. Having failed 18 to find any policy of discrimination under CARRP, Plaintiffs now insist on an unbounded fishing 19 expedition into anything related to the EOs, regardless of its relationship to CARRP, and 20 regardless of whether they have standing to challenge an Executive Order that has not affected 21 them. 22 In response to RFP No. 24, Defendants adopted a limiting construction—limiting it to 23 documents relating to programs, policies, or procedures of national applicability for screening, 24 vetting, or adjudicating adjustment-of-status or naturalization applications that are intended to 25 expand or modify CARRP such that they would embody CARRP in all but name. This 26 construction is consistent with the class definitions and with the Court’s ruling on the motion to PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 23 & 24 (No. 2:17-cv-00094-RAJ) – 10 137830361.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 12 of 18 1 dismiss that “[t]he main thrust of this case is the legality of CARRP,” but that Plaintiffs’ 2 “extreme vetting” claims could to go forward (at the motion-to-dismiss stage) because they 3 include allegations of “a possible future and unlawful program that would embody CARRP in all 4 but name.” Dkt. No. 69, at 15 (emphasis added). In reaching this decision, the Court relied on 5 Plaintiffs’ own statements that the Second EO “sanctions a major expansion of the existing 6 CARRP program,” and that Plaintiffs’ “reference to ‘CARRP’ incorporates any similar non- 7 statutory and sub-regulatory successor vetting policy, including pursuant to Sections 4 and 5 of 8 the Second EO.” Id. at 8 n.2 (quoting Dkt. No. 47 at ¶¶ 18, 19 n.1) (emphasis added). 9 In Defendants’ view, actions they may take pursuant to the EOs that neither seek to 10 modify CARRP nor implement new measures targeted at substantially the same sub-population 11 of immigrant benefit applicants now subject to CARRP are not at issue in this case, have not 12 been adequately pleaded, and raise serious standing and ripeness concerns. Such actions—e.g. 13 baseline measures that apply across-the-board to all immigration benefit applications—are not 14 alleged by Plaintiffs in the SAC, and the Court did not construe the SAC in so broad a manner in 15 its ruling on Defendants’ motion to dismiss. Consequently, discovery into Defendants’ actions 16 pursuant to the EOs that are not related to CARRP or a similar, successor program, if any, is not 17 within the proper scope of discovery in this case. 18 After meeting and conferring about RFP No. 24, it appears Plaintiffs understand “extreme 19 vetting,” as used by them in the SAC and RFP No. 24, to cover any action taken or contemplated 20 by Defendants in carrying out sections 4 and 5 of the Second EO, regardless of whether it is 21 related to CARRP (or targets a sub-population of immigration benefit applicants substantially 22 similar to those that CARRP covers). Defendants respectfully submit that such an understanding 23 of the breadth of RFP No. 24 (and of the claims at issue in this case) ignores the limiting 24 construction of the complaint that the Court adopted in its ruling on Defendants’ motion to 25 dismiss—a construction the Court presumably adopted to avoid standing, ripeness, adequacy-of- 26 PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 23 & 24 (No. 2:17-cv-00094-RAJ) – 11 137830361.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 13 of 18 1 the-pleadings, and class certification issues that would otherwise be present in the absence of 2 such a limiting construction. 3 The scope of discovery into “extreme vetting” under the EOs is properly limited to 4 programs, policies, or procedures of national applicability for screening, vetting, or adjudicating 5 adjustment-of-status or naturalization applications that are intended to expand, modify or 6 substitute for CARRP such that they would embody CARRP in all but name. Defendants, 7 therefore, respectfully request the Court to issue an order so limiting the scope of discovery into 8 “extreme vetting” under the First and Second EOs. 9 C. Moving Party’s Reply 10 First, Defendants assert that they did not “consent” to including RFP 23 in this 11 submission. That is inaccurate.3 The Court’s order on Plaintiffs’ motion to compel made clear 12 that, with respect to both RFPs 23 and 24, the parties were to confer within 30 days on 13 alternative custodians that may obviate or avoid the need to address Defendants’ invocation of 14 executive privilege. Dkt. # 98 at 5. The parties’ joint status report on those discussions makes 15 clear that the parties did confer on alternative custodians, but agreed that the Court must resolve 16 the parties’ “dispute regarding the appropriate scope of Plaintiffs’ discovery related to the First 17 and Second EOs.” Dkt. # 101 at 1; see also Dkt. # 101-1 (Nov. 10, 2017, Perez Letter to White 18 re EO Discovery). The parties jointly agreed to submit this issue to the Court. Id. at 2. Thus, 19 resolving this prerequisite issue addresses both requests and the parties’ agreement to utilize 20 LCR 37 necessarily encompassed both RFPs. 21 If Defendants are right that the alternative custodians related to RFP 23 is not at issue 22 here, then Defendants are in violation of the Court’s October 19, 2017 Order (Dkt. # 98) because 23 they have refused to provide alternative custodians for RFP 23. Moreover, the parties have 24 adequately conferred about RFP 23. The parties conferred before Plaintiffs filed their initial 25 26 3 Notably, per LCR 37, Plaintiffs sent Defendants their moving argument on Monday afternoon, November 27. Defendants’ response was due back to Plaintiffs on Monday, December 4. Defendants waited until 6 p.m. EST on Friday, December 1, to inform Plaintiffs of their view that RFP 23 should not be included in this submission. PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 23 & 24 (No. 2:17-cv-00094-RAJ) – 12 137830361.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 14 of 18 1 motion to compel—which included RFP 23. And pursuant to the Court’s order, the parties 2 conferred again regarding alternative custodians (which Defendants refuse to provide). See Dkt. 3 #101 and 101-1. Nevertheless, Defendants now suggest (for the first time) that the parties should 4 confer about a search protocol; but noticeably absent is any identification of alternative 5 custodians, even though any protocol would be dependent on what custodial sources Defendants 6 propose to use. And, on the merits, Plaintiffs should not be required to take Defendants at their 7 word that there is no connection between CARRP and any “extreme vetting” being implemented 8 under the EOs—that is what discovery is designed to adduce. Defendants must identify 9 alternative custodians, and then conduct an actual search for documents; but Defendants refuse to 10 do either. 11 As for RFP 24, Defendants appear to be re-litigating their motion to dismiss, and 12 mischaracterizing the Court’s order denying their motion. In effect, Defendants are arguing that 13 the Court’s order on Defendants’ motion to dismiss implicitly dismissed a significant portion of 14 Plaintiffs’ case—and based on that implicit dismissal, Defendants need not provide the discovery 15 at issue in RFPs 23 and 24. Defendants are incorrect. In denying Defendants’ motion to dismiss, 16 at no point did the Court adopt a “limiting construction of the complaint” that somehow 17 dismissed all claims not strictly related to CARRP. As outlined above, the Court expressly 18 considered Defendants’ standing and injury-in-fact arguments in declining to dismiss claims I, II, 19 III, V, and VI in the Second Amended Complaint. Dkt. # 47. 20 Taken together, the Court ordered Defendants to do something they refuse to do: provide 21 alternative custodians in response to RFPs 23 and 24 that might obviate their assertion of the 22 Executive Privilege. Plaintiffs respectfully request that the Court reject Defendants’ attempt to 23 use this discovery dispute to significantly narrow Plaintiffs’ case by implicitly dismissing claims 24 the Court already declined to dismiss months ago. 25 26 PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 23 & 24 (No. 2:17-cv-00094-RAJ) – 13 137830361.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 15 of 18 1 CERTIFICATION 2 I certify that the full response by the responding party has been included in this 3 submission, and that prior to making this submission the parties conferred to attempt to resolve 4 this discovery dispute in accordance with LCR 37(a). 5 6 DATED: 7 8 9 10 11 s/ David A. Perez David A. Perez #43959 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: DPerez@perkinscoie.com 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 23 & 24 (No. 2:17-cv-00094-RAJ) – 14 137830361.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 16 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 DATED: December 8, 2017 s/Jennifer Pasquarella (admitted pro hac vice) s/Sameer Ahmed (admitted pro hac vice) ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles, CA 90017 Telephone: (213) 977-5236 Facsimile: (213) 997-5297 jpasquarella@aclusocal.org sahmed@aclusocal.org s/Matt Adams s/Glenda M. Aldana Madrid Matt Adams #28287 Glenda M. Aldana Madrid #46987 Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98122 Telephone: (206) 957-8611 Facsimile: (206) 587-4025 matt@nwirp.org glenda@nwirp.org s/Stacy Tolchin (admitted pro hac vice) Law Offices of Stacy Tolchin 634 S. Spring St. Suite 500A Los Angeles, CA 90014 Telephone: (213) 622-7450 Facsimile: (213) 622-7233 Stacy@tolchinimmigration.com s/Hugh Handeyside Hugh Handeyside #39792 s/Lee Gelernt (admitted pro hac vice) s/Hina Shamsi (admitted pro hac vice) American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 Telephone: (212) 549-2616 Facsimile: (212) 549-2654 lgelernt@aclu.org hhandeyside@aclu.org hshamsi@aclu.org s/ Harry H. Schneider, Jr. Harry H. Schneider, Jr. #9404 s/ Nicholas P. Gellert Nicholas P. Gellert #18041 s/ David A. Perez David A. Perez #43959 s/ Laura K. Hennessey Laura K. Hennessey #47447 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: HSchneider@perkinscoie.com NGellert@perkinscoie.com KReddy@perkinscoie.com DPerez@perkinscoie.com LHennessey@perkinscoie.com s/Trina Realmuto (admitted pro hac vice) s/Kristin Macleod-Ball (admitted pro hac vice) Trina Realmuto Kristin Macleod-Ball American Immigration Council 100 Summer St., 23rd Fl. Boston, MA 02110 Tel: (857) 305-3600 Email: trealmuto@immcouncil.org Email: kmacleod-ball@immcouncil.org s/Emily Chiang Emily Chiang #50517 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Echiang@aclu-wa.org Attorneys for Plaintiffs 25 26 Perkins Coie LLP PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 23 & 24 (No. 2:17-cv-00094-RAJ) – 15 137830361.1 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 17 of 18 1 Dated: December 8, 2017 2 CHAD A. READLER Principal Deputy Assistant Attorney General Civil Division 3 4 5 6 7 WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation TIMOTHY M. BELSAN Deputy Chief, National Security & Affirmative Litigation Unit 8 9 10 11 /s/ Edward S. White 37 EDWARD S. WHITE Senior Litigation Counsel National Security & Affirmative Litigation Unit AARON R. PETTY JOSEPH F. CARILLI, JR. Trial Attorneys National Security & Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0868 Telephone: (202) 616-9131 E-mail: edward.s.white@usdoj.gov 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Perkins Coie LLP PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 23 & 24 (No. 2:17-cv-00094-RAJ) – 16 137830361.1 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103 Filed 12/08/17 Page 18 of 18 1 2 3 4 5 6 CERTIFICATE OF SERVICE The undersigned certifies that on the dated indicated below, I caused service of the foregoing PLAINTIFFS’ LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS 24 & 24 via the CM/ECF system that will automatically send notice of such filing to all counsel of record herein. DATED this 8th day of December, 2017, at Seattle, Washington. 7 By: s/David A. Perez David A. Perez #43959 Attorneys for Plaintiffs Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: DPerez@perkinscoie.com 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF SERVICE (No. 2:17-cv-00094-RAJ) – 1 137830361.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103-1 Filed 12/08/17 Page 1 of 4 1 THE HONORABLE RICHARD A. JONES 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 11 12 13 ABDIQAFAR WAGAFE, et al., on behalf of themselves and others similarly situated, Plaintiffs, v. DONALD TRUMP, President of the United States, et al., 14 Defendants. No. 2:17-cv-00094-RAJ ORDER ON LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS. 23 & 24 [PROPOSED] NOTE ON MOTION CALENDAR: DECEMBER 8, 2017 15 16 17 18 19 20 21 22 23 24 25 26 [PROPOSED] ORDER ON LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS. 23 & 24 (No. 2:17-cv-00094-RAJ) – 1 137675294.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103-1 Filed 12/08/17 Page 2 of 4 1 This matter came before the Court on a joint submission made to the Court pursuant to 2 the expedited procedure for resolution of discovery disputes set forth in Local Rule W.D. Wash. 3 LCR 37(a). The Court, having considered the parties' joint submission, and being fully advised in 4 the premises, now, therefore, it is 5 ORDERED as follows with respect to each discovery request in dispute: 6 Request for Production No. 23 7 Within ____ days of this Order Defendants shall propose alternative custodians and non- 8 custodial sources of documents potentially responsive to this Request No. 23, or withdraw their 9 assertion of Executive Privilege. 10 IT IS FURTHER ORDERED that within ____ days of this Order, Defendants shall 11 search these alternate custodial and non-custodial sources and produce all resulting documents 12 that are responsive to Request for Production No. 23 propounded by Plaintiffs on August 1, 13 2017, or withdraw their assertion of Executive Privilege. 14 Request for Production No. 24 15 Within ____ days of this Order Defendants shall propose alternative custodians and non- 16 custodial sources of documents potentially responsive to this Request No. 24, or withdraw their 17 assertion of Executive Privilege. 18 IT IS FURTHER ORDERED that within ____ days of this Order, Defendants shall 19 search these alternate custodial and non-custodial sources and produce all resulting documents 20 that are responsive to Request for Production No. 24 propounded by Plaintiffs on August 1, 21 2017, or withdraw their assertion of Executive Privilege. 22 23 DATED this ___________ day of ______________________, 2017. 24 25 HONORABLE RICHARD A. JONES UNITED STATES DISTRICT JUDGE 26 [PROPOSED] ORDER ON LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS. 23 & 24 (No. 2:17-cv-00094-RAJ) – 2 137675294.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103-1 Filed 12/08/17 Page 3 of 4 1 2 DATED this 8th day of December, 2017. 3 Presented by: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 s/Jennifer Pasquarella (admitted pro hac vice) s/Sameer Ahmed (admitted pro hac vice) ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles, CA 90017 Telephone: (213) 977-5236 Facsimile: (213) 997-5297 jpasquarella@aclusocal.org sahmed@aclusocal.org s/Matt Adams s/Glenda M. Aldana Madrid Matt Adams #28287 Glenda M. Aldana Madrid #46987 Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98122 Telephone: (206) 957-8611 Facsimile: (206) 587-4025 matt@nwirp.org glenda@nwirp.org s/Stacy Tolchin (admitted pro hac vice) Law Offices of Stacy Tolchin 634 S. Spring St. Suite 500A Los Angeles, CA 90014 Telephone: (213) 622-7450 Facsimile: (213) 622-7233 Stacy@tolchinimmigration.com s/Hugh Handeyside Hugh Handeyside #39792 s/Lee Gelernt (admitted pro hac vice) s/Hina Shamsi (admitted pro hac vice) American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 Telephone: (212) 549-2616 Facsimile: (212) 549-2654 lgelernt@aclu.org hhandeyside@aclu.org hshamsi@aclu.org s/ Harry H. Schneider, Jr. Harry H. Schneider, Jr. #9404 s/ Nicholas P. Gellert Nicholas P. Gellert #18041 s/ David A. Perez David A. Perez #43959 s/ Laura K. Hennessey Laura K. Hennessey #47447 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: HSchneider@perkinscoie.com NGellert@perkinscoie.com KReddy@perkinscoie.com DPerez@perkinscoie.com LHennessey@perkinscoie.com s/Trina Realmuto (admitted pro hac vice) s/Kristin Macleod-Ball (admitted pro hac vice) Trina Realmuto Kristin Macleod-Ball American Immigration Council 100 Summer St., 23rd Fl. Boston, MA 02110 Tel: (857) 305-3600 Email: trealmuto@immcouncil.org Email: kmacleod-ball@immcouncil.org s/Emily Chiang Emily Chiang #50517 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Echiang@aclu-wa.org Attorneys for Plaintiffs [PROPOSED] ORDER ON LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS. 23 & 24 (No. 2:17-cv-00094-RAJ) – 3 137675294.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 103-1 Filed 12/08/17 Page 4 of 4 1 CERTIFICATE OF SERVICE 2 3 The undersigned certifies that on the dated indicated below, I caused service of the 4 foregoing [PROPOSED] ORDER ON LCR 37 SUBMISSION REGARDING REQUESTS FOR 5 PRODUCTION NOS. 23 & 24 via the CM/ECF system that will automatically send notice of 6 such filing to all counsel of record herein. 7 DATED this 8th day of December, 2017, at Seattle, Washington. 8 s/David A. Perez David A. Perez #43959 Attorneys for Plaintiffs Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: LHennessey@perkinscoie.com 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF SERVICE (No. 2:17-cv-00094-RAJ) – 1 137675294.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000