Case 2:17-cv-00094-RAJ Document 132 Filed 03/12/18 Page 1 of 10 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 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFFS’ STATUS REPORT v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants. 14 15 No. 2:17-cv-00094-RAJ Plaintiffs submit the following status report, to provide the Court with details not volunteered in Defendants’ status report. Dkt. 130. Given the Court’s explicit directions provided at our conferences on February 8 and 14, 2018, it is remarkable that Defendants still refuse to commit to document production timelines. Defendants also decline to acknowledge, much less honor, deadlines the parties agreed upon many months ago. Now they are not even following the Court’s orders. Plaintiffs are mindful of the Court’s workload, and are committed to minimizing the need for further judicial resources to be utilized for the resolution of discovery disputes in this matter. But the parties’ “meet and confer” sessions with Defendants continue to generate intractable impasses on a number of important issues. Accordingly, Plaintiffs are required to prepare additional motions that will be presented to the Court soon, including one proposing that the PLAINTIFFS’ STATUS REPORT RE PRODUCTION (No. 2:17-cv-00094-RAJ) –1 138932986.2 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 132 Filed 03/12/18 Page 2 of 10 1 Court impose consequences on Defendants for their continued refusal to abide by the Court’s 2 orders. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1. Defendants refuse to commit to a timeline, despite the Court’s orders to do so. Defendants failed to meet the parties’ agreed-upon deadline of March 5, 2018, to produce documents responsive to Plaintiffs’ First Discovery Requests. Since December 2017, Defendants have produced only 143 documents. Plaintiffs served their First Discovery Requests on August 1, 2017. Defendants repeatedly stated that they needed six months to fully respond. Plaintiffs found that timeline to be unreasonable, but eventually agreed—a significant concession and compromise on Plaintiffs’ part. Accordingly, the parties agreed on March 5, 2018, as the date by which Defendants would complete their production relating to Plaintiffs’ First Discovery Requests (except for RFPs 23 and 24). On several occasions—in letters and phone calls—Defendants reiterated their commitment to this date, and promised Plaintiffs that “rolling productions” would begin in midJanuary to avoid a “document dump” on March 5. Plaintiffs’ decision to accept Defendants’ proposed deadline rather than file a motion to compel has proven to be a mistake. December went by, but Defendants produced no documents. January went by without a production. February passed, and Defendants produced only 143 documents, almost all of which were heavily redacted, as more fully described below. See infra Sections 2 & 3. As Plaintiffs explained in their last Status Report (Dkt. 125), the Court should consider Defendants’ pace of compliance when assessing their complaints about burden. Defendants still refuse to commit to a deadline to complete their production of documents in response to Plaintiffs’ First Discovery Requests, and have made only six small productions over the past seven months: 24 25 26 PLAINTIFFS’ STATUS REPORT RE PRODUCTION (No. 2:17-cv-00094-RAJ) –2 138932986.2 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 132 Filed 03/12/18 Page 3 of 10 1 Production Volume 2 Date Number of Documents DEF PROD VOL001 10/5/2017 214 DEF PROD VOL002 10/31/2017 868 4 DEF PROD VOL003 10/31/2017 122 5 DEF PROD VOL004 11/22/2017 221 DEF PROD VOL005 2/13/2018 80 DEF PROD VOL006 2/28/2018 63 3 6 7 Total: 1568 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 On March 5, 2018, the parties engaged in a “meet and confer” by phone to discuss outstanding discovery and Defendants’ failure to comply with certain court orders. Plaintiffs inquired about the status of Defendants’ efforts to comply with the promise to complete their production by March 5. Defendants stated that no further production would be made that day or even by the end of that week. Instead, Defendants stated that rolling productions may begin later this month—weeks after the deadline for completion—and likely would not conclude for many months. As reflected in their own Status Report, having conceded that they did not honor their six-month deadline of March 5, in the “meet and confer” conference, Defendants refused to commit to a new deadline by which their production would be completed. Defendants explained on the call, and further explained in the declarations they later submitted with their March 9, 2018, Status Report that they have only recently begun to hire the staff necessary to initially review these documents. In other words, despite knowing back in August 2017 that the production would involve review, analysis, and production of voluminous amounts of documents—after all, the volume was the very reason why Defendants demanded a six month extension to March 2018 to complete their production—Defendants only now have started “staffing up” for their initial review. These staffing decisions, if indeed they are the reason for the delay, should have been made in September or October 2017. Yet Defendants refuse to explain why they waited so long. PLAINTIFFS’ STATUS REPORT RE PRODUCTION (No. 2:17-cv-00094-RAJ) –3 138932986.2 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 132 Filed 03/12/18 Page 4 of 10 1 In effect, Defendants have created conditions that virtually guarantee an unprecedented 2 year-long delay to respond to one set of discovery requests. Defendants’ recent Status Report 3 fails to explain why. The only conclusion that Plaintiffs can reach is that Defendants’ delays are 4 part of a tactical decision to avoid as long as possible opposing counsel’s scrutiny and the 5 Court’s consideration of incriminating documents regarding CARRP and similar government 6 Extreme Vetting Programs that affect the adjudication of immigration benefit applications. 7 Plaintiffs renew their request that the Court impose firm deadlines of reasonable 8 durations for Defendants to comply with their obligation to produce relevant and discoverable 9 documents that have been requested for production, as set forth in Plaintiffs’ submission to the 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Court. Dkt. 116. 2. Defendants are using improper and expansive privilege assertions to withhold documents and violate Court orders. During the parties’ February 14, 2018, hearing the Court accurately predicted that privilege may be one reason for Defendants’ delays, and cautioned Defendants against using privilege in an expansive manner to avoid their discovery obligations. It would appear that Defendants have chosen not to abide the Court’s warning. One of Plaintiffs’ two motions to compel now pending before the Court concerns Defendants’ improper use of the law enforcement privilege. Despite the Court’s cautioning, Defendants’ have doubled-down their reliance on improper privilege assertions. On February 28, 2018, Defendants made their sixth document production, which consisted of only 63 documents. Of those, Defendants redacted or withheld information based on a claim of privilege from 57 documents—or roughly 90% of the production. And for the fifth document production (the only other production received since late November), Defendants produced only 80 documents, of which 60 were redacted or withheld for privilege—a ratio of 75%. The vast majority were marked privileged under the law enforcement privilege and the deliberative process privilege; but for neither privilege did Defendants provide PLAINTIFFS’ STATUS REPORT RE PRODUCTION (No. 2:17-cv-00094-RAJ) –4 138932986.2 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 132 Filed 03/12/18 Page 5 of 10 1 a declaration from the agency official officially invoking the privilege, or even identify who is 2 invoking the privilege in the first place. 3 In addition to their reliance on the law enforcement privilege, Defendants have asserted 4 the deliberative process privilege to improperly withhold or heavily redact hundreds of 5 documents. The parties are at an impasse concerning this issue and Plaintiffs have no choice but 6 to file a motion to compel concerning Defendants’ use of the deliberative process privilege. 7 Moreover, as explained below, Defendants are now making privilege assertions for 8 unnamed government entities, and using those privilege assertions to withhold information that 9 the Court has already ordered produced. In effect, Defendants are creating a “whack-a-mole” 10 situation to avoid discovery and avoid compliance with the Court’s orders. They initially assert 11 privilege over a particular document (e.g., information regarding why Named Plaintiffs were 12 subject to CARRP). Then, after Plaintiffs move to compel and the Court overrules Defendant’s 13 privilege, Defendants either will reassert that same privilege, but on behalf of some other 14 unnamed agency that has “yet to be heard,” or assert another privilege, or both. The upshot is 15 that Defendants have successfully used dubious assertions of privilege to significantly delay any 16 meaningful discovery in this matter. 17 The Court should take Defendants’ tactics with respect to privilege into account as it 18 considers Plaintiffs’ motion to compel regarding the law enforcement privilege, and as it 19 considers the forthcoming motion to compel regarding the deliberative process privilege. 20 21 3. Defendants are violating several Court orders. Violations of court orders in the Western District of Washington are uncommon. In this 22 case, however, violating court orders (including deadlines) has become casual and routine for 23 Defendants. Plaintiffs will delve deeper into each of these violations in a motion they intend to 24 file soon, but here will give a brief overview of Defendants’ apparently cavalier approach to 25 compliance with Court orders: 26 PLAINTIFFS’ STATUS REPORT RE PRODUCTION (No. 2:17-cv-00094-RAJ) –5 138932986.2 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 132 Filed 03/12/18 Page 6 of 10 1 Class List: In its October 19, 2017 Order, the Court compelled Defendants to 2 produce a Class List. Dkt. 98. Defendants unsuccessfully moved for 3 reconsideration. Dkt. 102. After months of further delays, the Court entered the 4 parties’ joint stipulation, ordering the list of individuals be produced by March 5, 5 2018. Dkt. 114. Instead of producing a list of individuals’ names, or moving for 6 relief from that court-ordered deadline, Defendants filed an untimely motion for 7 protective order, and produced only a list with the actual names redacted. In other 8 words, without permission from this Court, Defendants adjusted the Court’s 9 ruling, set a new (open-ended) deadline, and produced a Class List that 10 confounded the purpose of the Court’s previous ruling and continued to hide the 11 very information that the Court had ordered produced. In short, in violation of the 12 Court’s order, Defendants produced a Class List that redacted the list itself. 13 Information Regarding Why Named Plaintiffs Were Subjected to CARRP: 14 In the same October 19, 2017, Order, the Court compelled Defendants to produce 15 information explaining why Named Plaintiffs were subject to CARRP. Dkt. 98. 16 Defendants did not move to reconsider that portion of the Order. Instead of 17 complying, however, Defendants have redacted this information from Named 18 Plaintiffs’ A-Files, asserting that other unnamed agencies have invoked some 19 claim of privilege not previously presented to the Court. Consequently, although 20 the documents and information are clearly in Defendants’ custody and control, 21 Defendants refuse to produce them even though the Court already has ordered 22 them produced based on an argument that their sibling agencies can assert a 23 privilege and override the Court’s order. 24 President-elect Transition Team Custodians: On February 14, 2018, after 25 reviewing the parties’ submissions and hearing oral argument, the Court expressly 26 ordered Defendants to identify each of the custodians that were also members of PLAINTIFFS’ STATUS REPORT RE PRODUCTION (No. 2:17-cv-00094-RAJ) –6 138932986.2 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 132 Filed 03/12/18 Page 7 of 10 1 the President-elect Transition Team (PETT). This would allow Plaintiffs to 2 subpoena PETT directly for these custodians’ documents. John Kelly, who is the 3 former Secretary of the Department of Homeland Security, is such a custodian.1 4 But instead of complying with the Court’s order, or seeking reconsideration of the 5 order, Defendants unilaterally decided they will simply not comply with the order 6 as it relates to John Kelly, and have refused to disclose whether he served on the 7 transition team. 8 Production Schedule: On numerous occasions, the Court has ordered 9 Defendants to comply with specific timelines and production schedules. For 10 instance, in its January 10, 2018, Order the Court ordered Defendants to disclose 11 custodians and non-custodial sources (stemming back to its October 19, 2017, 12 Order, see Dkt. 98), conduct appropriate searches within 10 days, and produce 13 responsive documents within 30 days after that. Dkt. 104. We are now well past 14 all those deadlines. Yet Defendants continue to drag their feet and ask for more 15 time. On numerous occasions since issuing that order—including during the 16 Court’s hearings on February 8 and 14, 2018—the Court has asked for “specific” 17 timelines from Defendants, but Defendants have steadfastly refused to provide 18 any. 19 20 21 * * * Defendants often mention the burdens they face in discovery. But Defendants’ delays, 22 unnecessary motion practice, and violations of court orders have significantly increased both the 23 burden and the costs of litigation for the Court and Plaintiffs. Rather than being able to focus on 24 the merits of the case, Plaintiffs have been forced to spend significant time and money on a series 25 26 1 Mr. Kelly currently serves as Chief of Staff to the President. PLAINTIFFS’ STATUS REPORT RE PRODUCTION (No. 2:17-cv-00094-RAJ) –7 138932986.2 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 132 Filed 03/12/18 Page 8 of 10 1 of avoidable, unnecessary, and often duplicative discovery disputes. The Court has also been 2 forced to spend unnecessary time on unnecessary disputes. See Dkt. 104 at 4 (Court order 3 characterizing Defendants’ arguments as “disingenuous”). In addition, Defendants’ conduct has 4 caused, and continues to cause, real harm and prejudice to Named Plaintiffs and the nationwide 5 classes because their adjustment of status and naturalization applications continue to be 6 unlawfully delayed and denied by Defendants. 7 Plaintiffs renew their request that the Court impose firm deadlines as set forth in 8 Plaintiffs’ submission to the Court, Dkt. 116, and reaffirm that all parties to this litigation must 9 comply with Court-imposed deadlines and orders. 10 11 Dated: March 12, 2018 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFFS’ STATUS REPORT RE PRODUCTION (No. 2:17-cv-00094-RAJ) –8 138932986.2 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 132 Filed 03/12/18 Page 9 of 10 1 Respectfully submitted by, 2 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 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 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 25 26 PLAINTIFFS’ STATUS REPORT RE PRODUCTION (No. 2:17-cv-00094-RAJ) –9 138932986.2 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 132 Filed 03/12/18 Page 10 of 10 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 via the CM/ECF system that will automatically send notice of such filing to all counsel of record herein. DATED this 12th day of March, 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 PLAINTIFFS’ STATUS REPORT RE PRODUCTION (No. 2:17-cv-00094-RAJ) –10 138932986.2 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000