Case 2:17-cv-00094-RAJ Document 104 Filed 01/10/18 Page 1 of 5

THE HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ABDIQAFAR WAGAFE, et al., on
behalf of themselves and others
similarly situated,
Plaintiffs,

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v.
DONALD TRUMP, President of the
United States, et al.,
Defendants.

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ORDER-1

No. 2:17-cv-00094-RAJ
ORDER ON LCR 37 SUBMISSION
REGARDING REQUESTS FOR
PRODUCTION NOS. 23 & 24

 Case 2:17-cv-00094-RAJ Document 104 Filed 01/10/18 Page 2 of 5

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This matter comes before the Court on a joint submission made to the Court

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pursuant to the expedited procedure for resolution of discovery disputes set forth in Local
Rule W.D. Wash. LCR 37(a). Dkt. # 103.
I.

BACKGROUND
On October 19, 2017, the Court granted in part and denied in part Plaintiffs’

motion to compel production of documents. Dkt. # 98. The Court required the
Government to produce a privilege log for any documents related to the Executive Orders
over which it wished to assert a deliberative-process privilege. Id. at 5. The Court
further ordered the parties to meet and confer to discuss whether alternative custodians or
non-custodial sources were available to produce documents relating extreme vetting
programs to two Executive Orders. Id.
The parties met and conferred and reached an impasse. Dkt. # 103 at 2. The
disputed discovery requests that are the subject of this Rule 37 Joint Motion are
referenced below:
REQUEST FOR PRODUCTION NO. 23: All Documents

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referring or relating to any consideration of or reference to

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CARRP during the planning, drafting, or issuing of the First

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and Second EOs.

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REQUEST FOR PRODUCTION NO. 24: All Documents

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referring or relating to “extreme vetting” or any other

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screening, vetting, or adjudication program, policy, or

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procedure connected to the First or Second EOs. This request

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includes, but is not limited to, programs that reference, relate

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to, or expand upon CARRP.

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ORDER-2

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II.

LEGAL STANDARD
The Court has broad discretion to control discovery. Hallett v. Morgan, 296 F.3d

732, 751 (9th Cir. 2002); see also Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828,
833 (9th Cir. 2011), In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). That
discretion is guided by several principles. Most importantly, the scope of discovery is
broad. A party must respond to any discovery request that is not privileged and that is
“relevant to any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in controversy,
the parties’ relative access to relevant information, the parties’ resources, the importance
of the discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).
III.

ANALYSIS

A. Request for Production No. 23 (“Request No. 23”)
Defendants contend that the dispute regarding Request No. 23 is premature and
should not be before this Court. Dkt. # 103 at 9. Specifically, Defendants argue that no
documents exist with regard to Request No. 23. Id. at 4. Defendants also argue that the
only issue they agreed to present to this Court is how the parties should understand the
scope of “extreme vetting”-related discovery. Id. at 8-9. Because Plaintiffs have
presented the alternative custodian/non-custodial issue to the Court, Defendants aver that
there is a disagreement on the scope of this Rule 37 Joint Motion and therefore it is
improperly before the Court. Id.
The Court disagrees with Defendants. In its prior Order, the Court ordered the
parties to discuss alternative custodians and non-custodial sources of information that
link any kind of “extreme vetting” program to the Executive Orders. Dkt. # 98 at 5.
Defendants now respond that they conferred internally regarding Request No. 23 only to
discover that CARRP was not referenced or considered in the drafting and adoption of

ORDER-3

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the two Executive Orders and therefore no discovery production is necessary, obviating
the need to discuss alternative custodians or non-custodial sources. Dkt. # 103 at 3.
To reach their conclusion, Defendants infer that they used a definition of “extreme
vetting” that may differ from the one used by Plaintiffs, suggesting that the parties need
to further meet and confer on the issue. Id. at 8-9. The Court does not accept this
response, in part due to the targeted nature of Request No. 23, which seeks documents
specifically related to CARRP. See id. at 4 (Request No. 23 seeks documents “referring
or relating to any consideration of or reference to CARRP”). Defendants’ argument that
the parties are facing a terminology misunderstanding is therefore disingenuous.
In addition, the Court disagrees that the issue is premature or that the motion is
improper due to a lack of mutual consent. Even if the Court were to find issue with the
parties’ mutual consent, then the remedy would be for Plaintiffs to file a motion to
compel. But Plaintiffs have already filed a motion to compel on this issue, and the Court
will not require Plaintiffs to file duplicitous motions to compel. See Dkt. # 91. The
scope of discovery is broad, and Plaintiffs are entitled to Defendants’ good faith review
of its records. See Dkt. # 103 at 3 (stating that USCIS official familiar with the agency’s
efforts responded, “to the best of their knowledge information, and belief” that neither
Executive Order impacted CARRP; Defendants do not contend that they searched or
reviewed any records).
The Court orders the parties to meet and confer within twenty-one (21) days from
the date of this Order to discuss alternative custodians, non-custodial sources, search
terms, and other means of review that Defendants will use to search for relevant
documents. Defendants shall conduct their search of the records within ten (10) days of
the parties’ meeting. Defendants will then have thirty (30) days to produce relevant
records, if any exist, to Plaintiffs or, in the alternative, to produce a privilege log.

ORDER-4

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B. Request for Production No. 24 (“Request No. 24”)
Defendants argue that the Court narrowly construed Plaintiffs’ “extreme vetting”related claims in its Order on the motion to dismiss. See Dkt. ## 103 at 11, 69 at 15.
Defendants contend that because the terms “extreme vetting” have been narrowed,
Plaintiffs’ Request No. 24 is too broad in its current form. Plaintiffs argue that
Defendants are attempting to “narrow[] this case to CARRP and CARRP alone.” Id. at 7.
The Court agrees, in part, with Defendants that “[t]he main thrust of this case is
the legality of CARRP.” Dkt. # 69 at 15. However, the scope of discovery is necessarily
broad, and Plaintiffs’ Request No. 24 is reasonably targeted at searching for evidence of
“extreme vetting” programs that “embody CARRP in all but name.” See Dkt. # 69 at 15.
The Court orders the parties to meet and confer within twenty-one (21) days from
the date of this Order to discuss search terms and other means of review, as well as
alternative custodians and non-custodial sources, if necessary, that Defendants will use to
search for relevant documents. Defendants shall conduct their search of the records
within ten (10) days of the parties’ meeting. Defendants will then have thirty (30) days to
produce relevant records, if any exist, to Plaintiffs or, in the alternative, to produce a
privilege log.

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Dated this 10th day of January, 2018.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER-5