Case 2:17-cv-00094-RAJ Document 114 Filed 02/13/18 Page 1 of 7 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 ABDIQAFAR WAGAFE, et al., Plaintiffs, 11 v. 12 13 UNITED STATES CITIZENSHIP AND 14 IMMIGRATION SERVICES, et al., 15 16 No. 2:17-cv-00094-RAJ JOINT STATUS REPORT ON COURT’S ORDER ON LCR 37 SUBMISSION REGARDING REQUESTS FOR PRODUCTION NOS. 23 & 24 Defendants. Plaintiffs and Defendants (“parties”), by and through undersigned counsel, submit this 17 joint status report pursuant to the Court’s February 9, 2018 Order, ECF No. 113, requiring a joint 18 status report on any agreement between the parties regarding the Court’s January 10, 2018 Order, 19 ECF No. 104. 20 1. RFPs 23 and 24: The parties have agreed in principle on the search and 21 collection methodology for Requests for Production (“RFP”) Nos. 23 and 24, contingent on the 22 issues identified infra ¶ 4. Defendants will apply the search terms to Headquarters of 23 Department of Homeland Security or U.S. Citizenship and Immigraton Services information 24 technology systems for potentially responsive records. This search will include each 25 custodian’s e-mails, individuals network drive(s),and computer hard drive(s), if any as 26 27 28 JOINT STATUS REPORT - 1 (2:17-cv-00094-RAJ) 138572418.3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.35.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 114 Filed 02/13/18 Page 2 of 7 1 designated in Appendix A and will identify potentially responsive documents from non- 2 custodial sources listed in Appendix A (attached hereto as Exhibit 1).1 3 a. Plaintiffs disagree with Defendants’ decision to limit their search to DHS 4 headquarters and USCIS. For example, Plaintiffs have filed a motion to 5 compel to compel production of documents from ICE. ECF No. 111. 6 Plaintiffs reserve the right to challenge Defendants’ limitations on their 7 search. 8 2. 9 Non-Custodial Sources: Defendants will submit a written certification regarding whether Defendants identified any additional DHS non-custodial sources not listed in 10 Appendix A by February 28, 2018. Plaintiffs believe that such a search should be expanded 11 should the Court rule in Plaintiffs’ favor regarding the dispute over the ICE custodians (e.g., 12 such decision will have to be expanded to non-custodial sources at ICE). Plaintiffs also reserve 13 the right to challenge Defendants’ position that other DHS subcomponents in addition to ICE 14 are not subject to search. But in the meantime, to the extent other non-custodial sources are 15 identified in agencies which Defendants have already agreed to search, or are later ordered to 16 search, such sources shall be included in Defendants’ discovery responses. 17 3. Presidential Transition Documents: Defendants agree that any non-privileged, 18 responsive documents that is an agency record under the Federal Records Act and under the 19 possession, custody, or control of the Headquarters of the Department of Homeland Security or 20 U.S. Citizenship and Immigration Services will be produced pursuant to Federal Rules of Civil 21 Procedure 26 and 34. 22 a. Again, Plaintiffs disagree that such a search should be limited to DHS 23 headquarters or USCIS, as explained above. Instead, Plaintiffs assert that 24 Defendants have a good faith obligation to fully search each custodians’ files to 25 determine whether any documents created during the Presidential Transition are 26 discoverable materials and/or agency records. Pursuant to the parties’ discussions 27 28 1 Although Defendants have agreed to certain search parameters in light of the Court’s prior rulings, Defendants maintain and preserve all objections. JOINT STATUS REPORT - 2 (2:17-cv-00094-RAJ) 138572418.3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.35.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 114 Filed 02/13/18 Page 3 of 7 1 during the hearing, Plaintiffs further assert that Defendants should identify those 2 custodians who also served on the transition team and clarify whether Defendants 3 believe such custodian(s) may have created or received responsive documents 4 during the transition which Defendants believe are outside their control (e.g., in 5 the control of the PETT). Defendants should disclose the e-mail address 6 associated with any such custodian that Defendants believe may have documents 7 responsive to Plaintiffs’ requests so that Plaintiffs can determine how and whether 8 to proceed in obtaining those documents (either from Defendants or from the 9 President-elect Transition Team). But for any documents a custodian has brought 10 over to any federal agency (i.e., not kept separate by the PETT), Defendants 11 should produce those documents on the production schedule outlined below, 12 pursuant to Defendants’ representations to the Court. 13 b. The parties would like the Court to clarify the scope of its order regarding 14 Defendants’ obligations with respect to identifying custodians who were also on 15 the Transition Team. Defendants take the position that they should not be 16 required to inquire or identify who worked for the President-Elect Transition 17 Team. 18 5. By February 16, 2018, the parties will provide a further status report to the Court 19 on whether the parties can reach an agreement on a production timeline for documents 20 responsive to RFP Nos. 23 and 24, Plaintiffs’ First Requests for Production to Defendants 21 (“First RFPs”), and Plaintiffs’ Second Requests for Production to Defendants (“Second 22 RFPs”). Defendants assert that they require additional time to determine a feasible timeline for 23 Defendants to produceany non-privileged, responsive documents. Plaintiffs have proposed the 24 following production timeline, contingent on the Court ordering an extension on the case 25 schedule deadlines: 26 a. For documents responsive to Plaintiffs’ first discovery requests, except for 27 RFP 24, Defendants will produce all documents, in rolling productions, 28 between March 12, 2018 through April 23, 2018. JOINT STATUS REPORT - 3 (2:17-cv-00094-RAJ) 138572418.3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.35.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 114 Filed 02/13/18 Page 4 of 7 1 b. For documents responsive to Plaintiffs’ second discovery requests, and RFP 2 24, Defendants will produce all documents, in rolling productions, between 3 April 23, 2018 and May 28, 2018. 4 5 A-Files: The parties agree that Defendants will produce copies of the named 6. Plaintiffs’ Alien Files by February 28, 2018. 6 a. Plaintiffs assert that such A-Files should be produced unredacted. 7 b. Defendants have clarified that they will produce non-privileged documents 8 9 contained in the A-Files. 7. Class List: 10 a. Defendants agree to a deadline for production of a copy of the list of potential 11 class members by March 5, 2018, but reserve the right to seek from the Court relief, as 12 may be determined to be necessary, concerning production of the class members list. 13 14 b. Plaintiffs believe that the full class list should be produced in unredacted form by March 5, 2018, pursuant to the Court’s October 19, 2017, Order. 15 16 The parties agree that the aforementioned agreement does not affect the parties’ abilities 17 to raise any objections to discovery, or seek any appropriate relief available, under the Federal 18 Rules of Civil Procedure. 19 20 21 Defendants also do not waive their ability to seek further review of this Court’s discovery orders, or reconsideration should circumstances change. Plaintiffs reserve the right to serve additional discovery requests, or ask for other 22 custodians and search terms based on Defendants’ discovery responses to Plaintiffs first and 23 second set of discovery requests. 24 25 26 27 28 JOINT STATUS REPORT - 4 (2:17-cv-00094-RAJ) 138572418.3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.35.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 114 Filed 02/13/18 Page 5 of 7 1 Dated: February 13, 2018 2 s/Jennifer Pasquarella (admitted pro hac vice) s/Sameer Ahmed (admitted pro hac vice) 3 ACLU Foundation of Southern California 1313 W. 8th Street 4 Los Angeles, CA 90017 5 Telephone: (213) 977-5236 Facsimile: (213) 997-5297 6 jpasquarella@aclusocal.org 7 sahmed@aclusocal.org 8 s/Matt Adams s/Glenda M. Aldana Madrid 9 Matt Adams #28287 10 Glenda M. Aldana Madrid #46987 Northwest Immigrant Rights Project 11 615 Second Ave., Ste. 400 Seattle, WA 98122 12 Telephone: (206) 957-8611 13 Facsimile: (206) 587-4025 matt@nwirp.org 14 glenda@nwirp.org 15 s/Hugh Handeyside 16 Hugh Handeyside #39792 s/Lee Gelernt (admitted pro hac vice) 17 s/Hina Shamsi (admitted pro hac vice) American Civil Liberties Union 18 Foundation 19 125 Broad Street New York, NY 10004 20 Telephone: (212) 549-2616 Facsimile: (212) 549-2654 21 lgelernt@aclu.org 22 hhandeyside@aclu.org hshamsi@aclu.org 23 s/Stacy Tolchin (admitted pro hac vice) 24 Law Offices of Stacy Tolchin 25 634 S. Spring St. Suite 500A Los Angeles, CA 90014 26 Telephone: (213) 622-7450 27 Facsimile: (213) 622-7233 Stacy@tolchinimmigration.com 28 JOINT STATUS REPORT - 5 (2:17-cv-00094-RAJ) 138572418.3 Respectfully submitted, 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 Counsel for Plaintiffs Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.35.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 114 Filed 02/13/18 Page 6 of 7 1 CHAD A. READLER Acting Assistant Attorney General 2 WILLIAM C. PEACHEY Director, District Court Section 4 Office of Immigration Litigation 3 5 TIMOTHY M. BELSAN 6 Deputy Chief, National Security & Affirmative Litigation Unit 7 8 9 /s/ Edward S. White EDWARD S. WHITE Senior Litigation Counsel, 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 Tel: (202) 616-9131 Fax: (202) 305-7000 Email: edward.s.white@usdoj.gov AARON R. PETTY Trial Attorney, National Security & Affirmative Litigation Unit 10 11 12 14 JOSEPH F. CARILLI, JR. Trial Attorney, National Security & Affirmative Litigation Unit 15 Counsel for Defendants 13 16 17 18 19 20 21 22 23 24 25 26 27 28 JOINT STATUS REPORT - 6 (2:17-cv-00094-RAJ) 138572418.3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.35.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 114 Filed 02/13/18 Page 7 of 7 CERTIFICATE OF SERVICE 1 2 The undersigned certifies that on the dated indicated below, I caused service of the 3 foregoing JOINT STATUS REPORT via the CM/ECF system that will automatically send notice 4 of such filing to all counsel of record herein. 5 DATED this 13th day of February, 2018, at Seattle, Washington. 6 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 27 28 JOINT STATUS REPORT - 7 (2:17-cv-00094-RAJ) 138572418.3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.35.8000 Fax: 206.359.9000 Case Document 114-1 Filed 02/13/18 Page 1 of 3 EXHIBIT 1 Custodians (as defined below) USCIS Management USCIS Leadership DHS Management DHS Leadership Custodians (as defined below) USCIS Leadership DHS Leadership Page 1 of 2 Present is the date of collection. However, pursuant to CR 26, Defendants shall supplement their production as appropriate. 138572637.1 1 Non-Custodial Sources USCIS Field Operations Directorate ECN sites relevant to Continuous Immigration Vetting and Expanded Interview efforts; USCIS Fraud Detection and National Security Directorate ECN sites relevant to Continuous Immigration Vetting and Expanded Interviews; USCIS National Benefits Center ECN sites relevant to Expanded Interviews; USCIS Field Operations Directorate share drive folders related to interview training; “13769,” “13780,” “Continuous Immigration Vetting,” “Extreme Vetting,” “Interview Expansion,” “Interview Waiver,” “Recurrent Vetting,” “Section 4,” “Section 5,” “Uniform Screening,” “Uniform Vetting,” “Wicklander,” “Enhanced Communication Course,” “Code 5,” (“ASC” AND “Identity Verification,”) (“Livescan” AND “Identity Verification,”) (“Application Support Center” AND “Identity Verification,”) ((“Protecting the Nation” OR “Foreign Terrorist Entry” OR “Executive Order” OR “EO”) AND (screen* OR vet* OR adjudicate* OR “national security” OR suspend* OR naturaliz* OR adjust* OR “green card”)) Search Terms Request for Production Number 24 (date range November 9, 2016 to present1) “CARRP,” “Controlled Application Review and Resolution Program,” “Articulable Link,” “Deconflict*,” “Known or Suspected Terrorist,” “KST,” “National Security Concern,” “National Security Indicator,” “Non National Security,” “Non-Known or Suspected Terrorist,” “Non-KST,” “NS Activities,” “NS Concern,” “NS Hit,” “NS Indicator” Search Terms Request for Production Number 23 (date range November 9, 2016 to March 6, 2017) Appendix A Wagafe, et al., v. Trump, et al., No. 2:17-cv-00094 (W.D. Wash.) Search and Collection Methodology RFP No. 23 and 24 Case 2:17-cv-00094-RAJ Document 114-1 Filed 02/13/18 Page 2 of 3 138572637.1 Page 2 of 2 DHS Management: Olivia Troye (Chief, Strategy, Policy, and Plans, Office of Intelligence and Analysis); Teresa Downey (Advisor, Office of Intelligence and Analysis); Frank Wuco (Executive Director, Executive Order Task Force); John Latta (Director, Screening Coordination Office, Office of Policy); Victoria Lester-Saura (Acting Principal Director, Screening Coordination Office, Office of Policy); Michael Scardaville (Principal Director and Senior Advisor, Information Sharing, Office of Policy); Briana Petyo (Chief Of Staff, Office of Policy); John Dermody (Attorney Advisor, Office of the General Counsel) DHS Leadership: John Kelly (Secretary); Elaine Duke (Acting Secretary and Deputy Secretary); Kirstjen Nielsen (Secretary and Chief of Staff); Joseph Maher (Acting General Counsel); Gene Hamilton (Senior Counselor to the Secretary); Chip Fulghum (Acting Deputy Secretary of Homeland Security) USCIS Management: Julie Farnam (Chief, Case Analysis Branch, Fraud Detection and National Security Directorate, formerly detailed to the USCIS Acting Director’s Office as a Senior Advisor); Vania Lockett (Special Assistant, Front Office, Fraud Detection and National Security Directorate); Teresa Downey (Chief, Screening Coordination Office, Fraud Detection and National Security Directorate); Christopher Heffron (Immigration Officer, Program Management Office, Field Operations Directorate, formerly Chief, Screening Coordination Office, Fraud Detection and National Security Directorate); Brett Rinehart (Chief, Program Management Office, Field Operations Directorate); Julie Spencer (Chief, Training Division, Field Operations Directorate); Brandi Blackburn (Assistant Center Director, National Benefit Center, Field Operations Directorate); Linda Dougherty (Chief, Adjustment and Naturalization Team, Service Center Operations); Albert Davis (Chief, Program Management Office, Fraud Detection and National Security Directorate); Lee Bowes (Acting Deputy Associate Director, Immigration Records and Identity Services) USCIS Leadership: Lori Scialabba (Acting Director); Tracy Renaud (Acting Deputy Director); Molly Groom (Acting Chief Counsel); Larry Levine (Acting Policy Director); Craig Symons, Carl Risch, and Kathy Neubel Kovarik (DHS transition beachhead team); Daniel M. Renaud (Associate Director of Field Operations); Donald Neufeld (Associate Director of Service Center Operations); Matthew D. Emrich (Associate Director of the Fraud Detection and National Security Directorate) Custodians USCIS Fraud Detection and National Security Directorate share drive folders related to Continuous Immigration Vetting; USCIS National Benefits Center share drive folders related to Expanded Interviews; USCIS Immigration Records and Identity Services Directorate ECN site pages relevant to ASC identity verification; and, Section of DHS Executive Order Task Force SharePoint site related to Section 5 of E.O. 13780 Wagafe, et al., v. Trump, et al., No. 2:17-cv-00094 (W.D. Wash.) Search and Collection Methodology RFP No. 23 and 24 Case 2:17-cv-00094-RAJ Document 114-1 Filed 02/13/18 Page 3 of 3