Case 2:17-cv-00094-RAJ Document 127 Filed 03/07/18 Page 1 of 17

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

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Defendants.

No. 2:17-CV-00094-RAJ
PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION FOR
PROTECTIVE ORDER RE CLASS LIST
NOTED ON MOTION
CALENDAR: MARCH 9, 2018

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PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR
PROTECTIVE ORDER RE CLASS LIST
(No. 2:17-cv-00094-RAJ)
138851031.2

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 127 Filed 03/07/18 Page 2 of 17

TABLE OF CONTENTS

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PAGE

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I.

BACKGROUND .............................................................................................................. 2

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II.

ARGUMENT .................................................................................................................... 4

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A.

Defendants’ Motion Is Procedurally Improper Because It Is Effectively an
Untimely Second Motion for Reconsideration. ..................................................... 4

B.

If the Court Addresses the Merits of Defendants’ Motion, it Should Be
Denied for the Reasons That the Court Has Already Articulated. ......................... 5

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C.

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1.

The Government Raises the Same Law Enforcement Concerns
That the Court Has Already Rejected and Should Do So Again. .............. 6

2.

The Court Has Already Found that Plaintiffs’ Need for the Class
List Outweighs the Government’s Concerns. ............................................ 7

The Current Protective Order Is Sufficient. Alternatively, the Court
Should Adopt the Compromise That Plaintiffs’ Proposed to Defendants. .......... 11

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PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR
PROTECTIVE ORDER RE CLASS LIST - i
(No. 2:17-cv-00094-RAJ)
138851031.2

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 127 Filed 03/07/18 Page 3 of 17

TABLE OF AUTHORITIES

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CASES

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Baumann v. Chase Inv. Servs. Corp.,
747 F.3d 1117 (9th Cir. 2014) .................................................................................................10
Domingo v. New England Fish Co.,
727 F.2d 1429 (9th Cir. 1984) .................................................................................................10
Franco-Gonzalez v. Holder,
No. CV 10-02211-DMG (C.D. Cal. Mar. 2, 2015) ..................................................................11

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Gulf Oil Co. v. Bernard,
452 U.S. 89 (1981) ...................................................................................................................10
Inland Empire-Immigrant Youth Collective v. Nielsen,
No. EDCV 17-2048, 2018 WL 1061408 (C.D. Cal. Feb. 26, 2018) .......................................11
Kleiner v. First Nat’l. Bank of Atlanta,
751 F.2d 1193 (11th Cir. 1985) ...............................................................................................10
Latif v. Holder,
28 F.Supp.3d 1134, 1151-62 (D. Or. 2014) ...........................................................................7, 9
Resnick v. Am. Dental Ass’n,
95 F.R.D. 372 (N.D. Ill. 1982) .................................................................................................10
S.E.C. v. Kuipers,
399 F. App’x 167 (9th Cir. 2010) ..............................................................................................5
RULES
Fed. R. Civ. P. 26(e)(1)(A) ............................................................................................................13
Local Rule 7(h)(2)............................................................................................................................5

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PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR PROTECTIVE
ORDER RE CLASS LIST - ii

(No. 2:17-cv-00094-RAJ)
138851031.2

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 127 Filed 03/07/18 Page 4 of 17

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The Court ordered Defendants to produce a class list in its October 19, 2017 Order. Dkt.

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98 at 3-4. The Court denied Defendants’ motion to reconsider that order. Dkt. 102. Five

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months after the Court’s initial order, Defendants have filed yet another motion, this time asking

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the Court to impose certain restrictions on the class list. The Court should deny the motion

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because it is procedurally improper and substantively meritless, and the relief Defendants seek is

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unnecessary in light of the Stipulated Protective Order and Plaintiffs’ proposed compromise.

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The motion is improper for several reasons. First, although couched as a motion for

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protective order, Defendants simply re-argue the same points they advanced in opposing

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Plaintiffs’ motion to compel and in their motion for reconsideration. In effect, Defendants now

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bring an improper second motion for reconsideration. Notably, at the hearing on February 14,

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2018, when Defendants commented that they might “come back to the Court prior to the

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production deadline [of the class list] to seek further relief,” the Court responded:

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I just want to reemphasize, counsel, that two orders have already
been issued. I don’t know how to make this any clearer of what the
court’s expectations are. And unless there’s something that’s
extraordinarily different that I’m not aware of or hasn’t already
been identified by either the parties, or the court’s order, I expect
full compliance in a timely fashion without further delay.

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Feb. 14, 2018 Transcript, at 27-28 (emphasis added). There is nothing “extraordinarily
different” identified in Defendants’ motion; there is nothing different at all. Second, Defendants’
motion is untimely. There is no reason Defendants could not have made this request months ago,
rather than waiting until two business days before their production deadline to file this motion.
Third, Defendants did not fully meet and confer, as required by this Court’s Standing Order.
Even were the Court to address the merits of Defendants’ motion, it should be denied for
the same reasons the Court already articulated in its prior orders. As explained before, Plaintiffs’
counsel require the class list and class members’ personally identifiable information both to
communicate with class members to obtain information that is directly relevant to the claims at
issue, and to respond to inquiries from potential class members to inform them if their interests

PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR PROTECTIVE
ORDER RE CLASS LIST - 1

(No. 2:17-cv-00094-RAJ)
138851031.2

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 127 Filed 03/07/18 Page 5 of 17

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are represented in this case. The Court has already found (twice) that Plaintiffs’ counsel’s need

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for the class list outweighs the exact same speculative law enforcement concerns that Defendants

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raise again here. Far from striking a balance, the restrictions Defendants propose would defeat

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Plaintiffs’ reasons for requesting the class list in the first place.

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And finally, the relief Defendants seek is unnecessary. Defendants assert that the

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Stipulated Protective Order is inadequate based on strained hypotheticals that involve Plaintiffs’

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counsel violating “the spirit” of the Court’s orders. These are ad hominem attacks, not legal

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arguments. There is no evidence that anyone entitled to receive confidential information under

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the Stipulated Protective Order would violate either the letter or the spirit of that court order.

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Additionally, consistent with the Stipulated Protective Order already in place, Plaintiffs’ counsel

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suggested a reasonable compromise that would provide both an additional layer of protection to

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the class list, and also enable the list to be used in a way the Court has already approved to

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advance this litigation. Defendants’ counsel rejected this proposed compromise.

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In light of the procedural, substantive, and practical flaws with Defendants’ motion,

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Plaintiffs respectfully request that the Court deny the motion. Alternatively, if the Court believes

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certain information in the class list should be subject to additional protections, the Court should

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adopt Plaintiffs’ proposed compromise because it strikes the right balance.

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I.

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BACKGROUND

This motion is another example of Defendants’ delay tactics. On June 21, 2017, the

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Court granted Plaintiffs’ motion to certify two classes: a Naturalization Class and an Adjustment

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Class. Dkt. 69. On August 1, 2017, Plaintiffs served Defendants with discovery requests asking

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for, among other things, documents sufficient to identify the class members, including a list of

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class members. Dkt. 92, Ex. A at 32, 34-39, 48-51. Defendants refused to provide a class list,

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forcing Plaintiffs to file a motion to compel (Dkt. 91). The Court granted Plaintiffs’ motion on

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October 19, 2017, ordering Defendants to produce a class list. Dkt. 98. Notably, in arguing

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against producing a class list, Defendants asserted that disclosing class members’ personally
PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR
PROTECTIVE ORDER RE CLASS LIST – 2

(No. 2:17-cv-00094-RAJ)
138851031.2

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 127 Filed 03/07/18 Page 6 of 17

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identifiable information would cause class members to “alter their behavior, conceal evidence of

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wrongdoing, or attempt to influence others in a way that could affect national security interests.”

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Id. at 3. The Court rejected these arguments as vague and speculative. Id. at 3-4. The Court

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also reasoned “that the balance weigh[s] in favor of disclosure,” because the list “is relevant to

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the claims and Plaintiffs’ needs outweigh the Government’s reasons for withholding.” Id. at 4.

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The Court then denied Defendants’ motion for reconsideration. Dkt. 102 at 2-3.

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In the ensuing months, Plaintiffs repeatedly asked Defendants about the status of the class

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list, but several requests would go unanswered. See Declaration of David A. Perez (“Perez

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Decl.”), Ex. A (2/5/18 Perez E-mail to White re Class List) (two requests go unanswered).

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Defendants committed to producing the class list by March 5, 2018. Dkt. 114 at 4. On February

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14, the Court reminded Defendants that it had already issued two orders concerning the class list,

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and made clear that absent “something that’s extraordinarily different,” the Court expected full

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compliance with its orders. Feb. 14, 2018 Transcript, at 27-28 (emphasis added).

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At the end of the day on Friday, February 23, Defendants asked for a meet and confer

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“concerning the production of the Class Member List.” Perez Decl., Ex. B (bottom e-mail).

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Over the next five days, Plaintiffs repeatedly asked “what it is [Defendants] plan on requesting

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so [Plaintiffs] can make sure [they] have the right people on the line, and prepare accordingly in

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terms of checking in with our team and conducting research.” Id. Defendants declined to

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provide details. Nevertheless, before the meet and confer Plaintiffs sent Defendants a proposed

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compromise: (a) identifying information on the class list would be subject to “Attorneys’ Eyes

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Only” protection; (b) Plaintiffs could challenge those designations later (pursuant to the

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procedure in the Stipulated Protective Order); (c) class counsel could inform potential class

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members whether they are on the list; (d) but the entire class list would not be shared with any

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named plaintiff or class member. Id. (Gellert e-mail to White). Plaintiffs invited Defendants to

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PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR
PROTECTIVE ORDER RE CLASS LIST – 3

(No. 2:17-cv-00094-RAJ)
138851031.2

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 127 Filed 03/07/18 Page 7 of 17

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draft a supplement to the Stipulated Protective Order consistent with this compromise.

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Defendants declined to compromise, and failed to explain the relief they were seeking.1

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On March 5, 2018, in violation of the Court’s order, Defendants produced a class list that
fully redacted the names, A-numbers and filing dates of each person. Perez Decl., ¶ 6.

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II.
A.

ARGUMENT

Defendants’ Motion Is Procedurally Improper Because It Is Effectively an Untimely
Second Motion for Reconsideration.
The Court should deny Defendants’ motion because it is procedurally improper. First,

Defendants raise no new arguments that the Court has not already rejected. See infra Section B.
For example, the law enforcement concerns Defendants raise here are identical to the concerns
that Defendants previously raised in their October 2017 opposition to Plaintiffs’ motion to
compel production of the class list, and again in their motion for reconsideration. Compare Dkt.
126 at 3 (Disclosure to “class members of their status in CARRP” “would risk damage to
national security and intelligence interests and investigations.”) with Dkt. 94 at 7 (“[D]isclosure
of whether a particular individual application is subject to CARRP could cause substantial harm
to law enforcement investigations and intelligence activities.”). Defendants previously argued
that class members would “alter their behavior, conceal evidence of wrongdoing, or attempt to
influence others in a way that could affect national security interests.” Dkt. 98 at 3; see also Dkt.
102 at 2-3. Almost verbatim, Defendants repeat the same argument here. See Dkt. 126 at 3 (“the
individual may change his or her behavior, coordinate with others to prevent USCIS from
collecting statements from other relevant persons, stop certain behaviors, or intentionally provide
misleading information”). Back in October, Defendants advanced these arguments to resist
disclosing the class list altogether; here, Defendants are regurgitating these arguments to deny
Plaintiffs’ counsel the ability to use the class list in the way that Plaintiffs had requested in their

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Defendants did not properly meet and confer. In fact, Plaintiffs did not know Defendants would be
seeking relief concerning the “application dates,” much less why, until after the motion was filed. Perez Decl., ¶ 4.
PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR
PROTECTIVE ORDER RE CLASS LIST – 4

(No. 2:17-cv-00094-RAJ)
138851031.2

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 127 Filed 03/07/18 Page 8 of 17

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motion to compel—which, in effect, means that Defendants are seeking the same result they had

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sought back in October. In other words, Defendants’ motion is nothing more than an improper

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and untimely third attempt to get the Court to litigate the order issued five months ago. See

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Lopez v. Bollweg, No. CV 13-00691-TUC-DCB, 2017 WL 4677851, at *3 (D. Ariz. Aug. 28,

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2017) (“There is nothing in the Local Rules of Civil Procedure that provides for multiple

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motions for reconsideration, and filing a successive motion for reconsideration with the same

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unsuccessful arguments wastes valuable Court resources.”).

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Second, the Court should reject Defendants’ delay tactics. Defendants acknowledge that
they agreed to the Stipulated Protective Order two months after class certification, and two

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weeks after Plaintiffs had requested the class list. Dkt. 126 at 4. They have had six months to

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ask for this relief—but instead waited until the last possible day to file a motion before the class

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list was due. These dilatory tactics cast doubt on Defendants’ contentions regarding the sensitive

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nature of the information Defendants seek to protect because. If Defendants’ concerns had merit,

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Defendants would have been far more proactive in seeking this relief.2

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In sum, this motion is a second request to reconsider, masquerading as a protective order,

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filed five months late. The Court should deny it.

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B.

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If the Court Addresses the Merits of Defendants’ Motion, it Should Be Denied for
the Reasons That the Court Has Already Articulated.
If the Court reaches the merits, it should deny the motion for the same reasons articulated

in its previous orders, and because the relief Defendants are seeking would undermine Plaintiffs’
reasons for seeking the class list.

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Defendants also violated the Court’s Standing Order by failing to “discuss thoroughly, . . . the substance
of the contemplated motion and any potential resolution. The Court construes this requirement strictly. Halfhearted attempts at compliance with this rule will not satisfy counsel’s obligation.” Dkt. 65 at 3 (emphasis in
original). Plaintiffs asked Defendants several times what relief they would seek in their motion, and were not even
aware that the motion would include class members’ application dates until two hours before the motion was filed.
Perez Decl., Exs. B and C.
PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR
PROTECTIVE ORDER RE CLASS LIST – 5

(No. 2:17-cv-00094-RAJ)
138851031.2

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 127 Filed 03/07/18 Page 9 of 17

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1.

The Government Raises the Same Law Enforcement Concerns That the
Court Has Already Rejected and Should Do So Again.

Defendants contend that disclosure to “class members of their status in CARRP” “would
risk damage to national security and intelligence interests and investigations.” Dkt. 126 at 3.
The Court already rejected this argument twice, and should do so again here. In granting
Plaintiffs’ motion to compel, the Court expressly rejected Defendants’ assertion “that releasing
the identities of potential class members could lead individuals to potentially alter their behavior,
conceal evidence of wrongdoing, or attempt to influence others in a way that could affect
national security interests.” Dkt. 98 at 3. The Court recognized that Defendants’ argument
“consist[ed] of mere speculation and a hypothetical result [and] is not sufficient to claim
privilege over basic spreadsheets identifying who is subject to CARRP.” Id. at 3-4. Defendants
moved for reconsideration. The Court once again rejected Defendants’ claim, noting that “[t]he
Government may not merely say those magic words—‘national security threat’—and
automatically have its requests granted in this forum.” Dkt. 102 at 3.
As the Court has previously acknowledged on multiple occasions, permitting class
members to know that they are subjected to CARRP would not cause any of the speculative harm
that Defendants’ claim for multiple reasons. First, as Plaintiffs explained in their motion to
compel briefing, Defendants have routinely disclosed to individuals that they are subject to
CARRP in response to FOIA requests and in other litigation, and Defendants have failed to
provide a single example of how those disclosures caused any harm to law enforcement interests.
See Dkt. 95 at 4 (citing Dkt. 97 (attorney noting that, in response to FOIA requests, USCIS and
ICE have regularly provided him “with a copy of the CARRP Coversheet . . . and other CARRPrelated information when [his] client’s case has been held under the CARRP program”); id., Exs.
A, B, & C (FOIA documents indicating individuals subjected to CARRP)); Dkt. 91 at 4 (citing
Dkt. 27-1, Ex. E (FOIA document indicating Plaintiff Wagafe’s file was reviewed by CARRP
officer); Dkt. 93, Exs. 1, 2 (FOIA documents indicating CARRP officers involved in

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PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR
PROTECTIVE ORDER RE CLASS LIST – 6

(No. 2:17-cv-00094-RAJ)
138851031.2

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 127 Filed 03/07/18 Page 10 of 17

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naturalization and adjustment of status applications); Dkt. 92, Ex. E at 276:15-17 (USCIS officer

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confirming in deposition that plaintiff’s case was “a CARRP case”)).

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Second, Defendants repeat their argument that “disclosure that an applicant is (or was)

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subject to CARRP . . . would allow the applicant to infer that he or she may be subject to

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investigative scrutiny by law enforcement.” Dkt. 126 at 3-4. But the Court has already rejected

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that argument too. Because the two certified classes are limited to individuals whose

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applications have been languishing for at least six months, they are already on notice that their

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applications have been subject to additional scrutiny. See Dkt. 95 at 3-4; see also Latif v.

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Holder, 28 F. Supp. 3d 1134, 1151-62 (D. Or. 2014) (holding that individuals on the No Fly List

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be provided “with notice regarding their status on the No–Fly List” and rejecting similar security

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concerns raised by the Government). When denying Defendants’ motion for reconsideration, the

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Court explicitly recognized that the limited scope of Plaintiffs’ request—only releasing “the

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names of potential class members” to those individuals—cannot be “outbalanced by the

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speculative scope of” Defendants’ alleged harm in part because “those potential class members

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may already be aware of the Government’s additional scrutiny considering the passage of time.”

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Dkt. 102 at 3.3 The Court should once again reject Defendants’ arguments here.4

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2.

The Court Has Already Found that Plaintiffs’ Need for the Class List
Outweighs the Government’s Concerns.

The Court should also reject Defendants’ request for an additional protective order
because it would defeat Plaintiffs’ purpose in requesting the class list in the first place. As

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Defendants also claim that “it is difficult [for USCIS] to gather evidence if an applicant prematurely
becomes aware of an investigation.” Dkt. 126 at 3. But that argument is as speculative, if not more so, than
Defendants’ other arguments. As mentioned above, class members whose applications have been unreasonably
delayed more than six months already suspect they are being investigated by Defendants, so confirmation of that
investigation would not cause any additional harm to the Government.
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Defendants also admit that “[a]bout 24 percent of the current class members have their USCIS national
security concern resolved . . . but they remain class members because their immigration benefit request remains
pending.” Dkt. 126-1 ¶ 17. Because these class members are not currently subject to an investigation, Defendants
have provided no justification as to why they cannot be notified that their applications were subjected to CARRP.
PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR
PROTECTIVE ORDER RE CLASS LIST – 7

(No. 2:17-cv-00094-RAJ)
138851031.2

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 127 Filed 03/07/18 Page 11 of 17

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Plaintiffs previously explained, Plaintiffs’ counsel need the class list and class members’

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personally identifiable information for two main reasons: (1) to communicate with class

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members, who may be witnesses and sources of information that is directly relevant to Plaintiffs’

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claims, and (2) to respond to inquiries from potential class members and inform them if their

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interests are represented in this case. See Dkt. 91 at 5; Dkt. 95 at 1-2; Dkt. 100 at 5-6. In

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granting Plaintiffs’ motion to compel, the Court found that these needs outweighed Defendants’

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conclusory security concerns. See Dkt. 98 at 4 (“[T]he Court must balance the need for Plaintiffs

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to obtain [the class list] against the Government’s reasons for withholding. In doing so, the

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Court finds that the balance weigh in favor of disclosure.”); Dkt. 102 at 2 (denying Defendants’

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motion for reconsideration because “the Court exercised its discretion in balancing the needs of

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Plaintiffs versus those of Defendants and found that the balance weighed in favor of

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disclosure.”).

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Defendants’ request would undermine Plaintiffs’ ability to use the class list in a way that

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the Court has already approved. Defendants contend that the ability of class members to know

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they are Plaintiffs in this case is not relevant. See Dkt. 126 at 7 n.2 (“[T]here is no reason a

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curious individual needs to know whether he or she is in one of the certified classes.”). This is

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the same relevance argument that Defendants previously made. See Dkt. 94 at 4 (“Disclosing

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personally identifiable information (i.e., names and A-numbers) of particular individuals adds

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nothing to Plaintiffs’ case.”); id. at 6 (Plaintiffs’ “difficulty in advising individuals who may be

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class members whether their interests are adequately represented … is not relevant[.]”). The

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Court considered Defendants’ arguments and found that they had no merit. See Dkt. 98 at 2-3

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(“[T]he Government argues that the class members’ specific identities are neither relevant nor

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required for Plaintiffs to pursue this class action. Many of the Government’s arguments in

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opposition to this request are mere conclusions, and therefore are not sufficient to avoid

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disclosure.” (internal citation omitted)); id. at 4-5 (“[T]he Court rejected the Government’s

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conclusory arguments as to relevance.”).
PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR
PROTECTIVE ORDER RE CLASS LIST – 8

(No. 2:17-cv-00094-RAJ)
138851031.2

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 127 Filed 03/07/18 Page 12 of 17

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The Court was correct. As Plaintiffs previously explained, Plaintiffs’ counsel must be

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able to communicate with class members to obtain information relevant to Plaintiffs’ claims

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regarding, inter alia, the unreasonable delays in their applications, the Government’s failure to

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provide them any notice that they are subject to CARRP or explanation for their classification

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under CARRP, their religious background (given that the Government claims not to record that

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information), and other harmful impacts of CARRP and successor extreme vetting programs.

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See Dkt. 91 at 5; Dkt. 95 at 1-2; Dkt. 100 at 5-6. Defendants appear to now concede that some of

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this information is relevant, but state that if Plaintiffs “need various items of information about

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particular unnamed class members to develop evidence for use in their case, the parties can meet

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and confer over ways in which the Defendants might be able to provide Plaintiffs with such

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information.” Dkt. 126 at 7 n.2. Defendants’ offer to meet and confer makes no sense and fails

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to explain how Plaintiffs’ counsel can obtain information that is solely in the possession of

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unnamed class members without making those class members aware that they are Plaintiffs in

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this lawsuit and their applications have been subjected to CARRP.

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Furthermore, as Plaintiffs also previously explained, individuals have a right to know that

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they are members of this class action and their interests are being represented in this case. See

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Dkt. 91 at 5; Dkt. 95 at 1; Dkt. 100 at 6. Defendants contend that Plaintiffs “are mistaken,” Dkt.

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126 at 7 n.2, but it is Defendants who misunderstand the importance of class counsel’s duty to

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advise individuals who inquire about class membership. “[C]lass counsel represents all class

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members as soon as a class is certified.” Kleiner v. First Nat’l. Bank of Atlanta, 751 F.2d 1193,

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1207 n.28 (11th Cir. 1985); see also Baumann v. Chase Inv. Servs. Corp., 747 F.3d 1117, 1122-

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23 (9th Cir. 2014) (noting that “class counsel’s ability to fairly and adequately represent

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unnamed [class members]” is a “critical requirement[] in federal class actions”); Resnick v. Am.

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Dental Ass’n, 95 F.R.D. 372, 376 (N.D. Ill. 1982) (“Class counsel have the fiduciary

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responsibility and all the other hallmarks of a lawyer representing a client.”). Therefore, when

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individuals reach out to class counsel to inquire as to whether they are class members, class
PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR
PROTECTIVE ORDER RE CLASS LIST – 9

(No. 2:17-cv-00094-RAJ)
138851031.2

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 127 Filed 03/07/18 Page 13 of 17

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counsel must be able to respond and appropriately advise their clients. It is very important for

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individuals with pending naturalization and adjustment of status applications to know whether

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they can seek and obtain relief through this lawsuit, or whether they face a separate issue causing

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delay that requires a separate legal analysis and potential litigation to ensure the Government

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properly adjudicates their applications.

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Defendants’ proposed restrictions would effectively put a ban on class counsel’s ability to

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communicate with class members. The Supreme Court has noted the “adoption of a

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communications ban that interferes with . . . the prosecution of a class action” must include

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“specific findings that reflect a weighing of the need for limitation and the potential interference

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with the rights of the parties.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 101, 104 (1981); see also

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Domingo v. New England Fish Co., 727 F.2d 1429, 1441 (9th Cir. 1984) (finding that

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“restrictions on [plaintiffs’] communications [with class members] created at least potential

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difficulties for them as they sought to vindicate the legal rights of [the class]”) (internal quotation

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marks omitted). Here, Defendants have failed to demonstrate the need for the limitations they

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seek. To the contrary, because of the important role that class counsel plays in advising and

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protecting the rights of all class members, Defendants should produce the class list with class

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members’ personally identifiable information, as courts have ordered the Government to produce

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in similar situations. See, e.g., Inland Empire-Immigrant Youth Collective v. Nielsen, No. EDCV

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17-2048 PSG (SHKx), 2018 WL 1061408, at *23 (C.D. Cal. Feb. 26, 2018) (“Defendants shall

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provide Class Counsel with a list of all [class members]. That list shall include the following

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information for each person: Name, Alien Number . . . .”); Franco-Gonzalez v. Holder, No. CV

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10-02211-DMG (C.D. Cal. Mar. 2, 2015), Dkt. 810 at 8 & n.7 (ordering the government to

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provide “Plaintiffs with a report from the Class Database indicating the [class members]

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currently identified by Defendants,” including their names and A numbers).

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PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR
PROTECTIVE ORDER RE CLASS LIST – 10

(No. 2:17-cv-00094-RAJ)
138851031.2

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 127 Filed 03/07/18 Page 14 of 17

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C.

The Current Protective Order Is Sufficient. Alternatively, the Court Should Adopt
the Compromise That Plaintiffs’ Proposed to Defendants.
Defendants assert that they require added protection because the existing protective order

“is insufficient.” Dkt. 126 at 4. This argument fails for several reasons. First, it simply
highlights Defendants’ procrastination. Defendants agreed to the Stipulated Protective Order in
August—nearly eight months ago. Therefore, after class certification and after Plaintiffs had
requested a class list, Defendants expressly agreed to terms that “would permit named Plaintiffs
to receive the class list.” Dkt. 126 at 4. Contrary to Defendants’ suggestion, Plaintiffs never
agreed that “inform[ing] unnamed class members whether they are included on the class list”
would be subject to the Stipulated Protective Order. Id. Instead, Plaintiffs noted that “there is no
need to shield the identities of class members pursuant to a protective order.” Dkt. 100 at 8. The
Court rejected Defendants’ argument that class members cannot be made aware of their inclusion
in this case, and stated that “Plaintiffs’ attorneys could supplement the protective order . . . to
assuage any remaining concerns on the part of the Government.” Dkt. 98 at 4 (emphasis added).
But Defendants have raised no new concerns here to justify supplementing the protective order.
Second, Defendants also assert that their proposed changes are necessary because
Plaintiffs’ counsel “or the organizations for which they work,” will violate “the spirit” of the
Stipulated Protective Order. Dkt. 126 at 5-6. Put differently, Defendants request this order
because they do not believe the Court can trust Plaintiffs’ counsel or “the organizations for
which they work.” To be clear, this is not a legal argument, or a factual statement based on any
empirical evidence. It is an ad hominem attack. There is no basis to suggest, much less
conclude, that Plaintiffs’ counsel will violate either the letter or the spirit of any order, and
certainly not one to which Plaintiffs stipulated. On the contrary, Plaintiffs have demonstrated
throughout this case their commitment to following all the Court’s orders.
And finally, far from striking the right balance, Defendants’ proposed restrictions would
completely undermine Plaintiffs’ ability to use the class list to gather evidence and adequately

26
PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR
PROTECTIVE ORDER RE CLASS LIST – 11

(No. 2:17-cv-00094-RAJ)
138851031.2

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 127 Filed 03/07/18 Page 15 of 17

1

represent their clients. It would also cause significant practical obstacles that would impede

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Plaintiffs’ counsel from accessing the list. For instance, limiting access only to counsel of record

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may exclude the many other attorneys and staff members (for instance, paralegals and discovery

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attorneys at Perkins Coie) from accessing the list. And requiring encrypted point-to-point

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communication would severely limit Plaintiffs’ counsel’s ability to communicate about the list.

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Defendants have not explained why such restrictions are necessary (e.g., why Plaintiffs’ current

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e-mail systems are insufficient or why legal staff members could not access the list). Worse,

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Defendants’ proposed restrictions would contravene the very reasons this Court ordered the list

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produced in the first place.

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Alternatively, if the Court is inclined to add additional protections to the class list,

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Plaintiffs’ proposed compromise strikes the right balance. Under Plaintiffs’ proposal, class

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members’ identifiable information (names and A numbers) would be subject to Attorneys’ Eyes

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Only protection,5 with the understanding that Plaintiffs could challenge that designation under

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the process set forth in the Stipulated Protective Order. However, consistent with the Court’s

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prior orders, Plaintiffs would be able to inform individual persons whether they are on the list,

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and thus are potential class members. But neither Named Plaintiffs nor unnamed class members

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would have access to the list itself or information about other persons on the list. This practical

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compromise gives Defendants the protections they need, while allowing Plaintiffs to use the

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class list in a manner that is consistent with the underlying reasons for why Plaintiffs requested it

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in the first place.6

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Consistent with the general understanding of Attorneys’ Eyes Only restrictions, this would not be limited
to counsel of record, but would include legal and support staff, such as paralegals, legal secretaries, and others
working under the direction and supervision of the attorneys, but would not include Named Plaintiffs or unnamed
class members.
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Defendants also indicate that the class list they plan to produce “is based on who was a class member on
December 1, 2017.” Dkt. 126-1, ¶ 17 n.3. As Plaintiffs previously noted, given Defendants’ duty under Fed. R.
Civ. P. 26(e)(1)(A) to supplement discovery responses “in a timely manner,” Plaintiffs request that Defendants
produce quarterly updates to the list. See Dkt. 95 at 3.
PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR
PROTECTIVE ORDER RE CLASS LIST – 12

(No. 2:17-cv-00094-RAJ)
138851031.2

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 127 Filed 03/07/18 Page 16 of 17

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By:
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/ 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/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/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

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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

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Attorneys for Plaintiffs

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PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR
PROTECTIVE ORDER RE CLASS LIST – 13

(No. 2:17-cv-00094-RAJ)
138851031.2

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 127 Filed 03/07/18 Page 17 of 17

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CERTIFICATE OF SERVICE
The undersigned certifies that on the dated indicated below, I caused service of the
foregoing PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR PROTECTIVE ORDER
RE CLASS LIST via the CM/ECF system that will automatically send notice of such filing to all
counsel of record herein.
DATED this 7th day of March, 2018, at Seattle, Washington.

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s/ David A. Perez
David A. Perez, WSBA No. 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

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CERTIFICATE OF SERVICE (No. 2:17-cv-00094-RAJ) – 14

138851031.2

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000