Case 2:17-cv-00094-RAJ Document 125 Filed 02/26/18 Page 1 of 14 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., 10 Plaintiffs, 11 12 13 v. 16 17 Defendants. In response to Defendants’ February 23, 2018, Status Report (Dkt. 124), Plaintiffs make four observations for the Court’s consideration. 1. Setting Aside RFPs 23 and 24, Defendants Have Yet to Produce Documents Responsive to Plaintiffs’ Other Discovery Requests. 18 19 PLAINTIFFS’ RESPONSE TO DEFENDANTS’ STATUS REPORT REGARDING PRODUCTION DEADLINES UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., 14 15 No. 2:17-cv-00094-RAJ The parties’ disputes concerning two requests for production, RFPs 23 and 24, should not 20 distract from the status of discovery more generally. With respect to the other 37 document 21 requests that Plaintiffs have served, Defendants previously indicated that their production should 22 be complete, or substantially complete, by March 5, 2018—which would be seven months after 23 Plaintiffs served those requests. Defendants also promised that leading up to that date, they 24 would be sending Plaintiffs rolling productions to avoid giving Plaintiffs a “document dump” on 25 March 5. Plaintiffs were already concerned about such a slow pace of production. Worse, 26 Defendants have not honored their commitments. PLAINTIFFS’ RESPONSE TO DEFENDANTS’ STATUS REPORT RE PRODUCTION DEADLINES (No. 2:17-cv-00094-RAJ) –1 138756974.2 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 125 Filed 02/26/18 Page 2 of 14 1 Defendants have made only five small productions in seven months: 2 Production Volume Date Number of Documents 3 DEF PROD VOL001 10/5/2017 214 4 DEF PROD VOL002 10/31/2017 868 DEF PROD VOL003 10/31/2017 122 DEF PROD VOL004 11/22/2017 221 DEF PROD VOL005 2/13/2018 80 5 6 7 8 9 Total: 1505 In the three months between November 22, 2017 and today, Defendants have produced only 80 documents total. And Defendants have claimed privilege with respect to 512 10 documents—meaning a third of Defendants’ production has been redacted or withheld based on 11 privilege. 1 12 Now, Defendants are refusing to tell Plaintiffs when they will produce documents and 13 complete their productions, despite numerous requests. Plaintiffs need to prepare to review what 14 Defendants have indicated will be a very large production by lining up staffing in advance to 15 review and code these documents. But Plaintiffs have been unable to prepare because 16 Defendants refuse to abide by timelines they previously provided. 17 2. Defendants’ Delays So Far, and Their Proposal for Even More Delays Are Unprecedented for Any Litigation. 18 19 20 21 22 23 24 25 26 The Court should consider the pace of Defendants’ production—1,500 document total, and only 80 since November 22, 2017—as it considers Defendants’ complaints about logistics and costs. Without acknowledging their slow pace, and without agreeing to an expedited production schedule to compensate for these past delays, Defendants now are asking for more Defendants have not served their privilege log for the 80-document production from February, so the percentage will rise once they reveal how many documents have been withheld on basis of claimed privilege over that production. It also is worth noting that a considerable percentage of the small number of documents produced by Defendants simply was a reproduction of documents that had been provided through FOIA litigation a few years ago in California. 1 PLAINTIFFS’ RESPONSE TO DEFENDANTS’ STATUS REPORT RE PRODUCTION DEADLINES (No. 2:17-cv-00094-RAJ) –2 138756974.2 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 125 Filed 02/26/18 Page 3 of 14 1 time. Remarkably, more than two weeks removed from an in-person hearing that lasted nearly 2 four hours—a hearing during which the Court emphasized numerous times that it wanted hard 3 and clear deadlines to move this case forward—Defendants still refuse to commit to a production 4 timeline and have signaled they will need at least an additional six months. 5 This is unreasonable. If discovery is as burdensome as Defendants now claim, 6 Defendants should have staffed the case correctly months ago to ensure the rolling productions 7 that they promised. If the discovery burden is as great as Defendants’ claim, Defendants should 8 have been making every effort for the past seven months to address it. Had they done so, they 9 would have been able to produce the vast majority of responsive documents. Because they have 10 not done so, they now seek to delay the entire case schedule. 11 Plaintiffs seriously question whether Defendants’ delays are driven by practical or 12 logistical burdens. Rather, Plaintiffs believe Defendants’ delays are part of a tactical decision to 13 avoid any scrutiny of CARRP and similar government Extreme Vetting Programs affecting the 14 adjudication of immigration benefit applications. The upshot of that tactical decision is that 15 Defendants have decided to take an unduly narrow approach to what is discoverable (forcing 16 otherwise unnecessary motions practice), simultaneously subjecting those documents falling 17 within their narrow view to an overly broad approach to what is privileged (slowing down the 18 production and forcing additional motions), and otherwise ignoring their discovery obligations. 19 This is a nationwide class action lawsuit implicating Plaintiffs’ constitutional and civil 20 rights relating to CARRP and similar Extreme Vetting Programs. This case is about how these 21 programs significantly harm Plaintiffs and the certified classes by illegally delaying and denying 22 their lawful permanent resident and citizenship applications. Delay in discovery benefits the 23 government and causes further harm to Plaintiffs as their applications continue to be subjected to 24 these unlawful programs. Defendants should not be given the lengthy extension they seek. The 25 Court should impose firm deadlines and extend the case schedule only a few months, as set forth 26 in Plaintiffs’ submission to the Court. Dkt. 116. PLAINTIFFS’ RESPONSE TO DEFENDANTS’ STATUS REPORT RE PRODUCTION DEADLINES (No. 2:17-cv-00094-RAJ) –3 138756974.2 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 125 Filed 02/26/18 Page 4 of 14 1 3. Defendants Have Not Complied with the Court’s Order to Identify Those Custodians Who Were on the President-Elect Transition Team. 2 During the telephonic hearing on February 14, 2018, the Court expressly ordered 3 4 5 6 7 8 9 10 Defendants to identify those custodians who also served on the President-elect’s Transition Team (PETT). Defendants have failed to do so, and they also refuse to tell Plaintiffs when to expect the information. In fact, counsel for Defendants has stated there is “no deadline” on that order, and Defendants have ignored Plaintiffs’ request to send this information by February 28 (two weeks after the Court’s order, which should be plenty of time to comply with it). Rather than respond substantively, or even answer the question, Defendants simply “noted” Plaintiffs’ request (see Exhibit A hereto). This is just one example of Defendants’ tactics that are dragging this case out. 11 12 13 14 15 Defendants refuse to answer even a simple question—in this case, whether Defendants can comply with the Court’s order by February 28. It appears that Defendants will not produce the PETT information unless the Court issues a deadline. Plaintiffs, therefore, respectfully request that the Court order production of this information by February 28, 2018. 16 4. Defendants Have Signaled That They Will Not Follow the Court’s October 19, 2017 Order Compelling the Production of the Class List. 17 Over four months ago, on October 19, 2017, this Court ordered Defendants to produce 18 the Class List. Dkt. 98. Yet, Defendants keep stalling, despite the Court’s order and Plaintiffs’ 19 repeated requests for this information. Most recently, in the parties’ February 13, 2018 Joint 20 Status Report, Defendants committed to produce this list by March 5, but for the first time 21 interjected the concept that they belatedly might be seeking relief from the Court. See Dkt. 114 22 at 4. 23 Last Friday, Defendants asked Plaintiffs to meet and confer about the Class List. 24 Defendants have not identified what they want to confer about, despite making the request and 25 despite Plaintiffs’ asking for clarification (see Exhibit B hereto). Defendants’ current desire to 26 re-litigate issues the Court decided months ago will invariably create further delay. PLAINTIFFS’ RESPONSE TO DEFENDANTS’ STATUS REPORT RE PRODUCTION DEADLINES (No. 2:17-cv-00094-RAJ) –4 138756974.2 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 125 Filed 02/26/18 Page 5 of 14 1 2 * * * Defendants repeatedly have disregarded their discovery obligations, and even this Court’s 3 clear orders. Their conduct has caused, and continues to cause, real harm and prejudice to 4 Plaintiffs. For these reasons, Plaintiffs ask this Court to impose firm deadlines on Defendants 5 and issue orders that carry consequences for further non-compliance. 6 Dated: February 26, 2018 7 Respectfully submitted by, 8 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 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 26 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 PLAINTIFFS’ RESPONSE TO DEFENDANTS’ STATUS REPORT RE PRODUCTION DEADLINES (No. 2:17-cv-00094-RAJ) –5 138756974.2 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 125 Filed 02/26/18 Page 6 of 14 1 2 3 4 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 Counsel for Plaintiffs 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFFS’ RESPONSE TO DEFENDANTS’ STATUS REPORT RE PRODUCTION DEADLINES (No. 2:17-cv-00094-RAJ) –6 138756974.2 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 125 Filed 02/26/18 Page 7 of 14 1 2 3 4 5 CERTIFICATE OF SERVICE The undersigned certifies that on the dated indicated below, I caused service of the foregoing PLAINTIFFS’ STATUS REPORT RE PRODUCTION TIMELINES via the CM/ECF system that will automatically send notice of such filing to all counsel of record herein. DATED this 26th day of February, 2018, at Seattle, Washington. 6 7 By: s/ Nicholas P. Gellert Nicholas P. Gellert #18041 Attorneys for Plaintiffs Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: NGellert@perkinscoie.com 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFFS’ RESPONSE TO DEFENDANTS’ STATUS REPORT RE PRODUCTION DEADLINES (No. 2:17-cv-00094-RAJ) –7 138756974.2 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case Document 125 Filed 02/26/18 Page 8 of 14 EXHIBIT A Case 2:17-cv-00094-RAJ Document 125 Filed 02/26/18 Page 9 of 14 From: To: Cc: Subject: Date: Perez, David A. (SEA) White, Edward S. (CIV) Sameer Ahmed (SAhmed@ACLUSOCAL.ORG); Hennessey, Laura K. (SEA); Gellert, Nicholas (SEA); Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG); Matt Adams (matt@nwirp.org); Carilli, Joseph F. (CIV); Petty, Aaron (CIV) RE: Identities of those on Presidential Transition Team Thursday, February 22, 2018 2:23:18 PM Ed, I meant that we hadn’t heard from you after you said you would inquire about whether you could get this to us two days ago. You didn’t circle back with us. Did you inquire? Did you find out something about timing that you can tell us? And simply noting our request for this information by 2/28 isn’t enough. Let’s not play word games. You said you were inquiring, so you should have information about whether that date is acceptable. Can you agree to that date, or is this something the parties need to take back to the Court? David From: White, Edward S. (CIV) [mailto:Edward.S.White@usdoj.gov] Sent: Thursday, February 22, 2018 2:18 PM To: Perez, David A. (SEA) Cc: Sameer Ahmed (SAhmed@ACLUSOCAL.ORG); Hennessey, Laura K. (SEA); Gellert, Nicholas (SEA); Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG); Matt Adams (matt@nwirp.org); Carilli, Joseph F. (CIV); Petty, Aaron (CIV) Subject: RE: Identifies of those on Presidential Transition Team David, It is incorrect to say you haven’t heard from us about this (as your email below says). In fact, my email responding to you on this subject is directly below yours in the below email string. Your request to receive the names of the custodians on the presidential transition team by 28 February 2018 is noted. Regards, Ed From: Perez, David A. (Perkins Coie) [mailto:DPerez@perkinscoie.com] Sent: Thursday, February 22, 2018 2:26 AM To: White, Edward S. (CIV) Cc: Sameer Ahmed (SAhmed@ACLUSOCAL.ORG) ; Hennessey, Laura K. (Perkins Coie) ; Gellert, Nicholas (Perkins Coie) ; Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG) ; Matt Adams (matt@nwirp.org) ; Carilli, Joseph F. (CIV) ; Petty, Aaron (CIV) Subject: RE: Identifies of those on Presidential Transition Team Case 2:17-cv-00094-RAJ Document 125 Filed 02/26/18 Page 10 of 14 Ed, We haven’t heard from you about this. We don’t believe the Court’s order was open ended on the date. We can agree to give you until February 28, which is when you were going to produce our client’s A-Files, and your written submission about searching for other noncustodial sources. That should be enough time to verify with each custodian whether they served on the transition team. David David A. Perez Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 p: 206.359.6767 f: 206.359.7767 e: DPerez@perkinscoie.com http://www.perkinscoie.com/dperez/ From: White, Edward S. (CIV) [mailto:Edward.S.White@usdoj.gov] Sent: Tuesday, February 20, 2018 3:05 PM To: Perez, David A. (SEA) Cc: Sameer Ahmed (SAhmed@ACLUSOCAL.ORG); Hennessey, Laura K. (SEA); Gellert, Nicholas (SEA); Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG); Matt Adams (matt@nwirp.org); Carilli, Joseph F. (CIV); Petty, Aaron (CIV) Subject: RE: Identifies of those on Presidential Transition Team David, We agree the Court ordered Defendants to identify to Plaintiffs those custodians who were members of the Presidential Transition. I do not believe the Court set a date certain for Defendants to provide that information, but we are working on gathering that information. I will have to inquire with DHS and USCIS as to where they stand in gathering this information, but given all the other matters related to the Wagafe case that we have been working since last Wednesday—status report for last Friday, responses to two motions to compel due today, and other time-sensitive discovery issues—I doubt we will have the information ready by the end of the day tomorrow. Nevertheless, I will inquire. Ed From: Perez, David A. (Perkins Coie) [mailto:DPerez@perkinscoie.com] Sent: Tuesday, February 20, 2018 5:37 PM To: White, Edward S. (CIV) ; Carilli, Joseph F. (CIV) ; Petty, Aaron (CIV) Cc: Sameer Ahmed (SAhmed@ACLUSOCAL.ORG) ; Hennessey, Laura K. (Perkins Coie) ; Gellert, Nicholas (Perkins Coie) ; Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG) ; Matt Adams (matt@nwirp.org) Subject: Identifies of those on Presidential Transition Team Case 2:17-cv-00094-RAJ Document 125 Filed 02/26/18 Page 11 of 14 Importance: High Ed, At the hearing on February 14, the Court expressly ordered Defendants to provide Plaintiffs with the identities of those custodians who were also members of the Presidential Transition. Our understanding is that Defendants were ordered to provide this information by last Friday, 2/16. We haven’t received any of this information. Can you commit to giving us this information by 5 p.m. PST tomorrow February 21? David A. Perez Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 p: 206.359.6767 f: 206.359.7767 e: DPerez@perkinscoie.com http://www.perkinscoie.com/dperez/ NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you. NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you. Case Document 125 Filed 02/26/18 Page 12 of 14 EXHIBIT Case 2:17-cv-00094-RAJ Document 125 Filed 02/26/18 Page 13 of 14 From: To: Cc: Subject: Date: Perez, David A. (SEA) White, Edward S. (CIV) Sameer Ahmed (SAhmed@ACLUSOCAL.ORG); Hennessey, Laura K. (SEA); Gellert, Nicholas (SEA); Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG); Matt Adams (matt@nwirp.org); Carilli, Joseph F. (CIV); Petty, Aaron (CIV) Re: Request to Meet and Confer Monday, February 26, 2018 8:07:57 AM Ed, Please tell us what sort of relief the protective order would be seeking so that we can prepare for a call. On Feb 26, 2018, at 7:35 AM, White, Edward S. (CIV) wrote: David, We need to meet and confer over a prospective motion for a protective order concerning the list of class members, and the likelihood that we may seek leave to file supporting materials under seal and/or ex parte. As we told you in Seattle on February 8th, third-party government agencies have been evaluating how the disclosure of the identities of the class members might endanger or put at risk their interests. Our prospective protective order motion will be designed to protect against dangers and risks. Ed From: Perez, David A. (Perkins Coie) [mailto:DPerez@perkinscoie.com] Sent: Friday, February 23, 2018 6:27 PM To: White, Edward S. (CIV) Cc: Sameer Ahmed (SAhmed@ACLUSOCAL.ORG) ; Hennessey, Laura K. (Perkins Coie) ; Gellert, Nicholas (Perkins Coie) ; Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG) ; Matt Adams (matt@nwirp.org) ; Carilli, Joseph F. (CIV) ; Petty, Aaron (CIV) Subject: Re: Request to Meet and Confer Ed, I don’t know yet if we’re available that day. What is the express purpose of the meet and confer? We’d like to know that in detail well in advance so we can prepare. On Feb 23, 2018, at 3:24 PM, White, Edward S. (CIV) wrote: David, In the Wagafe case, we request to meet and confer with you on Wednesday, 28 February 2018, concerning the production of the Class Member List. We are otherwise booked from 2:30 to 3:00 p.m., EST, that day, but should otherwise be available. If you let me know what time works for you, I’ll arrange a conference line. Case 2:17-cv-00094-RAJ Document 125 Filed 02/26/18 Page 14 of 14 Regards, Ed Edward S. White Senior Counsel for National Security / Senior Litigation Counsel National Security & Affirmative Litigation Unit Office of Immigration Litigation–District Court Section Civil Division United States Department of Justice Post Office Box 868 Ben Franklin Station Washington, D.C. 20044-0868 (direct) 202-616-9131 (fax) 202-305-7000 NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you.