Case 2:17-cv-00094-RAJ Document 116 Filed 02/16/18 Page 1 of 7 The Honorable Richard A. Jones 1 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 No. 2:17-cv-00094-RAJ PLAINTIFFS’ STATUS REPORT RE PRODUCTION DEADLINES Defendants. 16 17 After the hearing on February 8, 2018, the Court ordered the parties to confer about the 18 outstanding issues relating to the current discovery dispute. During that hearing, Plaintiffs 19 outlined a proposal to the Court and to Defendants, which included a specific production 20 timeline through May 2018. That proposal was as follows: 21 a. Defendants would apply the search terms, date ranges, and custodians outlined in 22 Plaintiffs’ February 6, 2018, submission to the Court. In exchange for doing so, Plaintiffs 23 would agree to the production timelines originally proposed by Defendants in an earlier 24 offer: 25 b. For documents responsive to Plaintiffs’ first discovery requests, except for RFP 24, 26 Defendants will produce all documents, in rolling productions, between March 12, 2018 27 and April 23, 2018. 28 PLAINTIFFS’ STATUS REPORT - 1 (2:17-cv-00094-RAJ) 138614464.1 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 116 Filed 02/16/18 Page 2 of 7 1 c. For documents responsive to Plaintiffs’ second discovery requests (RFPs 40-44), and 2 RFP 24, Defendants will produce all documents, in rolling productions, between April 3 23, 2018 and May 28, 2018. 4 5 On February 9, the day after the in-person hearing, Plaintiffs put their proposal in writing 6 and sent it to Defendants. Declaration of David A. Perez (“Perez Decl.”), Ex. A (bottom e-mail). 7 As this e-mail exchange shows, Plaintiffs repeatedly checked in with Defendants to get a 8 counterproposal in advance of the February 13 deadline. See id. (Feb. 13 Perez e-mail to White 9 at 1:36 p.m. PST, “We need to review the draft you told us you’d circulate as soon as 10 possible. We are less than 90 minutes from the filing deadline.”). Defendants sent their 11 feedback on Plaintiffs’ proposal less than an hour before that deadline, excluding any feedback 12 on production dates. Id. Without the opportunity to meaningfully confer about the production 13 timelines—despite the Court’s explicit order for “specific dates and timelines”—the parties 14 submitted a joint status update over an hour late. Dkt. 114. In that status report, Plaintiffs 15 reiterated the proposal they had laid out the week before. In that same status report Defendants 16 asked for more time to submit a report on the production schedule, and promised to provide a 17 status update on the production schedule by February 16. Id. 18 At the hearing the next day, February 14, Plaintiffs reiterated their proposal, and the 19 Court noted on the record that it was inclined to accept Plaintiffs’ proposal. The Court ordered 20 the parties to submit a status report by 2 p.m. PST on Friday, February 16. That same day, 21 Plaintiffs once again contacted Defendants asking for their proposal. Here is what Plaintiffs 22 wrote: We don’t want to be in a position where we submit something to the Court late again. You have our proposal regarding the production timelines. Please send us your proposal by end of day tomorrow (Thursday). That will allow us time to consider it, and get on the phone with you Friday morning to discuss ways to come to an agreement before the 2 p.m. PST deadline. 23 24 25 26 By 11 a.m. PST on Friday, we will draft up a status report that reflects what we know at that time, so that it is ready in time for 27 28 PLAINTIFFS’ STATUS REPORT - 2 (2:17-cv-00094-RAJ) 138614464.1 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 116 Filed 02/16/18 Page 3 of 7 the deadline. If we need to file our own status update to meet the deadline, we will do that. 1 2 Perez Decl., Ex. A (Feb. 14 e-mail to White). The night before the parties’ update was due, 3 Defendants wrote that they “do not have a position to communicate to [Plaintiffs] on either 4 [Plaintiff’s] proposal or a counter-proposal from [Defendants].” Id. Rather than send a proposal, 5 or provide feedback on Plaintiffs’ proposal, Defendants wrote they instead were working on 6 witness declarations outlining “the challenges” Defendants would face in meeting Plaintiffs’ 7 proposed schedule. Id. (Feb. 15 White e-mail to Perez). 8 Even today, hours before this deadline, Defendants were still unable to provide any 9 feedback on Plaintiffs’ proposal. Even though Plaintiffs asked for a response no later than 11 10 a.m., by 11:12 a.m. Defendants wrote that they “are unable to agree to the Plaintiffs’ proposed 11 timelines . . . . [and] are unable, at this time, to offer a counter-proposal.” Perez Decl., Ex. B. 12 Finally, at 12:05 p.m., Defendants provided one of the declarations purporting to outline the 13 burdens they face, leaving Plaintiffs no time to digest its contents or discuss with our co-counsel 14 or clients, much less discuss it telephonically with Defendants. The Court ordered the parties to 15 confer, and Plaintiffs have done their best to do that; but for their part, Defendants have simply 16 made this impossible. In other words, to the extent the Court has ordered the parties to confer, 17 Defendants have violated that order repeatedly over the past week. 18 This has gone on for too long. Plaintiffs request that the Court issue a clear and 19 unequivocal order compelling Defendants to produce documents pursuant to Plaintiffs’ proposed 20 timelines. Whatever burdens Defendants are now trying to document through witness 21 declaration cannot outweigh the fact that (a) these discovery requests have been pending since 22 August 1, 2017; (b) Plaintiffs’ proposal gives them through May 2018 to produce responsive 23 documents, which is ten months from the service date of these RFPs; and (c) any last minute 24 production problems Defendants assert they are facing are the result of their own document 25 collection and production protocol choices and “delay until the last minute” litigation strategy. 26 Simply put, Defendants have made a strategic choice not to do anything until they are 27 ordered to do so. That strategic choice should come with a practical cost: here, that cost should 28 be an order that they meet the deadlines outlined in Plaintiffs’ proposal. PLAINTIFFS’ STATUS REPORT - 3 (2:17-cv-00094-RAJ) 138614464.1 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 116 Filed 02/16/18 Page 4 of 7 1 To be clear, Plaintiffs’ proposal is reasonable, their witness declarations notwithstanding. 2 It is a proposal based on dates that Defendants proposed, and still works out to 10 months 3 between the moment Plaintiffs served these requests and Defendants’ production. The notion 4 that Defendants need still more time is, under these circumstances, absurd. The Court ordered 5 alternative custodians back on October 19, and Defendants stalled; the Court reiterated that order 6 on January 10, and Defendants continued to stall. Throughout that time Defendants could have 7 made their situation easier by being more diligent: collecting custodial and non-custodial sources 8 and preparing them for production, even before the Court’s order on January 10. Or using the 9 time since January 10 to collect, image, and begin producing the non-custodial sources 10 Defendants knew they would have to produce either way. But instead they stalled, and are now 11 asking for more time than they have been offered and find themselves in gross violation of this 12 Court’s January 10 Order. That January 10 Order set a deadline of January 31 for the parties to 13 confer on alternative custodians and document sources, a deadline of February 12 for Defendants 14 to conduct their search, and a deadline of March 14 for the production of responsive documents. 15 Defendants have breached the first two of these deadlines and are on pace to breach the third. 16 Plaintiffs’ proposal is also generous. Plaintiffs are not aware of any Civil Rule—or even 17 any interpretation of any rule—that permits a party more than 10 months to respond to routine 18 discovery requests. Plaintiffs respectfully request that the Court order Defendants to produce 19 these documents on the proposal Plaintiffs outlined in their submission. 20 Three additional observations bear emphasis: 21 1. Defendants agreed to the Case Schedule deadlines in the joint status report last 22 summer and should have known then, at least to a general extent, how long 23 discovery would take them. Their open-ended request to push the deadlines back 24 months further without giving us any concrete deadlines is simply unreasonable. 25 The Court has said several times that this case needs firm deadlines, and 26 Defendants must abide by those deadlines. Plaintiffs agree. 27 2. Any production schedule that the Court orders should be contingent on a 28 corresponding adjustment to the Case Schedule deadlines. At this point, Plaintiffs PLAINTIFFS’ STATUS REPORT - 4 (2:17-cv-00094-RAJ) 138614464.1 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 116 Filed 02/16/18 Page 5 of 7 1 believe a trial date in February 2019 should provide the parties enough time to 2 complete discovery and prepare this case for trial—assuming Defendants’ 3 reasonable cooperation on discovery. After the Court has ordered a production 4 schedule, Plaintiffs suggest that the Court order the parties to meaningfully confer 5 on amending the case schedule in a manner that would move this case along for a 6 February 2019 trial. 7 3. And finally, it’s important not to lose sight of the big picture here: Plaintiffs and 8 class members have suffered from CARRP’s illegal and unconstitutional program 9 for years, and the government’s delays in discovery causes further harm as their 10 immigration benefit applications continued to be delayed and denied unlawfully. 11 That harm is accentuated by the other extreme vetting programs about which 12 Defendants have prevented discovery. These delays have real-world 13 consequences far more significant than the logistical hurdles necessary for a party 14 to comply with its discovery obligations. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ STATUS REPORT - 5 (2:17-cv-00094-RAJ) 138614464.1 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 116 Filed 02/16/18 Page 6 of 7 1 Dated: February 16, 2018 2 Respectfully submitted by, 3 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 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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/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/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/ 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 27 28 PLAINTIFFS’ STATUS REPORT - 6 (2:17-cv-00094-RAJ) 138614464.1 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 116 Filed 02/16/18 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 PLAINTIFFS’ STATUS REPORT RE PRODUCTION TIMELINES via the CM/ECF 4 system that will automatically send notice of such filing to all counsel of record herein. 5 DATED this 16th 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 PLAINTIFFS’ STATUS REPORT - 7 (2:17-cv-00094-RAJ) 138614464.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.35.8000 Fax: 206.359.9000