Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 1 of 20 1 The Honorable Richard A. Jones 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 11 ABDIQAFAR WAGAFE, et al., 12 13 14 15 16 Plaintiffs, v. DONALD TRUMP, President of the United States, et al., No. 2:17-cv-00094-RAJ DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SANCTIONS Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 1 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 2 of 20 1 I. 2 INTRODUCTION Despite devoting the bulk of their brief to challenging the pace of discovery—an issue the 3 Court already has under consideration—Plaintiffs’ actual request sanctions is based on three 4 alleged violations of Court orders. In none of those instances, however, have Defendants violated 5 the Court’s orders. Even assuming Defendants misunderstood the Court’s intent on an issue, 6 there are numerous special circumstances that make award of attorneys’ fees at this juncture 7 unjust—including the potential availability of attorneys’ fees under the Equal Access to Justice 8 Act (“EAJA”) at the conclusion of the case. Importantly, Plaintiffs have alleged no prejudice, 9 and Defendants recently stipulated to vacate deadlines related to expert discovery until 10 outstanding discovery issues are resolved. Finally, even if the Court were inclined to impose 11 sanctions, the vast majority of the attorney-time claimed by Plaintiffs cannot be awarded because 12 it preceded the alleged violations, and thus could not have been “caused by the failure” of 13 Defendants to abide by the relevant orders. The motion is meritless and should be denied. 14 II. BACKGROUND 15 A. Court’s October 19, 2017 Order (“Why” Documents and Class List) 16 In Plaintiffs’ First Requests for Production to Defendants (“First RFPs”), Plaintiffs 17 requested documents about why each named Plaintiff’s immigration benefit application was 18 subjected to the Controlled Application Review and Resolution Program (“CARRP”) (RFPs No. 19 13, 15, 17, 19, 21) (hereinafter “‘why’ documents”), Dkt. 92, Ex. A, and documents sufficient to 20 identify each class member (RFPs No. 34, 35) (hereinafter “class list”), id. Defendants objected 21 to producing both the “why” documents and the class list on the ground that Defendants had a 22 law enforcement privilege to “neither confirm nor deny” whether any particular individual’s 23 immigration benefit application was subjected to the CARRP. 1 See id. Defendants also noted in 24 their objections that any particular “why” document, if such existed, might also be privileged. 25 26 27 28 1 With respect to the particular requests for “why” documents related to the named Plaintiffs, Defendants objected, inter alia, that they could “neither confirm nor deny that [the named plaintiff’s] naturalization application was subject to CARRP as this information is privileged.” Id. RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 2 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 3 of 20 1 Dissatisfied, Plaintiffs moved to compel. Dkt. 91. Plaintiffs acknowledged that 2 Defendants had not yet made a claim of privilege over the contents of the “why” documents: 3 5 Because Defendants assert that privilege prevents disclosure of whether Named Plaintiffs are subject to CARRP, they do not address what privilege, if any, they believe applies to documents disclosing why Named Plaintiffs are subject to CARRP, as requested in RFP Nos. 13, 15, 17, 19 and 21. 6 Dkt. 91 at 4 n.4. In response, Defendants argued only about the privilege claim concerning the 7 identity of the class members, to include named Plaintiffs. Dkt. 94 at 7 (“disclosure of whether a 8 particular individual application is subject to CARRP could cause substantial harm to law 9 enforcement investigations and intelligence activities.”). In reply, Plaintiffs again acknowledged 4 10 11 that Defendants had not, at that point, claimed privilege over the “why” information: 15 Defendants also ignore—and thus appear to concede as proper—Plaintiffs’ requests for documents related to the reasons why the five named Plaintiffs have been subject to CARRP. See Perez Decl. Ex. A at RFP Nos. 13, 15, 17, 19, 21; id. Ex. B (raising the issue); Mot. at 3 (arguing Defendants cannot categorically claim privilege over this information). To the extent Defendants maintain their position that these documents, too, are categorically subject to the law enforcement privilege, Plaintiffs’ above arguments apply equally here. 16 Dkt. 95 at 4 n.2. The only question before the Court in the motion to compel was whether 17 Defendants had a law enforcement privilege to “neither confirm nor deny” whether any 18 particular individual’s immigration benefit application was subjected to the CARRP; Defendants 19 had not asserted privilege over any particular piece of “why” information, or even identified 20 whether such information existed. Indeed, asserting privileges over reasons why a named 21 plaintiff was in CARRP would have required Defendants to admit the individual was in CARRP, 22 thereby waiving the threshold claim of privilege then being litigated. On the question before the 23 Court, the Court said: 12 13 14 24 25 26 27 28 [s]uch a vague, brief explanation that consists of mere speculation and a hypothetical result is not sufficient to claim privilege over basic spreadsheets identifying who is subject to CARRP . . . . [f]inally, Plaintiffs request to know why the Named Plaintiffs were subjected to CARRP. For the same reasons stated above, the Court finds that this information is relevant to the claims and Plaintiffs’ needs outweigh the Government’s reasons for withholding. RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 3 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 4 of 20 1 Dkt. 98 at 3, 4 (emphasis added). The Court acknowledged the importance of protecting 2 information identifying applications subjected to CARRP and specific information relating to 3 individuals: “The Court notes that there is a protective order in place, Dkt. 86, and Plaintiffs’ 4 attorneys could supplement the protective order . . . to assuage any remaining concerns on the 5 part of the Government.” Dkt. 98 at 4. And, in denying Defendants’ motion for reconsideration, 6 the Court invited the parties to agree to an additional protective order. Dkt. 102, at 3. 7 Ultimately, in a February 2018 Joint Status Report, the parties informed the Court that 8 Defendants would produce copies of the named Plaintiffs’ alien files (“A Files”) by February 28, 9 2018, and the class list by March 5, 2018. Dkt. 114, at 4. Plaintiffs asserted the A Files should be 10 produced un-redacted, while Defendants stated they would produce non-privileged A File 11 documents, consistent with their understanding that the Court’s October 19, 2017 order left open 12 the possibility of asserting privilege over particular items of information in the A Files. 13 Defendants also stated that they reserved the right to seek relief from the Court, as necessary, 14 concerning production of the class members list. Id. 15 On February 14, 2018, the Court acknowledged that Defendants intended to claim 16 privilege over information in the A Files, which includes “why” documents. See Dkt. 140, Ex. L, 17 at 26:7-13. 2 The Court also acknowledged that Defendants intended to seek further relief related 18 to production of the class list. See id., at 27:17-28:2. 3 19 On February 28, 2018, Defendants produced the A Files, withholding certain information 20 under the attorney-client, deliberative process, and law enforcement privileges, 4 Declaration of 21 2 22 23 24 25 26 27 28 “MR. WHITE: And our intention would be, as we said earlier, to only redact that which we believe to be privileged that needs to be redacted, and provide a privilege log that identifies the privilege being claimed and the basis for it. THE COURT: Okay. All right. Enough said on Item No. 6.” Dkt. 140, Ex. L, at 26:7-13. 3 “MR. WHITE: But what we wanted to be candid with the court about, which is the purpose of the subordinate clause [in the status report], was what we’re doing now is consulting with third agencies who -that might suffer any risk or harm from the disclosure of the names on the list. And depending on how those consultations develop -- and we’re actually working those -- we may potentially come back to the court prior to the production deadline to seek further relief. But absent that, our intention is to comply with Your Honor’s orders. THE COURT: All right.” Dkt. 140, Ex. L., at 27:17-28:2. 4 Plaintiffs assume, incorrectly, that all redactions from the A Files necessarily concern “why” information, and that all “why” information, to the extent it exists, is in the A Files. Neither assumption is correct. The A RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 4 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 5 of 20 1 Joseph F. Carilli Jr. (Carilli Decl.) Ex. 5, and, on March 16, 2018, produced the corresponding 2 privilege logs. Dkt. 140, Ex. Q. On March 1, 2018, in accordance with the Court’s suggestion to 3 further supplement the protective order, Defendants moved the court “to supplement the existing 4 protective order to limit disclosure of the names, A numbers, and application filing dates of the 5 certified class members solely to Plaintiffs’ attorneys of record, any experts retained by 6 Plaintiffs, and the Court and court personnel.” Dkt. 126 at 2. On March 5, 2018, Defendants 7 produced the class list, but withheld the information at issue in the motion for a supplemental 8 protective order pending the Court’s ruling on the motion. Carilli Decl., Ex. 6. 9 B. Court’s February 14, 2018 Order (“PETT List”) 10 On February 14, 2018, the Court ordered Defendants to identify to Plaintiffs who among 11 the named Custodians had served on the President-Elect Transition Team (“PETT”). Dkt. 140, 12 Ex. L, at 21:5-8. On March 9, 2018, Defendants disclosed to Plaintiffs who among the 41 13 Custodians thus far identified had served on the President-Elect Transition Team, with the single 14 exception of Secretary John F. Kelly. See Dkt. 140, Ex. R. Defendants explained that: Given Gen. Kelly’s current position as the President’s Chief of Staff and the limits on discovery from the President and his close advisors, see Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 542 U.S. 367 (2004), [Defendants] have not inquired directly with Gen. Kelly whether he was on the President-Elect Transition Team, and do not believe it is appropriate or necessary to do so. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id. C. Production Timeline Defendants agreed to a discovery plan, Dkt. 78, based on certain assumptions about the scope of the issues in this case. In hindsight, that plan may have been optimistic. Further, over time, the scope of discovery and the number of documents that need to be collected and reviewed has considerably expanded. See, e.g., Dkts. 104, 114, 117, 124. In September 2017, at the parties’ first meet-and-confer about the First RFPs, Defendants proposed a modification to the Files contain privileged information that does not have any relationship to the CARRP policy. Emrich Decl., ¶ 11. There can be no argument that redacting non-“why” information does not violate the Court’s October 19, 2017 order (and the Court should not, therefore, order production of fully unredacted A Files). If the Plaintiffs were subject to the CARRP policy, some number of “why” documents would not necessarily be in the Plaintiffs’ A Files. Those documents, to the extent they exist, will be reviewed for privilege; the non-privileged portions will be produced once review is complete. RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 5 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 6 of 20 1 pre-trial schedule to permit Defendants adequate time to produce the requested discovery and 2 Plaintiffs adequate time for follow-on discovery. See Dkt. 140, Ex. E at 2. Plaintiffs rejected the 3 proposal. See Dkt. 140, Ex. D, at 2; see also id., Ex. F at 2. 4 In response to the First RFPs, in September 2017, Defendants disclosed to Plaintiffs eight 5 custodians and ten non-custodial sources in their ESI disclosures pursuant to Agreement 6 Regarding Discovery of Electronically Stored Information and Order, Dkt. 88. See Carilli Decl., 7 Ex. 1. Subsequently, at Plaintiffs’ request, Defendants added two custodians. See Carilli Decl., 8 Ex. 2. For the search of the custodians’ electronic mail, Defendants identified 12 search terms. 9 See Carilli Decl., Ex. 3. 10 On November 14, 2017, Defendants informed Plaintiffs that, given the volume of 11 documents collected to that point—750,000 in response to the First Requests for Production of 12 Documents (“First RFPs”), not including RFP Nos. 23 and 24—Defendants would use 13 technology assisted review (“TAR”) to identify responsive documents. See Dkt. 140, Ex. I at 2. 14 Subsequently, Defendants twice provided Plaintiffs with more detailed explanations of the TAR 15 process and its impact on the production process, and sent Plaintiffs the TAR protocol. Dkt. 140, 16 Ex. G, H. In addition, at Plaintiffs’ request, in December 2017, Defendants added another 20 17 search terms to be applied to the named custodians. Carilli Decl., Ex. 4. 18 On November 17, 2017, Plaintiffs served their Second RFPs. See Dkt. 112, Ex. A 19 (“Second RFPs”). At Plaintiffs’ request, on January 31, 2018, Defendants provided Plaintiffs a 20 proposed production schedule, contingent on the number of documents collected in the search for 21 documents potentially responsive to RFP No. 24 and the Second RFPs, and followed up with a 22 written case schedule proposal that same day. Hennessey Decl., Dkt. 140, Ex. K (“This proposal 23 is contingent on the number of documents collected during the search for documents responsive 24 to RFP No. 24 and Plaintiffs Second Request for Production to Defendants (‘Second RFPs’).”). 25 On January 19 and 26, 2018, Defendants updated Plaintiffs on the progress of the TAR 26 process. Carilli Decl., ¶ 4. On February 8, 2018, during the hearing, Defendants provided another 27 update to Plaintiffs on the TAR process. Carilli Decl., ¶ 5. On February 16, 2018, Defendants 28 provided Plaintiffs and the Court with their best estimate of the time it would take to complete RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 6 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 7 of 20 1 production for all the documents identified as potentially responsive to the First and Second 2 RFPs. Dkt. 117 (“To complete the review and production of all currently outstanding discovery 3 will, Defendants expect, take at least 6 months from present.”). A portion of the TAR process is 4 complete and has identified more than 82,000 documents. Dkt. 130, ¶ 1. 5 II. ARGUMENT 6 A. Standard for Imposing Sanctions Under Rule 37(b)(2)(C) 7 A party commits civil contempt if the party disobeys “a specific and definite court order 8 by failure to take all reasonable steps within the party’s power to comply.” Reno Air Racing 9 Ass’n v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006). Contempt “need not be willful; however, 10 a person should not be held in contempt if his action appears to be based on a good faith and 11 reasonable interpretation of the court’s order.” Id. (internal citations and quotation marks 12 omitted). Substantial compliance is also a defense to civil contempt—“[i]f a violating party has 13 taken all reasonable steps to comply with the court order, technical or inadvertent violations of 14 the order will not support a finding of civil contempt.” Gen. Signal Corp. v. Donallco, Inc., 787 15 F.2d 1376, 1379 (9th Cir. 1986) (internal citation omitted). Thus, the party alleging civil 16 contempt must demonstrate by clear and convincing evidence that: (1) the alleged contemnor 17 violated a court order; (2) noncompliance was more than technical or de minimis; and (3) the 18 alleged contemnor’s conduct was not in good faith or reasonable interpretation of the order at 19 issue. See Inst. of Cetacean Res. v. Sea Shepherd Conservation Society, 774 F.3d 935, 945 (9th 20 Cir. 2014); United States v. Bright, 596 F.3d 683, 694 (9th Cir. 2010). 21 The Court has two sources of sanctions authority. First, the Court has “inherent power” to 22 sanction litigants for a “‘full range of litigation abuses.’” Evon v. Law Offices of Sidney Mickell, 23 688 F.3d 1015, 1035 (9th Cir. 2012) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 55 24 (1991)). Second, Federal Rule of Civil Procedure 37 authorizes district courts to impose 25 sanctions for, inter alia, failing to obey a discovery order. Here, Plaintiffs seek sanctions only 26 under Rule 37(b)(2)(C). See Dkt. 137 at 13-16. 27 28 Rule 37(b) provides that, if a party fails to obey an order to provide or permit discovery, “the court must order the disobedient party . . . to pay the reasonable expenses, including RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 7 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 8 of 20 1 attorney’s fees, caused by the failure, unless the failure was substantially justified or other 2 circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). No sanctions are 3 appropriate here, and certainly not under Rule 37(b). First, Defendants have not violated the 4 Court’s orders. Second, even if Defendants misconstrued the Court’s intent and inadvertently 5 violated an order, special circumstances exist as to each category of information at issue that 6 substantially justify Defendants’ conduct and would make an award manifestly unjust. Third, 7 with respect to the amount of attorneys’ fees sought, Plaintiffs have wholly disregarded the 8 causation element of Rule 37. See Fed. R. Civ. P. 37(b)(2)(C) (“caused by the failure”). The 9 Ninth Circuit has repeatedly held that an award of attorneys’ fees under this provision is limited 10 to fees directly attributable to, i.e., “caused” by, the failure to obey the order. A sanctions motion 11 cannot be used to shift the cost of litigating discovery matters other than the cost of remedying 12 the violation of a court order. Here, even assuming any fees could be properly assessed against 13 Defendants, no attorney time prior to February 28, 2018—when the first of the three alleged 14 violations took place—is compensable. 15 B. Defendants Have Not Violated Any Court Order 16 Although Plaintiffs spend the bulk of their brief challenging the pace of discovery, their 17 request for sanctions is limited to three items: 5 (1) production of the list of class members with 18 identifying information redacted pending the Court’s ruling on Defendants’ motion for a 19 supplemental protective order; (2) production of redacted A Files for the named plaintiffs; and 20 21 22 23 24 25 26 27 28 5 Although Plaintiffs do not ask for an order relating to the production of documents responsive to RFP Nos. 23 and 24, they argue Defendants violated the Court’s order to produce those materials on a specific timeline. Dkt. 137 at 7, 8. In its January 10, 2018 order, the Court directed the parties to meet and confer about search terms and custodians, and directed Defendants to search for and produce responsive documents within set timeframes. Following three meet-and-confer sessions (January 26, 29, and 31), the parties were at an impasse over search terms and custodians, and Plaintiffs sought the Court’s intervention, leading to the February 8, 2018 hearing. At that time, Plaintiffs raised the overall discovery schedule, as well as the search terms and custodians issue, and the Court took the matter of the overall case discovery schedule under advisement. Defendants, who had been planning to prioritize production of the nonprivileged materials responsive to RFP Nos. 23 and 24 (using their proposed search terms and custodians pending judicial resolution of Plaintiffs’ objections) on the court-ordered schedule, then understood the production deadlines in the January 10, 2018 order concerning RFP Nos. 23 and 24 to be subsumed in the larger issue of the overall case discovery schedule that the Court had under active consideration. If Defendants were mistaken, that mistake was made in good faith. RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 8 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 9 of 20 1 (3) Defendants’ statement that it would be inappropriate to ask the former Secretary of 2 Homeland Security and current White House Chief of Staff whether he served on the PETT. 3 1. The Class List 4 On February 14, 2018, at a telephonic hearing, the Court acknowledged that Defendants 5 intended to seek further relief related to production of the class list. See note 4, supra; Dkt. 140, 6 Ex. L, at 27:17-28:2. Then, on March 1, 2018, in accordance with the Court’s prior suggestions, 7 see Dkts. 98 at 4, and 102 at 3, Defendants moved for a limited protective order relating to 8 access, disclosure, and transmittal of sensitive information on the class list. Dkt. 126. On March 9 5, 2018, Defendants produced the class list, but withheld the names, A numbers, and application 10 filing dates, pending a ruling on their motion. Carilli Decl., Ex. 6 (Mar. 5, 2018 e-mail). That 11 motion was pending when Plaintiffs filed their sanctions motion. Defendants await the Court’s 12 ruling on their motion, and will take appropriate steps once the Court rules. Sanctions are not 13 appropriate because Defendants are not violating any Court order concerning the class list. The 14 Court itself invited Defendants’ effort to obtain tailored protection for the information at issue, 15 and Defendants have not indicated any intent to withhold the information the Court has ordered 16 disclosed in defiance of the Court’s order; rather, Defendants are simply awaiting a ruling from 17 the Court on the protective order motion that the Court itself twice suggested. 18 19 2. The Named Plaintiffs’ Information In the February 13, 2018 Joint Status Report, Defendants indicated they would produce 20 copies of the named Plaintiffs’ A Files by February 28, 2018. Dkt. 114 at 4. In that report, 21 Plaintiffs asserted the A Files should be produced un-redacted; Defendants responded that they 22 would produce non-privileged documents in the A Files, consistent with their understanding that 23 the Court’s October 19, 2017 order left open their ability to assert privilege over particular pieces 24 of information in the A Files (as distinct from the earlier categorical claim of privilege 25 concerning the identity of persons subjected to CARRP, which the Court rejected). At a 26 telephonic hearing on February 14, 2018, the Court acknowledged that Defendants intended to 27 claim privilege over documents in the A Files, including “why” documents. 28 RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 9 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 10 of 20 2 MR. WHITE: And our intention would be, as we said earlier, to only redact that which we believe to be privileged that needs to be redacted, and provide a privilege log that identifies the privilege being claimed and the basis for it. 3 THE COURT: Okay. All right. Enough said on Item No. 6. 1 4 5 Dkt. 140, Ex. L, at 26:7-13. On February 28, 2018, Defendants produced the A Files, protecting certain information 6 under the attorney-client, deliberative process, and law enforcement privileges, Carilli Decl., Ex. 7 5 (Feb. 28, 2018 Ltr), and, on March 16, 2018, produced the corresponding privilege logs, Dkt. 8 140, Ex. Q. Defendants have complied with all Court orders and the production schedule agreed 9 to by the parties (which is not a Court order). Further, Defendants and non-party government 10 agencies have not yet fully formally asserted, explained or briefed the privileges applicable to the 11 redactions taken from the named Plaintiffs’ A files, because Plaintiffs have never filed a direct 12 challenge to those redactions. Nevertheless, in an abundance of caution, Defendants have filed 13 as exhibits to this opposition declarations formally asserting privileges applicable to the redacted 14 A File information. 6 See Declarations of Douglas Blair, Matthew D. Emrich, Carl Ghattas, 15 Tatum King, Corey A. Price, and John P. Wagner. Defendants are contemporaneously filing a 16 motion for leave to submit additional declarations ex parte containing law enforcement sensitive 17 information for the Court’s in camera review. To the extent the content of any declaration does 18 not require ex parte, in camera protection, Defendants are filing the declaration on the public 19 docket. Nevertheless, despite the filing of these declarations, Defendants respectfully submit that 20 the importance and sensitive nature of the information at issue requires thorough briefing before 21 the Court rules on the claims of privilege asserted in these declarations. 22 23 24 25 26 27 28 6 Defendants, and other government agencies, reserve the right to assert the state secrets privileged over information otherwise discoverable in this case. Consistent with judicial guidance, Defendants will invoke that privilege only as a last resort, as the privilege “is not to be lightly invoked.” United States v. Reynolds, 345 U.S. 1, 7 (1953). Department of Justice policy also imposes strict procedures on the privilege’s assertion, and we must comply with those procedures as well. See https://www.justice.gov/opa/pr/attorney-general-establishes-new-state-secretspolicies-and-procedures (Last visited Apr. 5, 2018). In addition, Defendants withheld certain visa related information under 8 U.S.C. § 1202(f). “Under 8 U.S.C. § 1202(f) the Secretary of State has no authority to disclose material to the public.” Medina-Hincapie v. Dep’t of State, 700 F.2d 737, 741-42 (D.C. Cir. 1983) (footnotes and citations omitted). Accordingly, it is sufficient that the records “pertain[]to the issuance or refusal of visas or permits to enter the United States” in order to sustain those withholdings. 8 U.S.C. § 1202(f). Similarly Sensitive Security Information (“SSI”) is protected from disclosure by statute and regulation, and the decision to withhold such information from disclosure is reviewable only in the United States Courts of Appeals, pursuant to 49 U.S.C. § 46110. 49 U.S.C. § 114; 49 C.F.R. Part 1520. See Declaration of Douglas Blair, ¶ 4. RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 10 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 11 of 20 1 3. Secretary Kelly 2 The Court has previously explained “that intruding on the Executive in this context is a 3 matter of last resort, Cheney v. U.S. Dist. Ct. for the Dist. Of Columbia, 542 U.S. 367 (2004).” 4 Dkt. 98 at 5. On February 14, 2018, the Court ordered Defendants to identify to Plaintiffs who 5 among the named custodians had served on the PETT. Dkt. 140, Ex. L., at 21:5-8 (“Of the 6 Custodians in this litigation, who among them were on the transition team?”). 7 On March 9, 2018, Defendants identified to Plaintiffs whether 40 of the 41 named 8 Custodians had served on the President-Elect Transition Team, with the single exception of 9 Secretary Kelly. Dkt. 140, Ex. R. Defendants explained that: [g]iven Gen. Kelly’s current position as the President’s Chief of Staff and the limits on discovery from the President and his close advisors, see Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 542 U.S. 367 (2004), [Defendants] have not inquired directly with Gen. Kelly whether he was on the President-Elect Transition Team, and do not believe it is appropriate or necessary to do so. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Id. Given that the Court’s February 14, 2018 oral order did not directly address Secretary Kelly, Defendants understood the Court’s order in the context of its prior order refusing to permit discovery from the President and his close advisors because of the serious concerns it would raise about Executive privilege, intruding on a co-equal branch of government, and the distraction it would cause to a senior government official to attend to a tangential issue in this litigation. Dkt. 98 at 5; see also In re United States, 985 F.2d 510, 512 (11th Cir. 1993). Moreover, it is unclear, what benefit further inquiry would have as Secretary Kelly has already been identified as a custodian, his Department of Homeland Security emails are already undergoing review for responsiveness and privilege and, under long-standing Supreme Court precedent, he is protected from being deposed. United States v. Morgan, 313 U.S. 409, 422 (1941) (noting “[T]he Secretary should never have been subjected to . . . examination” and “it was not the function of the court to probe the mental processes of the Secretary”) (internal quotation marks omitted); see also Cheney, 542 U.S. 367; PBGC v. LTV Corp., 496 U.S. 633 (1990); United States v. Nixon, 418 U.S. 683 (1974). 28 RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 11 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 12 of 20 1 2 C. Assuming, Arguendo, Defendants Inadvertently Violated an Order, Defendants Were Substantially Justified and Other Circumstances Exist As to Each Category of Discovery that Would Make Sanctions Unjust 3 As outlined above, Defendants have not violated any of the Court’s orders. However, to 4 the extent Defendants might have misunderstood an order, and therefore not complied with the 5 Court’s intent, Defendants’ actions are substantially justified and, in any event, other 6 circumstances would make an award unjust. See Fed. R. Civ. P. 37(b)(2)(C). 7 8 9 1. Defendants’ Position Is Substantially Justified Substantial justification “does not mean ‘justified to a high degree’, but is satisfied if there is a ‘genuine dispute’ or ‘if reasonable people could differ’ as to the appropriateness of the 10 contested action.” Guam Indus. Servs., Inc. v. Zurich Am. Ins. Co., Nos. 11-00014 & 11-0031, 11 2011 WL 4525228, *2 (D. Guam Aug. 26, 2013) (applying Pierce v. Underwood, 487 U.S. 552 12 (1988) to substantial justification under Rule 37(b)(2)). Here, Defendants’ positions were all 13 substantially justified. Defendants produced a redacted class list while awaiting the Court’s 14 decision on a motion for a limited protective order that the Court twice suggested the parties file. 15 Defendants produced redacted A Files because privilege assertions over particular pieces of 16 information in the A Files were not—indeed, could not have been—litigated earlier without 17 waiving other privileges that logically had to be adjudicated first. Defendants identified all of the 18 custodians who served on the PETT with the single exception of Secretary Kelly because of his 19 unique position as White House Chief of Staff, the constitutional and prudential limits on 20 discovery from close advisors to the President, and longstanding precedent limiting discovery 21 from Cabinet Secretaries. Because a reasonable person could conclude Defendants acted in 22 accordance with the Court’s directives, sanctions under Rule 37(b)(2)(C) cannot be granted. 23 2. Other Circumstances Make an Award of Attorneys’ Fees Unjust 24 In addition to Defendants’ actions being substantially justified, other circumstances also 25 make an award of attorneys’ fees unjust. A number of these apply equally to all three of the 26 asserted violations: uncertainty regarding the Court’s oral directives; the need to litigate 27 privileges one after another to avoid waiving privileges; concerns of national security and public 28 policy; and the lack of prejudice to Plaintiffs, including the potential for attorneys’ fees at the RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 12 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 13 of 20 1 conclusion of the case, all weigh against an award of attorneys’ fees in the midst of discovery. 2 Additional considerations specific to each alleged violation are also present. As a result—even if 3 Defendants inadvertently violated an order, and even if it was not substantially justified—an 4 award of attorneys’ fees would still be improper. 5 a. Circumstances that Apply to All Issues 6 There are a number of circumstances that apply equally to the three alleged violations. 7 First, the Court’s responses at the February 14, 2018 hearing to Defendants’ intended actions 8 counsel against imposition of sanctions. An oral statement may be an “order” for purposes of 9 Rule 37, but only if it provides unequivocal notice that specific documents must be produced. 10 See Henry v. Sneiders, 490 F.2d 315, 318 (9th Cir. 1974) (emphasis added). Here, the Court 11 responded to Defendants’ stated intentions with regard to the class list and the “why” documents 12 in a way that appeared to indicate agreement. See Dkt. 140, Ex. L, at 26:7-13; 27:17-28:2. 13 Likewise, the Court’s statements concerning its reluctance to intrude on the Executive provide 14 reasonable grounds for Defendants to have understood the February 14, 2018 order concerning 15 the PETT issue generally as not applying in the same way to Secretary Kelly as to the other 16 custodians. If Defendants have misinterpreted the Court’s intentions, the appropriate course of 17 action is clarification, not sanctions. 18 Second, there are layered privileges at issue that must be litigated in succession. 19 Defendants could not have asserted, in the Fall of 2017, privileges over particular pieces of 20 information concerning why the named plaintiffs were allegedly subject to CARRP without 21 waiving their assertion of privilege over whether they were subject to CARRP and who is in the 22 class. It would be unjust to punish Defendants for seeking to withhold privileged information 23 over which particular claims of privilege have not been previously litigated, and that Defendants 24 reasonably believe were not before the Court when the Court issued its October 19, 2017 order. 25 Third, “[p]ublic policy concerns must also be weighed.” Halaco Eng’g Co. v. Costle, 843 26 F.2d 376, 382 (9th Cir. 1988). Here, Plaintiffs are seeking thousands of names of individuals 27 who have an articulable link to a national-security related ground of inadmissibility; the reasons 28 why the five named Plaintiffs are allegedly within that group; and information directly RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 13 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 14 of 20 1 concerning one of the senior-most individuals in the federal government. Defendants are 2 understandably reticent to give the Court’s directives a more expansive reading than may be 3 required. Indeed, public policy demands that national security information be protected to the 4 fullest extent possible. Defendants would be remiss in this duty to disclose more than is required. 5 Fourth, “[a] final consideration is the existence and degree of prejudice to the wronged 6 party.” Halaco Eng’g Co., 843 F.2d at 382; see also Montano v. Solomon, No. 07-cv-0800, 2010 7 WL 1947041, *1 (E.D. Cal. May 13, 2010) (finding extension to discovery deadline rendering 8 prejudice de minimis constituted substantial justification for failure to comply with production 9 deadline). Here, Plaintiffs have not identified any prejudice from any alleged violation of any 10 specific order. Instead, Plaintiffs suggest that “delays have dramatically driven up the costs of 11 litigation” that “make it very difficult for Plaintiffs to move forward with this case.” Dkt. 137 at 12 14. It is not clear what this means, or how delay alone results in costs to Plaintiffs. Plaintiffs also 13 suggest that delays “allow unconstitutional programs to persist.” Dkt. 137 at 14. But this is 14 nothing more than a conclusory assertion of what Plaintiffs allege in their Complaint. An 15 unproven claim set in a time frame remains an unproven claim. It is not prejudice. In any event, 16 this motion for sanctions is not Plaintiffs’ only opportunity to shift the cost of the litigation onto 17 Defendants. If Plaintiffs prevail in this case, they may seek to recover reasonable attorneys’ fees 18 under EAJA. Finally, before Plaintiffs filed their sanctions motion, Defendants stipulated to 19 vacate expert discovery deadlines, to ensure discovery would be available to Plaintiffs’ expert, 20 should they decide to retain one. Dkt. 136. 21 22 23 b. Circumstances Specific to Individual Issues i. The Class List Is Subject to a Pending Motion Plaintiffs’ sanctions motion, with respect to the class list, is frivolous. Defendants have 24 not refused to comply with the Court’s order to produce the class list. Rather, at the Court’s 25 urging, Defendants properly and timely moved for a supplemental protective order concerning 26 how the highly sensitive information the list contains is to be accessed and maintained, and have 27 only retained identifying information pending the Court’s ruling on their motion. Defendants will 28 take appropriate action once the Court rules on that motion. Plaintiffs’ effort to have Defendants RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 14 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 15 of 20 1 sanctioned while Defendants’ motion is pending before the Court is both inappropriate and 2 disrespectful of the Court’s crowded docket. This is especially true given that Defendants 3 stipulated to vacate expert discovery deadlines before Plaintiffs filed their sanctions motion. To 4 the extent Plaintiffs intend to use information on the class list in an expert report they remain 5 able to do so. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. Secretary Kelly’s Involvement in This Litigation Presents Unique Separation-of-Powers Issues Defendants answered Plaintiffs’ question about which custodians worked on the PETT, as ordered by the Court, for every custodian except Secretary Kelly. Secretary Kelly’s situation, however, presents a unique situation. He cannot be deposed with respect to his time as Secretary under the Morgan doctrine (though Defendants have collected documents (including emails) responsive to the RFPs from Secretary Kelly’s time as Secretary of Homeland Security). Carilli Dec., ¶ 6. Nor can he be deposed with respect to his time as White House Chief of Staff, because he is shielded by Executive Privilege. Further, given the publicly available facts concerning Secretary Kelly’s pre-inauguration activities and his current position as Chief of Staff to the President, it would be an unnecessary and unjustified intrusion into the functioning of the White House to involve Secretary Kelly in discovery in this case, as this Court previously recognized. See Dkt. 98 at 5 (“Court does not find that the record before it justifies [] an intrusion [on the Executive]”). Defendants, therefore, in light of the language concerning Executive Privilege and White House discovery in the Court’s October 19, 2017 order, understand the Court’s February 14, 2018 oral order, concerning the PETT, not to require Defendants to inquire with Secretary Kelly concerning whether he previously worked for the PETT. Consequently, Defendants maintain they have not violated the Court’s February 14, 2018 order; if they misunderstood the Court’s command, the misunderstanding was in good faith. Further, Plaintiffs utterly fail to identify any prejudice from Defendants not having directly asked Secretary Kelly whether he worked for the PETT. D. Plaintiffs Are Not Entitled to Attorneys’ Fees Plaintiffs are not entitled to attorneys’ fees, first and foremost, because Defendants have not violated any Court order. Further, even if the Court concludes some aspect of Defendants’ RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 15 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 16 of 20 1 conduct is not what the Court intended with respect to a particular order, any such conduct was 2 not intended to violate a Court order, and a variety of special circumstances make a fee award 3 unjust. Finally, even assuming, arguendo, that some fees could properly be assessed, Plaintiffs 4 are not entitled to payment for the vast majority of their claimed time because the expenditure of 5 that time was not “caused by the failure” to obey an order. See Fed. R. Civ. P. 37(b)(2)(C). 6 Additionally, the claims themselves are excessive and improperly documented. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a. Rule 37(b)(2)(C) Only Authorizes Award of Fees “Caused by the Failure” to Obey an Order Citing Federal Rule of Civil Procedure 37(b)(2)(C), Plaintiffs request the Court award them attorneys’ fees “starting with the September Motion to Compel.” Dkt. 137 at 13-14. Ninth Circuit precedent, however, clearly establishes that the fees Plaintiffs seek are orders of magnitude greater than what that rule authorizes. Rule 37(b)(2) “provides for the award of reasonable expenses and attorney’s fees ‘caused by the failure’ to obey a court order to provide or permit discovery. Expenses incurred outside of this particular context are not provided for in Rule 37(b)(2).” Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1385-86 (1988); see also Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d 363, 368 (9th. Cir. 1992) (“Rule 37(b)(2) has never been read to authorize sanctions for more general discovery abuse.”). In addition, Rule 37(b)(2) “‘must be distinguished from Rule 37(a), which provides for the award of expenses resulting from efforts to secure an order compelling discovery.’” Toth, 862 F.2d at 1386 n.2 (quoting Liew v. Breen, 640 F.2d 1046, 1051 (9th Cir. 1981)). “Thus, ‘attorney-time before and during’ a hearing in which a court order is imposed is ‘not attorney-time incurred on account of failure to obey an order.’” Id. (quoting Liew, 640 F.2d at 1051) (emphasis added); United States v. Nat’l Medical Enters. Inc., 792 F.2d 906, 910 (9th Cir. 1986) (quoting Shuffer v. Heritage Bank, 720 F.2d 1141, 1148 (9th Cir. 1983) (“a compensatory award is limited to the ‘actual losses sustained as a result of the contumacy.’”); see also Wm. T. Thompson Co. v. Gen. Nutrition Corp., 104 F.R.D. 119, 121-22 n.1 (C.D. Cal. 1985) (no entitlement to expenses for motion to compel where no relief pursuant to Rule 37(a) was sought). Here, although Plaintiffs seek fees starting with their September 2017 motion to compel, Defendants’ first alleged failure to obey a discovery order did not occur (even allegedly) before RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 16 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 17 of 20 1 February 28, 2018, the date on which Defendants produced redacted A Files, allegedly violating 2 the Court’s October 19, 2017 order. Consequently, the earliest possible date on which Plaintiffs 3 can reasonably contend Defendants failed to obey any order of this Court is February 28, 2018, 4 and all the time they have claimed prior to that date cannot possibly have been caused by 5 Defendants’ alleged violation of a court order. The award of attorneys’ fees for time spent by 6 Plaintiffs’ counsel working on this case prior to February 28, 2018, would require the Court to 7 disregard binding Ninth Circuit precedent that the dollar amount of fees sought as a sanction 8 must be specifically tailored to the disobedient conduct that is challenged. See Toth, 862 F.2d at 9 1386 (remanding for adjustment of sanctions award “[b]ecause the costs and fees awarded were 10 not properly segregated to those expenses caused by the failure to obey court orders, as 11 circumscribed by [Rule] 37(b)(2).”). Any fees Plaintiffs seek for work performed before 12 February 28, 2018, are not compensable because it is impossible that any such expenses were 13 “caused by the failure to obey court orders.” b. The Claimed Amounts Are Improper 14 15 Of the ten attorneys for whose work Plaintiffs seek fees, only six performed work on the 16 case on or after February 28, 2018. 7 Dkt. 139-45. Assuming arguendo that all post-February 28, 17 2018, work of the those six attorneys was specifically related to the allegedly disobedient 18 conduct, the maximum possible amount this Court could award Plaintiffs based on those records 19 would be $14,532.00, rather than the $219,974.02 that Plaintiffs claim. 8 20 III. 21 CONCLUSION For the foregoing reasons, Plaintiffs’ Motion for Sanctions should be denied. 22 23 24 25 26 27 28 7 Attorneys Pasquarella, Realmuto, Schneider, and Tolchin do not claim fees for work performed on or after February 28, 2018. Dkt. 139 at 5; 142 at 8-27; 143 at 7-9; 144 at 6; 145 at 6. Attorneys Adams, Ahmed, Gellert, Handeyside, Hennessey, and Perez claim fees for work occurring on or after February 28, 2018. Dkt. 141 at 6; Dkt. 142 at 26-27; Dkt. 143 at 12. 8 Defendants respectfully request the opportunity to provide the Court both a line-item analysis and an evaluation of the hourly rates claimed by Plaintiffs’ counsel, should the Court conclude Plaintiffs are entitled to fees for work prior to February 28, 2018. Similarly, Defendants reserve the right to challenge any fees the records for which were not appended to the motion for sanctions. RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 17 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 18 of 20 1 2 3 4 Dated: April 9, 2018 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General EDWARD S. WHITE Senior Litigation Counsel, National Security & Affirmative Litigation Unit WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation 13 /s/ Aaron R. Petty AARON R. PETTY JOSEPH F. CARILLI, JR. CHRISTOPHER C. HOLLIS Trial Attorneys, National Security & Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice 219 S. Dearborn St. Chicago, IL 60604 Tel: (202) 532-4542 Fax: (202) 305-7000 Email: aaron.r.petty@usdoj.gov 14 Counsel for Defendants 5 6 7 8 9 10 11 12 TIMOTHY M. BELSAN Deputy Chief, National Security & Affirmative Litigation Unit 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 18 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 19 of 20 1 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 9, 2018, I electronically filed the foregoing with the 3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to the 4 following CM/ECF participants: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Harry H. Schneider, Jr., Esq. Nicholas P. Gellert, Esq. David A. Perez, Esq. Laura Hennessey, Esq. Perkins Coie L.L.P. 1201 Third Ave., Ste. 4800 Seattle, WA 98101-3099 PH: 359-8000 FX: 359-9000 Email: HSchneider@perkinscoie.com Email: NGellert@perkinscoie.com Email: DPerez@perkinscoie.com Email: LHennessey@perkinscoie.com Matt Adams, Esq. Glenda M. Aldana Madrid, Esq. Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 PH: 957-8611 FX: 587-4025 E-mail: matt@nwirp.org E-mail: glenda@nwirp.org Emily Chiang, Esq. ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 E-mail: Echiang@aclu-wa.org 24 25 26 27 28 RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 19 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146 Filed 04/09/18 Page 20 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Jennifer Pasquarella, Esq. Sameer Ahmed, Esq. ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles, CA 90017 Telephone: (213) 977-5211 Facsimile: (213) 997-5297 E-mail: jpasquarella@aclusocal.org E-mail: sahmed@aclusocal.org Stacy Tolchin, Esq. Law Offices of Stacy Tolchin 634 S. Spring St. Suite 500A Los Angeles, CA 90014 Telephone: (213) 622-7450 Facsimile: (213) 622-7233 E-mail: Stacy@tolchinimmigration.com Trina Realmuto, Esq. Kristin Macleod-Ball, Esq. American Immigration Council 100 Summer St., 23rd Fl. Boston, MA 02110 Tel: (857) 305-3600 Email: trealmuto@immcouncil.org Email: kmacleod-ball@immcouncil.org Lee Gelernt, Esq. Hugh Handeyside, Esq. Hina Shamsi, Esq. American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 Telephone: (212) 549-2616 Facsimile: (212) 549-2654 E-mail: lgelernt@aclu.org E-mail: hhandeyside@aclu.org E-mail: hshamsi@aclu.org 24 25 26 27 /s/ Aaron R. Petty AARON R. PETTY Trial Attorney, National Security & Affirmative Litigation Unit 28 RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS - 20 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 1 of 39 1 The Honorable Richard A. Jones 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 ABDIQAFAR WAGAFE, et al., Plaintiffs, 11 v. 12 13 DONALD TRUMP, President of the 14 United States, et al., 15 No. 2:17-cv-00094-RAJ DECLARATION OF JOSEPH F. CARILLI, JR. Defendants. 16 I, Joseph F. Carilli, Jr., counsel for Respondents hereby declare and state the following: 17 1. I am a member of the State Bar of New Hampshire. I am employed as a Trial 18 Attorney at U.S. Department of Justice, Civil Division, Office of Immigration Litigation, District 19 Court Section. I have personal knowledge of the events described therein, and could testify to 20 them if called to do so. 21 2. I represent Defendants in the above captioned case. 22 3. I am responsible for overseeing the production of documents in the above 23 captioned case, to include overseeing the upload of documents into the review platform, and the 24 completion of technology assisted review (“TAR”). 25 4. On January 19 and 26, 2018, counsel for Plaintiffs and counsel for Defendants 26 held a meet and confer about the production timeline. During the meet and confer, counsel for 27 the parties discussed the status of the TAR process. Counsel for Defendants informed counsel 28 for Plaintiffs that the TAR process was progressing, but the TAR process was not complete. DECLARAT ION OF JOSEPH F. CARILLI, JR. - 1 (2:17-cv-00094-RAJ) Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 2 of 39 1 5. On February 8, 2018, during a court ordered break during the hearing on the 2 Court’s LCR 37 Order, counsel for the parties discussed the TAR process. Counsel for 3 Defendants chronicled the actions taken thus far to complete the TAR process. 4 6. Department of Justice has uploaded into the review platform all documents 5 potentially responsive to RFP Nos. 23 and 24 chronicled in the February 23, 2018 status report, 6 ECF No. 124: (1) all Defendant U.S. Citizenship and Immigration Services (“USCIS”) 7 potentially responsive documents maintained on unclassified systems; and, (2) Defendant 8 Department of Homeland Security (“DHS”) potentially responsive documents maintained on 9 unclassified systems, with the exception of two non-custodial sources and named custodian 10 individual network drives and hard drives. This upload of documents includes the electronic 11 mail messages of Gen. John F. Kelly. 12 13 14 7. On September 11, 2017, Defendants sent Plaintiffs Defendants’ ESI Disclosures. A true and correct copy of Defendants’ ESI Disclosures is attached hereto as Exhibit 1. 8. On November 6, 2017, Defendants sent Plaintiffs Defendants’ First Supplement 15 to ESI Disclosures. A true and correct copy of Defendants’ First Supplement to ESI Disclosures 16 is attached hereto as Exhibit 2. 17 9. On November 17, 2017, Defendants, via letter, identified the 12 search terms that 18 Defendants would be applied to the named Custodians in the Defendants’ First Supplement to 19 ESI Disclosures. A true and correct copy of the letter is attached hereto as Exhibit 3. 20 10. On January 10, 2018, Defendants, via letter, agreed to Plaintiffs’ requested 21 additional 20 search terms that Defendants would be applied to the named Custodians in the 22 Defendants’ First Supplement to ESI Disclosures. A true and correct copy of the letter is 23 attached hereto as Exhibit 4. 24 11. On February 28, 2018, Defendants produced Production Volume Defendant 25 USCIS Volume 006, which included the alien files for the named Plaintiffs. A true and correct 26 copy of the transmittal letter sent to Plaintiffs is attached hereto as Exhibit 5. 27 28 DECLARAT ION OF JOSEPH F. CARILLI, JR. - 2 (2:17-cv-00094-RAJ) Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 3 of 39 1 12. On March 5, 2018, Defendants produced the class list to Plaintiffs. A true and 2 correct copy of the transmittal electronic mail message sent to Plaintiffs is attached hereto as 3 Exhibit 6. 4 5 6 7 8 9 Dated: April 9, 2018 Respectfully submitted, /s/ Joseph F. Carilli, Jr. JOSEPH F. CARILLI, JR. E-mail: joseph.f.carilli2@usdoj.gov N.H. Bar Identification No. 15311 Trial Attorney United States Department of Justice, Civil Division Office of Immigration Litigation, District Court Section 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARAT ION OF JOSEPH F. CARILLI, JR. - 3 (2:17-cv-00094-RAJ) Case Document 146-1 Filed 04/09/18 Page 4 of 39 1311111 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 5 of 39 THE HONORABLE RICHARD A. JONES 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 ABDIQAFAR WAGAFE, et al., on behalf of themselves and others similarly situated, 11 12 13 14 No. 17-cv-00094 RAJ DEFENDANTS’ ESI DISCLOSURES Plaintiffs, v. DONALD TRUMP, President of the United States, et al., Defendants. 15 16 17 18 19 20 21 Pursuant to Paragraph B of the stipulated order and agreement regarding discovery of electronically stored information (ECF No. 88), Defendants disclose the following information which is known to them as of the date of the transmittal of these disclosures: 22 23 24 25 26 27 28 CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER DEFENDANTS’ ESI DISCLOSURES - 1 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 6 of 39 1. Custodians 1 2 3 4 Below is a list of the custodians most likely to have discoverable ESI in the named Defendants’ possession, custody, or control. As stated in the ESI Protocol, the Parties shall meet and confer regarding which custodians are appropriate to collect from for purposes of responding to discovery requests. 5 6 Name Title 7 Ronald A. Atkinson Acting Chief, Section Chief of FDNS Office of National Security Branch Legislative Affairs in 2008, and continued to work on CARRP until 2014 Division Chief, Portfolio includes national National Security security, including and Benefits CARRP, 2007-present Integrity Division, Office of Policy and Strategy Chief, Field Portfolio includes Operations CARRP, and providing Directorate guidance to the field on (FDNS Ops CARRP policy, 2009Branch) present Chief, National Portfolio includes national Security Branch, security issues, including Screening and CARRP, in current Fraud Office, position (May 2017SCOPS present); formerly was FDNS National Security division chief (Aug. 2016May 2017) Chief, National Portfolio includes national Security and security, including Public Safety CARRP, 2014-present Division, FDNS Chief, Reports and Runs reports and analysis, Analysis Branch, including for CARRP, for FDNS FDNS (2014-present) 8 9 10 11 Christina Hamilton 12 13 14 15 Jaime Benevides 16 17 18 Mark Freeman 19 20 21 22 Susan Knafla 23 24 25 Markus Montezemolo 26 Connection to litigation Type of Information Personal drives; Emails Personal drives; Emails Personal drives; Emails Personal drives; Emails Personal drives; Emails Personal drives; Emails 27 28 CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER DEFENDANTS’ ESI DISCLOSURES - 2 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 7 of 39 1 2 3 4 Ronnie Thomas Christopher Heffron 5 6 7 8 9 Chief, Office of Security and Fraud, SCOPS Section Chief, Screening Coordination Office Supervisory Immigration Officer (GS-180114), FDNS Portfolio includes national security, including CARRP, 2005-present Portfolio includes CARRP policy, Nov. 2015-present; and CARRP training, Feb. 2013-present Personal drives; Emails Personal drives; emails 2. Non-Custodial Data Sources 10 11 12 13 14 15 Below is a list of non-custodial data sources within the possession, custody, or control of the named Defendants which are most likely to contain discoverable ESI. Directorate/Office CIS Librarian St. Paul Field Office SCOPS Type of Information Ad hoc HQ organizational charts Organizational charts since 2006 (may have gaps) Organizational charts since 2015 (additional may exist in other folders, but different administrations and political leadership have saved in a variety of formats) Organization charts since 2008; A files A file SCOPS CARRP Materials FDNS FDNS CARRP Materials Office of Communications 16 17 Front Office 18 19 20 21 22 23 Seattle Field Office 24 25 26 27 28 Location IRIS Records Server, on P drive OComm ECN site OComm Share drive Front Office X drive, in Leadership organization chart folder District 20 share drive District 15 share drive SCOPS HQ ECN site SCOPS P drive, located within a few folders FDNS ECN FDNS N drive, located within several folders FDNS F drive, located within several folders CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER DEFENDANTS’ ESI DISCLOSURES - 3 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 8 of 39 1 2 3 FDNS Reports and Analysis Reports and Queries Branch related to CARRP FOIA Office FOIA responses related to CARRP policy OP&S OP&S CARRP Materials FDNS RAB team share drive FIPS case files OP&S L drive 4 5 6 7 3. Third-Party Data Sources Below is a list of third parties most likely to have discoverable ESI. Defendants are investigating the extent to which they are obligated to preserve information stored by the third party. Defendants reserve the right to seasonably supplement this information. 8 9 Name of Third Party Iron Mountain 10 11 Salient-CRG 12 13 Infozen 14 15 16 17 18 CSRA 19 20 21 22 Role Provides USCIS with nationwide offsite back-up tape storage Maintains backups of local resource servers which may contact user archive files from USCIS’s network drives Manages IT infrastructure located at the DHS datacenter under the USCIS Support for Platform Engineering and DevOps Integration (SPEDI) contract. These responsibilities include remotely maintaining FDNS-DS back-ups to tape. Provides local ‘hands and feet’ support at the DHS datacenter under the DHS Datacenter 1 (DC1) contract. These responsibilities include local handling tapes and shipment to the Iron Mountain offsite storage facility. 23 24 25 26 27 28 CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER DEFENDANTS’ ESI DISCLOSURES - 4 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 9 of 39 1 2 3 4 5 4. Inaccessible Data Below is a list of data sources within the possession, custody, or control of the named Defendants which are most likely to contain discoverable information that Defendants assert are not reasonably accessible under Fed. R. Civ. P. 26(b)(2)(B). To the extent that additional inaccessible data sources are identified in the course of discovery, or previously identified data sources are determined to be not reasonably accessible, Defendants reserve the right to seasonably supplement this list. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FDNS-DS back-up tapes o FDNS-DS back-up tapes are retained for 7 years, assuming no conditions such as data spillage or data reclassification occur within this time period. Any information that was previously retained before 2010 may have been deleted and no longer exists. More recent backup tapes may also not be available if those tapes were subject to data spillage or data reclassification. If USCIS were required restore the data from back-up tape for one day, it would take approximately two weeks and cost approximately $10,000. USCIS network drive yearly back-up tapes o These tapes are generally retained between one and six years. Headquarters backup tapes are generally retained longer than those in the field. Some back-up tapes may exist from as early as 2009, but it is highly unlikely that there are back-up tapes older than that time. If USCIS were required to restore existing back-up tape information of ten headquarters employees over a twenty-four month period, such as 2012-2014, it would cost approximately $30,000. USCIS email sent or received prior to August 1, 2014 o Email sent or received by USCIS personnel prior to August 1, 2014, with limited exceptions, is currently stored on back-up tapes due to a 2014 migration of email that occurred in the ordinary course of USCIS business. The process to restore back-up tapes is unduly burdensome, expensive, and would take information technology staff resources away from their core mission. See Fed. R. Civ. P. 26(b)(1); 26(b)(2)(C)(i). Accessing these emails would require 250 to 575 hours of active work per email account, plus additional time in transit from the storage site to the work site. Defendants may consider a specific request identifying a particular individual or individuals and a particular time frame and subject matter, and explaining in detail what material Plaintiffs seek, why it is reasonable to believe it would be found in the place identified, and the Plaintiffs’ need for such materials. 27 28 CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER DEFENDANTS’ ESI DISCLOSURES - 5 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 10 of 39 1 2 3 4 5 6 7 8 Dated: September 11, 2017 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General /s/ Aaron R. Petty AARON R. PETTY JOSEPH F. CARILLI, JR. Trial Attorneys, National Security & Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Telephone: (202) 532-4542 E-mail: Aaron.R.Petty@usdoj.gov WILLIAM C. PEACHEY Director, District Court Section TIMOTHY M. BELSAN Deputy Chief National Security & Affirmative Litigation Unit 9 10 Attorneys for Defendants 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER DEFENDANTS’ ESI DISCLOSURES - 6 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 11 of 39 1 CERTIFICATE OF SERVICE 2 3 4 5 6 I HEREBY CERTIFY that on September 11, 2017, pursuant to paragraph B of Docket No. 88, Agreement Regarding Discovery of Electronically Stored Information, I served Defendant’s ESI Disclosures by email on Nicholas Gellert, Esq., Jennie Pasquarella, Esq, David Perez, Esq., and Laura Hennessey, Esq. 7 /s/ Aaron R. Petty AARON R. PETTY U.S. Department of Justice 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER DEFENDANTS’ ESI DISCLOSURES - 7 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case Document 146-1 Filed 04/09/18 Page 12 of 39 th?tZ Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 13 of 39 1 THE HONORABLE RICHARD A. JONES 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 ABDIQAFAR WAGAFE, et al., on behalf of themselves and others similarly situated, 11 12 13 14 Plaintiffs, 17 18 19 20 21 DEFENDANTS’ FIRST SUPPLEMENT TO ESI DISCLOSURES v. DONALD TRUMP, President of the United States, et al., 15 16 No. 17-cv-00094 RAJ Defendants. Pursuant to Paragraph B of the stipulated order and agreement regarding discovery of electronically stored information (ECF No. 88), Defendants hereby supplement their ESI disclosures and disclose the following information which is known to them as of the date of the transmittal of these disclosures (added disclosures in bold text): 22 23 24 25 26 27 28 CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER DEFENDANTS’ FIRST SUPPLEMENT TO ESI DISCLOSURES - 1 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 14 of 39 1 1. Custodians 2 Below is a list of the custodians most likely to have discoverable ESI in the 3 named Defendants’ possession, custody, or control. As stated in the ESI Protocol, 4 the Parties shall meet and confer regarding which custodians are appropriate to 5 collect from for purposes of responding to discovery requests. 6 7 Name 8 Ronald A. Atkinson 9 10 11 12 13 Christina Hamilton 14 15 16 17 Jaime Benevides 18 19 20 21 Mark Freeman 22 23 24 25 26 27 28 Title Connection to litigation Acting Chief, Section Chief of Office of FDNS National Legislative Security Branch Affairs in 2008, and continued to work on CARRP until 2014 Division Chief, Portfolio includes National Security national security, and Benefits including Integrity Division, CARRP, 2007Office of Policy present and Strategy Portfolio includes Chief, Field CARRP, and Operations providing Directorate guidance to the (FDNS Ops field on CARRP Branch) policy, 2009present Chief, National Portfolio includes Security Branch, national security Screening and issues, including Fraud Office, CARRP, in SCOPS current position (May 2017present); formerly was FDNS National Security division chief Type of Information Personal drives; Emails Personal drives; Emails Personal drives; Emails Personal drives; Emails CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER DEFENDANTS’ FIRST SUPPLEMENT TO ESI DISCLOSURES - 2 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 15 of 39 1 2 Susan Knafla Chief, National Security and Public Safety Division, FDNS Markus Montezemolo Chief, Reports and Analysis Branch, FDNS Ronnie Thomas Chief, Office of Security and Fraud, SCOPS Christopher Heffron Section Chief, Screening Coordination Office Supervisory Immigration Officer (GS-180114), FDNS Associate Director, Fraud Detection and National Security Directorate 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Matthew Emrich 20 21 22 23 24 25 26 27 28 (Aug. 2016-May 2017) Portfolio includes national security, including CARRP, 2014present Runs reports and analysis, including for CARRP, for FDNS (2014present) Portfolio includes national security, including CARRP, 2005present Portfolio includes CARRP policy, Nov. 2015present; and CARRP training, Feb. 2013-present Portfolio includes overseeing all policy, planning, management, and execution functions for FDNS, which includes enhancing the integrity of the legal immigration system by Personal drives; Emails Personal drives; Emails Personal drives; Emails Personal drives; emails Personal drives; emails CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER DEFENDANTS’ FIRST SUPPLEMENT TO ESI DISCLOSURES - 3 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 16 of 39 1 2 3 4 5 6 7 8 9 10 11 12 13 Daniel Renaud 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Associate Director, Field Operations Directorate (FOD) leading USCIS’s efforts to identify threats to national security and public safety, detecting and combat immigration benefit fraud, and removing systematic and other vulnerabilities. This includes overseeing CARRP issues; Jan. 2010present Portfolio Personal drives; includes emails overseeing FOD functions, which includes adjudicating applications and petitions requiring faceto-face interviews, taking timely action on related ancillary applications and other assigned product lines, providing direct customer service and immigration information, ensuring the integrity of the CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER DEFENDANTS’ FIRST SUPPLEMENT TO ESI DISCLOSURES - 4 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 17 of 39 immigration system, and assisting applicants, petitioners and beneficiaries. This includes overseeing CARRP issues relating to FOD; Jan 2012-present 1 2 3 4 5 6 7 8 2. Non-Custodial Data Sources 9 Below is a list of non-custodial data sources within the possession, custody, 10 or control of the named Defendants which are most likely to contain discoverable 11 ESI. 12 13 14 15 Directorate/Office CIS Librarian 16 Office of Communications 17 Front Office 18 19 20 21 22 Seattle Field Office 23 24 St. Paul Field Office 25 SCOPS 26 27 28 Type of Information Location Ad hoc HQ IRIS Records Server, organizational charts on P drive Organizational charts OComm ECN site since 2006 (may have OComm Share drive gaps) Organizational charts Front Office X drive, since 2015 (additional in Leadership may exist in other organization chart folders, but different folder administrations and political leadership have saved in a variety of formats) Organization charts since District 20 share 2008; A files drive A file District 15 share drive SCOPS CARRP SCOPS HQ ECN site Materials SCOPS P drive, located within a few folders CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER DEFENDANTS’ FIRST SUPPLEMENT TO ESI DISCLOSURES - 5 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 18 of 39 FDNS FDNS CARRP Materials 7 FDNS Reports and Analysis Branch FOIA Office 8 OP&S Reports and Queries related to CARRP FOIA responses related to CARRP policy OP&S CARRP Materials 1 2 3 4 5 6 9 10 FDNS ECN FDNS N drive, located within several folders FDNS F drive, located within several folders FDNS RAB team share drive FIPS case files OP&S L drive 3. Third-Party Data Sources Below is a list of third parties most likely to have discoverable ESI. 11 Defendants are investigating the extent to which they are obligated to preserve 12 information stored by the third party. Defendants reserve the right to seasonably 13 supplement this information. 14 15 16 17 Name of Third Party Iron Mountain Salient-CRG 18 19 20 Infozen 21 22 23 24 25 CSRA 26 27 28 Role Provides USCIS with nationwide offsite back-up tape storage Maintains backups of local resource servers which may contact user archive files from USCIS’s network drives Manages IT infrastructure located at the DHS datacenter under the USCIS Support for Platform Engineering and DevOps Integration (SPEDI) contract. These responsibilities include remotely maintaining FDNS-DS back-ups to tape. Provides local ‘hands and feet’ support at the DHS datacenter under the DHS Datacenter 1 (DC1) contract. These CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER DEFENDANTS’ FIRST SUPPLEMENT TO ESI DISCLOSURES - 6 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 19 of 39 responsibilities include local handling tapes and shipment to the Iron Mountain offsite storage facility. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4. Inaccessible Data Below is a list of data sources within the possession, custody, or control of the named Defendants which are most likely to contain discoverable information that Defendants assert are not reasonably accessible under Fed. R. Civ. P. 26(b)(2)(B). To the extent that additional inaccessible data sources are identified in the course of discovery, or previously identified data sources are determined to be not reasonably accessible, Defendants reserve the right to seasonably supplement this list. FDNS-DS back-up tapes o FDNS-DS back-up tapes are retained for 7 years, assuming no conditions such as data spillage or data reclassification occur within this time period. Any information that was previously retained before 2010 may have been deleted and no longer exists. More recent backup tapes may also not be available if those tapes were subject to data spillage or data reclassification. If USCIS were required restore the data from back-up tape for one day, it would take approximately two weeks and cost approximately $10,000. USCIS network drive yearly back-up tapes o These tapes are generally retained between one and six years. Headquarters backup tapes are generally retained longer than those in the field. Some back-up tapes may exist from as early as 2009, but it is highly unlikely that there are back-up tapes older than that time. If USCIS were required to restore existing back-up tape information 27 28 CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER DEFENDANTS’ FIRST SUPPLEMENT TO ESI DISCLOSURES - 7 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 20 of 39 1 of ten headquarters employees over a twenty-four month period, 2 such as 2012-2014, it would cost approximately $30,000. 3 USCIS email sent or received prior to August 1, 2014 4 o Email sent or received by USCIS personnel prior to August 1, 2014, 5 with limited exceptions, is currently stored on back-up tapes due to a 6 2014 migration of email that occurred in the ordinary course of 7 USCIS business. The process to restore back-up tapes is unduly 8 burdensome, expensive, and would take information technology staff 9 resources away from their core mission. See Fed. R. Civ. P. 26(b)(1); 10 26(b)(2)(C)(i). Accessing these emails would require 250 to 575 11 hours of active work per email account, plus additional time in 12 transit from the storage site to the work site. Defendants may 13 consider a specific request identifying a particular individual or 14 individuals and a particular time frame and subject matter, and 15 explaining in detail what material Plaintiffs seek, why it is 16 reasonable to believe it would be found in the place identified, and 17 the Plaintiffs’ need for such materials. 18 19 20 21 22 23 24 25 26 27 28 CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER DEFENDANTS’ FIRST SUPPLEMENT TO ESI DISCLOSURES - 8 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 21 of 39 1 Dated: November 6, 2017 Respectfully submitted, 2 CHAD A. READLER Acting Assistant Attorney General /s/ Aaron R. Petty AARON R. PETTY JOSEPH F. CARILLI, JR. Trial Attorneys, National Security & Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Telephone: (202) 532-4542 E-mail: Aaron.R.Petty@usdoj.gov 3 4 5 6 7 8 WILLIAM C. PEACHEY Director, District Court Section TIMOTHY M. BELSAN Deputy Chief National Security & Affirmative Litigation Unit 9 10 Attorneys for Defendants 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER DEFENDANTS’ FIRST SUPPLEMENT TO ESI DISCLOSURES - 9 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 22 of 39 1 CERTIFICATE OF SERVICE 2 3 4 5 6 7 I HEREBY CERTIFY that on November 6, 2017, pursuant to paragraph B of Docket No. 88, Agreement Regarding Discovery of Electronically Stored Information, I served Defendants’ First Supplement to ESI Disclosures by email on Nicholas Gellert, Esq., Jennie Pasquarella, Esq, Sameer Ahmed, Esq., David Perez, Esq., and Laura Hennessey, Esq. 8 /s/ Aaron R. Petty AARON R. PETTY U.S. Department of Justice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER DEFENDANTS’ FIRST SUPPLEMENT TO ESI DISCLOSURES - 10 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case Document 146-1 Filed 04/09/18 Page 23 of 39 B11113 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 24 of 39 U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section ______________________________________________________________________________ Direct Dial: (202) 616-4848 Facsimile: (202) 305-7000 P.O. Box 868 Ben Franklin Station Washington, DC 20044-0868 November 17, 2017 VIA EMAIL Mr. Nicholas P. Gellert (NGellert@perkinscoie.com) Mr. David A. Perez (DPerez@perkinscoie.com) Ms. Laura K. Hennessey (LHennessey@perkinscoie.com) Perkins Coie 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Ms. Jennifer Pasquarella (JPasquarella@aclusocal.org) Mr. Sameer Ahmed (SAhmed@aclusocal.org) ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles, CA 90017 Re: Wagafe, et al., v. Trump, et al., No. 2:17-cv-00094-RAJ (W.D. Wash.) Proposed Search Terms Dear Counsel: Thank you for your e-mail message of October 30, 2017, wherein Plaintiffs’ counsel attached a list of additional, proposed search terms “to be used to locate custodial email and documents responsive to Plaintiffs’ first requests for production.” Defendants have reviewed the search terms and offer the following response. As an initial matter, because Plaintiffs’ counsel and Defendants’ counsel are still meeting and conferring concerning discovery related to Executive Orders 13769 and 13780, this letter response does not apply to the proposed search terms related to those Executive Orders, specifically the proposed search terms 13769, 13780, “Executive Order,” and “Extreme Vetting.” On October 6, 2017, Defendants’ counsel, via letter, described their search methodology for Custodian records. Specifically, Defendants stated their intention to search the Custodians’ electronic mail (“e-mail”) for responsive documents by applying search terms and that Defendants would identify potentially responsive documents from Custodians’ personal drives as well as shared drives via informed custodian self-identification of folders and files, to the extent they exist on those data sources. Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 25 of 39 Wagafe, et al., v. Trump, et al., No, 2:17-cv-00094-RAJ (W.D. Wash.) On October 23, 2017, Defendants’ counsel, via an e-mail message, provided Plaintiffs’ counsel a list of the search terms Defendants intended to use to search the Custodians’ email, and requested Plaintiffs’ counsel to provide any additional suggested search terms and the rationale for each. Thus, pursuant to Defendants intended approach, Defendants would only apply search terms to Custodian e-mail. To maximize the effectiveness of the search terms, U.S. Citizenship and Immigration Services (“USCIS”) counsel first worked with relevant clients and custodians to develop a list of terms that would likely return documents responsive to the requests for production (“RFP”) contained in Plaintiffs’ First Request for Production of Documents. USCIS counsel familiar with the Controlled Application Review and Resolution Program reviewed and refined the list to best address the RFPs, consulting certain custodians additional times in order to review the terms for thoroughness and to minimize the collection of non-responsive documents. On November 7, 2017, during our “meet and confer” on the discovery dispute related to Executive Orders 13769 and 13780, Plaintiffs’ counsel indicated that Plaintiffs did not intend to provide additional justification for their proposed search terms, but rather to rely as justification for their requested search terms solely on the reference they had previously provided to one or more of the requests for production for each proposed search term. The mere reference to a request for production is insufficient justification for Defendants to determine whether any additional search term will locate additional responsive documents. Arab: Defendants note that in Defendants’ Objections and Responses to Plaintiffs’ First Request for Production of Documents, Defendants stated that they do not have documents responsive to RFP 31. Regardless, Defendants are willing to consider adding this search term to the collection criteria. However, prior to applying these search terms, Defendants shall complete a test to determine whether the term brings back potentially responsive information or if the documents hitting on the terms are bringing back false positives which would disqualify the term “Articulable Link”: Defendants object to applying this term. Defendants have already searched applying the terms Controlled Application Review and Resolution Program, “CARRP,” “National Security Concern,” and “NS Concern.” Because the terms “Articulable Link” and Controlled Application Review and Resolution Program, “CARRP,” “National Security Concern,” or “NS Concern” are linked, Defendants assert that applying this search term would not be likely to uncover any additional relevant documents. “Background Check Analysis Unit”: Defendants have already searched applying this term. BCAU: Defendants have already searched applying this term. CARRP: Defendants have already searched applying this term. “CARRP Training”: Defendants have already searched applying this term. 2 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 26 of 39 Wagafe, et al., v. Trump, et al., No, 2:17-cv-00094-RAJ (W.D. Wash.) Controlled Application Review and Resolution Program: Defendants have already searched applying this term. Deconflict OR Deconfliction: Defendants object to applying this term. Defendants have already searched applying the terms Controlled Application Review and Resolution Program, “CARRP,” “National Security Concern,” and “NS Concern.” Because the terms Deconflict OR Deconfliction and Controlled Application Review and Resolution Program, “CARRP,” “National Security Concern,” or “NS Concern” are linked, Defendants assert that applying this search term would not be likely to uncover any additional relevant documents. Donkey AND (“Security Advisory” OR “SAO”): Defendants object to applying this search term. The Department of State issues a Security Advisory to U.S. diplomatic posts abroad in connection with visa applications, which do not apply to class members or Defendants. Thus, Defendants assert that applying this searching term would likely produce non-relevant documents. “Eligibility Assessment”: Defendants object to applying this term. Defendants have already searched applying the terms Controlled Application Review and Resolution Program, “CARRP,” “National Security Concern,” and “NS Concern.” Because the terms “Eligibility Assessment” and Controlled Application Review and Resolution Program, “CARRP,” “National Security Concern,” or “NS Concern” are linked, Defendants assert that applying this search term would not be likely to uncover any additional relevant documents. “External Vetting”: Defendants object to applying this term. Defendants have already searched applying the terms Controlled Application Review and Resolution Program, “CARRP,” “National Security Concern,” and “NS Concern.” Because the terms “External Vetting” and Controlled Application Review and Resolution Program, “CARRP,” “National Security Concern,” or “NS Concern” are linked, Defendants assert that applying this search term would not be likely to uncover any additional relevant documents. “FDNS National Security Training”: Defendants have already searched applying this term. “Final Adjudication”: Defendants object to applying this term. This term could apply to any application, petition, or request, and, thus, does not apply exclusively to an immigration benefit application that raises a national security concern or that is subjected to the CARRP. Thus, Defendants assert that applying this searching term would likely produce non-relevant documents. FOCUS: Defendants have already searched applying this term. “Internal Vetting”: Defendants object to applying this term. Defendants have already searched applying the terms Controlled Application Review and Resolution Program, 3 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 27 of 39 Wagafe, et al., v. Trump, et al., No, 2:17-cv-00094-RAJ (W.D. Wash.) “CARRP,” “National Security Concern,” and “NS Concern.” Because the terms “Internal Vetting” and Controlled Application Review and Resolution Program, “CARRP,” “National Security Concern,” or “NS Concern” are linked, Defendants assert that applying this search term would not be likely to uncover any additional relevant documents. Islam: Defendants note that in Defendants’ Objections and Responses to Plaintiffs’ First Request for Production of Documents, Defendants stated that they do not have documents responsive to RFP 29 and RFP 30. Further, Defendant USCIS does not track adjustment of status or naturalization cases by religion. Regardless, Defendants are willing to consider adding this search term to the collection criteria. However, prior to applying these search terms, Defendants shall complete a test to determine whether the term brings back potentially responsive information or if the documents hitting on the terms are bringing back false positives which would disqualify the term Islamic: Defendants note that in Defendants’ Objections and Responses to Plaintiffs’ First Request for Production of Documents, Defendants stated that they do not have documents responsive to RFP 29 and RFP 30. Further, Defendant USCIS does not track adjustment of status or naturalization cases by religion. Regardless, Defendants are willing to consider adding this search term to the collection criteria. However, prior to applying these search terms, Defendants shall complete a test to determine whether the term brings back potentially responsive information or if the documents hitting on the terms are bringing back false positives which would disqualify the term “Known or Suspected Terrorist”: Defendants object to applying this term. Defendants have already searched applying the terms “National Security Concern,” and “NS Concern.” Defendants assert that any relevant documents relating to any CARRP policy, guidance, or training that include the term “Known or Suspected Terrorist” would be uncovered by applying those search terms. Thus, Defendants assert that applying this search term would not be likely to uncover any additional relevant documents. KST: Defendants object to applying this term. Defendants have already searched applying the terms “National Security Concern,” and “NS Concern.” Defendants assert that any relevant documents relating to any CARRP policy, guidance, or training that include the term KST would be uncovered by applying those search terms. Thus, Defendants assert that applying this search term would not be likely to uncover any additional relevant documents. “Letterhead Memorandum”: Defendants object to applying this term. A Letterhead Memorandum potentially addresses any positive response to an FBI name check, and therefore does not exist solely to address an immigration benefit application that raises a national security concern nor to address an immigration benefit application that is subjected to CARRP. Thus, Defendants assert that applying this searching term would likely produce non-relevant documents 4 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 28 of 39 Wagafe, et al., v. Trump, et al., No, 2:17-cv-00094-RAJ (W.D. Wash.) LHM: Defendants object to applying this term. A Letterhead Memorandum potentially addresses any positive response to an FBI name check and therefore does not exist solely to address an immigration benefit application that raises a national security concern nor to address an immigration benefit application that is subjected to the CARRP. Thus, Defendants assert that applying this searching term would likely produce non-relevant documents. Muslim: Defendants note that in Defendants’ Objections and Responses to Plaintiffs’ First Request for Production of Documents, Defendants stated that they do not have documents responsive to RFP 29 and RFP 30. Further, Defendant USCIS does not track adjustment of status or naturalization cases by religion. Regardless, Defendants are willing to consider adding this search term to the collection criteria. However, prior to applying these search terms, Defendants shall complete a test to determine whether the term brings back potentially responsive information or if the documents hitting on the terms are bringing back false positives which would disqualify the term. “National Security Activities”: Defendants are willing to consider adding this search term to the collection criteria. However, prior to applying these search terms, Defendants shall complete a test to determine whether the term brings back potentially responsive information or if the documents hitting on the terms are bringing back false positives which would disqualify the term. “National Security Adjudications Unit”: Defendants have already searched applying this term. “National Security Concern”: Defendants have already searched applying this term. “National Security Indicator”: Defendants are willing to consider adding this search term to the collection criteria. However, prior to applying these search terms, Defendants shall complete a test to determine whether the term brings back potentially responsive information or if the documents hitting on the terms are bringing back false positives which would disqualify the term. “National Security Monthly Case Load”: Defendants are willing to consider adding this search term to the collection criteria. However, prior to applying these search terms, Defendants shall complete a test to determine whether the term brings back potentially responsive information or if the documents hitting on the terms are bringing back false positives which would disqualify the term. “National Security Quarterly Workload”: Defendants are willing to consider adding this search term to the collection criteria. However, prior to applying these search terms, Defendants shall complete a test to determine whether the term brings back potentially responsive information or if the documents hitting on the terms are bringing back false positives which would disqualify the term. 5 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 29 of 39 Wagafe, et al., v. Trump, et al., No, 2:17-cv-00094-RAJ (W.D. Wash.) “National Security Record”: Defendants are willing to consider adding this search term to the collection criteria. However, prior to applying these search terms, Defendants shall complete a test to determine whether the term brings back potentially responsive information or if the documents hitting on the terms are bringing back false positives which would disqualify the term. “National Security Report”: Defendants have already searched applying this term. “Non National Security”: Defendants object to applying this term. Defendants have already searched applying the terms Controlled Application Review and Resolution Program, “CARRP,” “National Security Concern,” and “NS Concern.” Defendants assert that any relevant documents relating to any CARRP policy, guidance, or training that include the term “Non-National Security” would be uncovered by applying those search terms. Thus, Defendants assert that applying this search term would not be likely to uncover any additional relevant documents. “Non-Known or Suspected Terrorist”: Defendants object to applying this term. Defendants have already searched applying the terms Controlled Application Review and Resolution Program, “CARRP,” “National Security Concern,” and “NS Concern.” Defendants assert that any relevant documents relating to any CARRP policy, guidance, or training that include the term “Non-Known or Suspected Terrorist” would be uncovered by applying those search terms. Thus, Defendants assert that applying this search term would not be likely to uncover any additional relevant documents. Non-KST: Defendants object to applying this term. Defendants have already searched applying the terms Controlled Application Review and Resolution Program, “CARRP,” “National Security Concern,” and “NS Concern.” Defendants assert that any relevant documents relating to any CARRP policy, guidance, or training that include the term “Non-KST” would be uncovered by applying those search terms. Thus, Defendants assert that applying this search term would not be likely to uncover any additional relevant documents. “NS Activities”: Defendants are willing to consider adding this search term to the collection criteria. However, prior to applying these search terms, Defendants shall complete a test to determine whether the term brings back potentially responsive information or if the documents hitting on the terms are bringing back false positives which would disqualify the term. “NS Concern”: Defendants have already searched applying this term. “NS Hit”: Defendants are willing to consider adding this search term to the collection criteria. However, prior to applying these search terms, Defendants shall complete a test to determine whether the term brings back potentially responsive information or if the documents hitting on the terms are bringing back false positives which would disqualify the term. 6 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 30 of 39 Wagafe, et al., v. Trump, et al., No, 2:17-cv-00094-RAJ (W.D. Wash.) “NS Indicator”: Defendants are willing to consider adding this search term to the collection criteria. However, prior to applying these search terms, Defendants shall complete a test to determine whether the term brings back potentially responsive information or if the documents hitting on the terms are bringing back false positives which would disqualify the term. NSAU: Defendants have already searched applying this term. “Routine Adjudication”: Defendants object to applying this term. This term could apply to any application, petition, or request, and, thus, does not apply exclusively to an immigration benefit application that raises a national security concern or that is subjected to the CARRP. Searching this term is likely to produce unresponsive results. Thus, Defendants assert that applying this searching term would likely produce non-relevant documents. “TECS / IB[I]S Check”: Defendants object to applying this term. This term could apply to any immigration benefit application, and, thus, does not apply exclusively to an immigration benefit application that raises a national security concern or that is subjected to the CARRP. Searching this term is likely to produce unresponsive results. Further, Defendants have already searched applying the terms Controlled Application Review and Resolution Program, “CARRP,” “National Security Concern,” and “NS Concern.” Defendants assert that any relevant documents relating to the CARRP policy, guidance, or training that includes reference to “TECS / IB[I]S Check” would be covered by applying those search terms. Thus, Defendants assert that applying this search term would not be likely to uncover any additional relevant documents. “TECS Hit”: Defendants object to applying this term. This term could apply to any immigration benefit application, and, thus, does not apply exclusively to an immigration benefit application that raises a national security concern or that is subjected to the CARRP. Searching this term is likely to produce unresponsive results. Further, Defendants have already searched applying the terms Controlled Application Review and Resolution Program, “CARRP,” “National Security Concern,” and “NS Concern.” Defendants assert that any relevant documents relating to the CARRP policy, guidance, or training that includes reference to “TECS Hit” would be covered by applying those search terms. Thus, Defendants assert that applying this search term would not be likely to uncover any additional relevant documents. “Terrorist Screening Center”: Defendants object to applying this term. Defendants have already searched applying the terms “National Security Concern,” and “NS Concern.” Defendants assert that any relevant documents relating to any CARRP policy, guidance, or training that include the term “Terrorist Screening Center” would be uncovered by applying those search terms. Thus, Defendants assert that applying this search term would not be likely to uncover any additional relevant documents. TSC: Defendants object to applying this term. Defendants have already searched applying the terms Controlled Application Review and Resolution Program, “CARRP,” 7 Case Document 146-1 Filed 04/09/18 Page 31 of 39 Wagqfe. el al.. v. Trump. et al.. No. (W.D. Wash.) "National Security oncem." and Concern.? Defendants assert that any relevant documents relating to any CARRP policy. guidance, or training that include the term TSC would be uncovered by applying those search terms. Further. the acronym TSC is the same that is used for the Texas Service Center, and searching this term would generate non-responsive results for any document mentioning this service center. Thus. Defendants assert that applying this search term would not be likely to uncover any additional relevant documents. Please let me know if you have any questions. Sincerely JQEPHF. .IR. Trial Attorney National Security Affirmative Litigation Unit EDWARD S. WHITE Senior Litigation Counsel National Security Affirmative Litigation Unit AARON R. PETTY Trial Attorney National Security Af?rmative Litigation Unit Case Document 146-1 Filed 04/09/18 Page 32 of 39 B30114 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 33 of 39 U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section ______________________________________________________________________________ Direct Dial: (202) 616-4848 Facsimile: (202) 305-7000 P.O. Box 868 Ben Franklin Station Washington, DC 20044-0868 January 10, 2018 VIA EMAIL Mr. Nicholas P. Gellert (NGellert@perkinscoie.com) Mr. David A. Perez (DPerez@perkinscoie.com) Ms. Laura K. Hennessey (LHennessey@perkinscoie.com) Perkins Coie 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Ms. Jennifer Pasquarella (JPasquarella@aclusocal.org) Mr. Sameer Ahmed (SAhmed@aclusocal.org) ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles, CA 90017 Re: Wagafe, et al., v. Trump, et al., No. 2:17-cv-00094-RAJ (W.D. Wash.) Meet and Confer on December 15, 2017 Dear Counsel: Regarding your requests during our meet and confer, via telephone conference, on December 15, 2017, and your e-mail message of December 18, 2017, I offer, in addition to Defendants’ counsel’s letter of December 19, 2017 and of December 28, 2017, the following response: Regarding the additional search terms proposed by Plaintiffs, Defendants tested the additional search terms designated in Defendants’ counsel letter of December 19, 2017. Defendants will apply the search terms: “Articulable Link,” Deconflict, “Eligibility Assessment,” “External Vetting,” “Internal Vetting,” “Known or Suspected Terrorist,” KST, “Non National Security,” “Non-Known or Suspected Terrorist,” “Non-KST,” and “Terrorist Screening Center” to the named Custodian e-mails. To summarize, Defendants have applied the following 32 search terms to all Custodian emails named in Defendants First Supplement to ESI Disclosures: 1. “Articulable Link” Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 34 of 39 Wagafe, et al., v. Trump, et al., No, 2:17-cv-00094-RAJ (W.D. Wash.) 2. “Background Check Analysis Unit” 3. BCAU 4. CARRP 5. “CARRP Training” 6. “Controlled Application Review and Resolution Program” 7. Deconflict 8. “Eligibility Assessment” 9. “External Vetting” 10. “FDNS National Security Training” 11. FOCUS 12. “Internal Vetting” 13. “Known or Suspected Terrorist” 14. KST 15. “National Security Activities” 16. “National Security Adjudications Unit” 17. “National Security Concern” 18. “National Security Indicator” 19. “National Security Monthly Case Load” 20. “National Security Quarterly Workload” 21. “National Security Record” 22. “National Security Report” 23. “Non National Security” 24. “Non-Known or Suspected Terrorist” 2 Case Document 146-1 Filed 04/09/18 Page 35 of 39 Wagqfe. e1 (11.. v. Trump. et al.. No. (W.D. Wash.) 25. 26. Activities? 27. Concern" 28. Hit" 29. Indicator" 30. Record" 31. NSAU 32. ?Terrorist Screening Center" Please let me know if you have any questions. Sincerely. 7am; SEPH F. CARILLI. JR. rial Attorney National Security Af?rmative Litigation Unit EDWARD S. WHITE Senior Litigation Counsel National Security Af?rmative Litigation Unit AARON R. PETTY Trial Attorney National Security Af?rmative Litigation Unit Case Document 146-1 Filed 04/09/18 Page 36 Of 39 1311115 Case Document 146-1 Filed 04/09/18 Page 37 of 39 U.S. Department of Justice Civil Division Of?ce oflmmigration Litigation District Court Section Direct Dial: (202) 6l6-9l3l Box 868 Facsimile: (202) 305-7000 Ben Franklin Station Washington. DC 20044-0868 February 28. 2018 VIA EMAIL Mr. Nicholas P. Gellert (NGellert@perkinscoie.com) Mr. David A. Perez (DPerez@perkinscoie.com) Ms. Laura K. Hennessey (LHennessey@perkinscoie.com) Perkins Coie 1201 Third Avenue. Suite 4900 Seattle. WA 98101-3099 Ms. Jennifer Pasquarella (J Pasquarella@aclusocal.org) Mr. Sameer Ahmed (SAhmed@aclusocal.org) ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles. CA 90017 Re: Wager/e. et al.. v. Trump. et (11.. No. (W.D. Wash.) Document Production (Production Volume Defendant USC IS 006) Dear Counsel: Please see enclosed document production for Production Volume Defendant USCIS 006. Bates number DEF-00005692 through DEF -00010830. A password will be sent to you via e- mail message. The privilege log associated with this production volume will be sent via separate correspondence. Please let me know if you have any questions. SEPH CARILLI rial Attorney EDWARD S. WHITE Senior Litigation Counsel AARON R. PETTY Trial Attorney National Security Affirmative Litigation Unit Case Document 146-1 Filed 04/09/18 Page 38 Of 39 E11116 Case 2:17-cv-00094-RAJ Document 146-1 Filed 04/09/18 Page 39 of 39 From: To: Cc: Subject: Date: Attachments: Carilli, Joseph F. (CIV) Perez, David A. (Perkins Coie); Sameer Ahmed (SAhmed@ACLUSOCAL.ORG); Hennessey, Laura K. (Perkins Coie); Gellert, Nicholas (Perkins Coie); Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG); Matt Adams (matt@nwirp.org) Petty, Aaron (CIV); White, Edward S. (CIV) Wagafe v. Trump, No. 17-00094 (W.D. Wash.) -- Class List [Identifying Information Withheld] Monday, March 05, 2018 6:24:09 PM Class List (as of Mar. 2, 2018) (redacted) (protected).xlsb Counsel, Good evening. Please see attached. I will send the password via separate e-mail message. Defendants have withheld identifying information pending the resolution of Defendants’ March 1, 2018 motion for protective order. Regards, Joseph Carilli Joseph F. Carilli, Jr. Trial Attorney U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868 Ben Franklin Station Washington, DC 20044 (202) 616-4848 joseph.f.carilli2@usdoj.gov Case 2:17-cv-00094-RAJ Document 146-2 Filed 04/09/18 Page 1 of 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ____________________________________ ) ABDIQAFAR WAGAFE, et al., ) ) Plaintiffs, ) ) v. ) No. 2:17-cv-00094-RAJ ) DONALD TRUMP, President of the United ) States, et al., ) ) Defendants. ) ____________________________________) DECLARATION OF DOUGLAS BLAIR I, DOUGLAS BLAIR, make this declaration in support of Defendants’ Response to Plaintiffs’ Motion for Sanctions. 1. I serve as the Chief of the Sensitive Security Information (SSI) Program of the Transportation Security Administration (TSA), a Department of Homeland Security (DHS) component. The statements made in this declaration are based upon my personal knowledge and information made available to me in the performance of my official duties, my personal review of the records in question, and conclusions reached in accordance therewith. As Chief of the SSI Program, I am responsible for determining whether the disclosure of information would be detrimental to the security of transportation. 2. Pursuant to 49 U.S.C. § 114(r), the Administrator of TSA is vested with the authority to determine what information constitutes SSI and to prohibit its disclosure. 1 That authority is 49 U.S.C. 114(r) refers to TSA’s Administrator as “the Under Secretary of Transportation for Security” because TSA was originally a part of the Department of Transportation. TSA’s functions, as well as the Under Secretary’s, were transferred to DHS pursuant to section 403(2) of the Homeland Security Act of 2002, Pub. L. No. 107-296, 1 1 Case 2:17-cv-00094-RAJ Document 146-2 Filed 04/09/18 Page 2 of 5 delegated from the Administrator to the Chief of the SSI Program pursuant to a Management Directive signed by the Administrator on November 4, 2015. The SSI Program serves as the primary point of contact for other DHS Components, transportation security stakeholders, and TSA as a whole on issues involving SSI in accordance with 49 C.F.R. part 1520. 3. The SSI Program conducts assessments and reviews of TSA and DHS records, and upon request, records of other “covered persons” under 49 C.F.R. § 1520.7, to determine which information contained within those records is SSI. The SSI Program thereafter ensures that the appropriate SSI designations and redactions are made in accordance with 49 C.F.R. part 1520. The prohibition on public release of SSI is not discretionary but is mandatory in accordance with 49 C.F.R. § 1520.15(a). The SSI Program also determines whether specific information should no longer be protected as SSI in accordance with 49 C.F.R. § 1520.5(c) and whether information previously not deemed SSI should be so designated. 4. Pursuant to 49 U.S.C. § 114(r) and implementing regulations at 49 C.F.R. part 1520 (“TSA’s implementing regulations”), information designated as SSI is exempt from disclosure notwithstanding any other laws if TSA determines disclosure would “(A) be an unwarranted invasion of personal privacy; (B) reveal a trade secret or privileged or confidential commercial or financial information; or (C) be detrimental to the security of transportation.” 49 U.S.C. § 114(r)(1). TSA’s determinations as to what constitutes SSI are exclusively reviewable by the United States Courts of Appeals. 49 U.S.C. § 46110. 116 Stat. 2135 (codified at 6 U.S.C. 203(2)). The Under Secretary is now known as the Administrator of TSA. See 49 C.F.R 1500.3. 2 Case 2:17-cv-00094-RAJ Document 146-2 Filed 04/09/18 Page 3 of 5 5. I understand that Plaintiffs are seeking production of Named Plaintiffs’ Alien Files (A-Files) in unredacted form. I also understand that A-Files may contain TECS records and records pertaining to targeting and operations. TECS is the principal law enforcement database for U.S. Customs and Border Protection (CBP). CBP uses TECS when inspecting individuals at U.S. ports of entry and preclearance locations in foreign countries. 6. It is also my understanding that U.S. Citizenship and Immigration Services (USCIS) reviewed the documents at issue, identified documents that it believed may implicate SSI and submitted them to TSA for review. I have personally reviewed the documents submitted to TSA by USCIS and determined that they contain SSI to the extent that Named Plaintiffs’ A-Files contain TECS records and records pertaining to targeting and operations. Such information constitutes SSI because their public release would be detrimental to the security of transportation. 2 To the extent that any other documents at issue contain this type of information, they also contain SSI. 7. 49 C.F.R. § 1520.5(b)(9)(i) specifically prohibits the disclosure of “[a]ny procedures, including selection criteria and any comments, instructions, and implementing guidance pertaining thereto, for screening of persons, accessible property, checked baggage . . . that is conducted by the Federal government or any other authorized person.” Records pertaining to targeting and operations may include information pertaining to screening procedures, to include selection criteria, as well as comments, instructions, and guidance. This type of information cannot be publicly disclosed because the release of such information would provide terrorists and I have been informed that Plaintiff’s discovery request was not brought to TSA’s attention until April 5, 2018. Therefore, TSA did not have a previous opportunity to review the information implicated by the request and to assert any applicable privileges to protect this information. 2 3 Case 2:17-cv-00094-RAJ Document 146-2 Filed 04/09/18 Page 4 of 5 terrorist organizations valuable knowledge about how screening takes place, how individuals are selected for different types of screening (including expedited screening, standard screening and enhanced screening), and which individuals are selected for different types of screening. Such information would provide terrorists and terrorist organizations a roadmap to circumvent those procedures and would enable them to select operatives based on which type of screening they are likely to receive. This type of information in the hands of resourceful, committed terrorists would be harmful to the security of transportation, and therefore such information cannot be disclosed publicly. 8. Similarly, 49 C.F.R. § 1520.5(b)(9)(ii) expressly prohibits the disclosure of “[i]nformation and sources of information used by a passenger or property screening program or system, including an automated screening system.” TECS records may include a passenger’s status on Federal government watch lists, including the No Fly and Selectee lists. TSA uses No Fly and Selectee list status when vetting passengers attempting to board commercial aircrafts. The No Fly and Selectee lists remain effective tools in the government’s efforts to secure transportation because, among other reasons, their contents are not disclosed. If the Government formally revealed the status of individuals as being either on or off the No Fly and Selectee lists, terrorists and terrorist organizations would be able to circumvent the purpose of those screening systems. Such circumvention of security screening systems would be detrimental to the security of transportation. Furthermore, disclosure of status on the No Fly or Selectee lists could harm the government’s ability to use the watch lists as a means of gathering information about individuals suspected of being connected to terrorism. 3 In certain limited circumstances, the government may inform U.S. Citizens and Lawful Permanent Residents of their status on the No Fly List. Those circumstances are not presented here. 3 4 Case 2:17-cv-00094-RAJ Document 146-2 Filed 04/09/18 Page 5 of 5 I declare under the penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed on April 9, 2018 __________________________________________ DOUGLAS BLAIR Chief, Sensitive Security Information Program Office of Law Enforcement/Federal Air Marshal Service Transportation Security Administration Department of Homeland Security 5 IQ Case Document 146-3 Filed 04/09/18 Page 1 of 12 The Honorable Richard A. Jones UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ABDIQAFAR WAGAFE, ?2101., No. DECLARATION OF MATTHEW D. v. EMRICH IN SUPPORT OF OPPOSITION TO UNITED STATES CITIZENSHIP AND MOTION FOR SANCTIONS IMMIGRATION SERVICES, 9! 01., Defendants. I. Matthew D. Emrich, do hereby declare and say: 1. I am the Associate Director of the Fraud Detection and National Security Directorate, US Citizenship and Immigration Services US. Department of Homeland Security I have held this position since November 15, 2015. 2. As Associate Director of FDNS, I report directly to the Director of USCIS and Deputy Director of USCIS. L. Francis Cissna, Director has delegated to me the authority to assert the law enforcement and deliberative process privilege on his behalf regarding the documents at issue in this litigation. 3. I understand that there are lived named plaintiffs in this litigation and that Plaintiffs have requested that USCIS produce unredacted Alien Files (?A-Files?) for each named plaintiff. MA I). EMRICII - (2: I IQ OKDOONGUI-ILDJ I) Case Document 146-3 Filed 04/09/18 Page 2 of 12 4. I submit this declaration in order to: I) provide an overview of what generally is contained in A-Files. including the type of information that may be privileged; and 2) to explain how the disclosure of privileged information contained within the A-l?ilcs of the named plaintiffs in this case would harm interest in protecting privileged information. including information protected by the law enforcement and deliberative process privileges. 5. The matters contained in this declaration are based upon my review ofdocuments that have been withheld in the case of l?i?agctfe. (3101.. v. Trump. of. Case No. 2:17-cv-00094 in the United States District Court for the Western District of Washington. my personal knowledge. my knowledge ofthe documents kept by USC IS in the course of ordinary business. and on information provided to me by other USCIS employees in the course of my official duties as Associate Director of FDNS. Overview of A-Files 6. An A-File serves as the official record ofan individual's immigration history. 82 Fed. Reg. 43556. 43557 (Sept. 18. 2017). Although is the custodian of the A-File. A- Files contain documents derived from the three immigration components of DI IS: USCIS. U.S. immigration and Customs Enforcement and U.S. Customs and Border Patrol Id. 7. A-Files also contain information that originates outside of is. For instance. A- Files may contain. but are not limited to. information provided by the individual to DI iS or Department of State publically available information: information shared by other agencies. including federal. state. and local governments. various courts and regulatory agencies. foreign government agencies. and international organizations. through information sharing agreements. reports ofinvestigations. and written referrals from other entities. Id. at 43557. ION Ill] Vi I). Mklt'll - 2 (2: IxCase Document 146-3 Filed 04/09/18 Page 3 of 12 8. The purpose of the A-Fiie is to document and maintain the oflicial record of an individual's immigration applications. petitions. and requests. as well as enforcement actions as he or she passes through the U.S. immigration process. Id. at 43559. employees are the primary users ofthe A-Files. and A-Files are used for immigration processing and adjudication. protection ofnational security. administering and enforcing immigration and nationality laws. detecting violations of immigration and nationality law. supporting the referral of such violations for prosecution or other appropriate enforcement action. supporting law enforcement efforts and inspection processes at the U.S. borders. and carrying out DIIS enforcement. immigration. intelligence. or other homeland security functions. Id. 9. In the instant litigation. the A-Files ofthe live named plaintiffs affect the equities of several agencies other than USC IS. including ICE. BP. Transportation and Security Administration DOS. and Federal Bureau of Investigation 10. These agencies own. control. or have equities in particular documents or certain information within the A-Files of some or all of the named plaintiffs. In addition to the three DI IS immigration components (USCIS. BP and ICE). additional non-party agencies with equities in certain information in the A-Files are providing declarations to assert privilege over their information. 1 I . A-Files generally contain information that is subject to the law enforcement and deliberative process privileges for reasons completely unrelated to the ARRP policy. For instance. all individuals applying for adjustment of status or naturalization must undergo a suite of background checks. the results of which are often law enforcement privileged. A-Files may also include discussions. communications. and deliberations regarding the plaintiffs' immigrant benefit applications that are not related to the CA RRP policy. Accordingly. the named plaintiffs? I). LMRICII - 3 (2: 7-H. Altitl?I-i-RAJI Case Document 146-3 Filed 04/09/18 Page 4 of 12 A-Files in this case contain such law enforcement and deliberative process privileged information. which affect USCIS and third party agency equities. 12. In prior declarations to the Court. SC [8 has explained that it considers infonnation regarding whether any particular individual has been subject to the CARRP policy as law enforcement privileged. Dkt. Nos. 94-5: 1 l9-2. 126-]. However. I understand that the Court found that. in this case. Plaintiffs? need to know ?who is subject to outweighed the government's need to withhold that information. Dkt. 98 at 3. 13. If any ofthe named plaintiffs were subject to the CARRP policy at any point in their immigration history. the A-File would contain documents relating to whether and why that individual was subject to the CARRP policy.l 14. The privilege log that USCIS provided to Plaintiffs on March I6. 2018. would have. as appropriate. included subject descriptions to indicate ifa particular document relates to the CARRP policy. 15. Just as documents in an A-File often impact the equities and privileges of third-party agencies, documents in an A-File that relate to the CARRP policy may impact the equities and privileges ofthird-party agencies. in addition to those of USCIS. 16. Documents relating any individual to the CARRP policy may be contained within the A-Files or stored in other locations. If any ofthe named plaintiffs were subject to the CARRP policy. documents that relate to why that individual was subject to the CARRP policy may also be stored in locations other than their A-Files. lfthose documents exist here. they will In order to file this declaration on the public docket. USCIS cannot confirm or deny whether any particular A-File contains information that relates to the CARRP policy. USCIS has. however. included on a March l6. 2018 privilege log. provided to Plaintiffs? counsel pursuant to the Slipulated Protective Order in this case. information sufficient to determine ifthe subject ofthat document relates to the CARRP policy. Di Ll ARAIION Ill Vt I). I 7-13 IQ 9.) is) 13 Case Document 146-3 Filed 04/09/18 Page 5 of 12 be reviewed for privilege. and the non-privileged portions will be produced once review is complete. Assertion of Law Enforcement and Deliberative Process Privilege 17. I submit this declaration as the formal assertion invoking the law enforcement privilege and deliberative process privilege for certain documents in the relevant A-Files. 18. have recently reviewed the A-Files of the named plaintiffs in this litigation. including the information that was withheld as privileged. 19. Each ofthe live A-Files contains law enforcement and deliberative process privileged information that does not relate to the CARRP policy. if any of the plaintiffs were subject to the CARRP policy. there would be documents in the A-Files that relate to the CARRP policy. 20. Below is an explanation of the types ofdocuments over which USCIS has asserted privilege in the A-Files. and the reasons why that information is privileged. The majority of withheld documents in the named plaintiffs A-Files originated with lfdiselosed. the withheld information would identify USCIS internal case handling procedures for the adjudication ofan immigration benefit application. to include methods used to evaluate an applicant?s eligibility for the immigration benefit. which might reveal the methods and techniques used to uncover or elicit inlormation that relates to eligibility for an immigration benefit. 22. The withheld documents also identify sensitive information about the results of law enforcement checks perfonned on applicants for immigration benefits that would inform an individual of specific law enforcement entities that did or did not have investigative infomiation regarding that individual. In addition. these documents may contain record identification ION - 5 I 7-D Ix.) 42-h) Case Document 146-3 Filed 04/09/18 Page 6 of 12 numbers and similar codes. information identifying law enforcement agencies. and narrative text. the disclosure of which might reveal sensitive law enforcement investigative information. techniques. and procedures. 23. The withheld documents also contain compilations or descriptions of the results of background checks performed by SC IS or obtained from other agencies. While these pages may affect the privileges of other agencies. USCIS also considers them law enforcement privileged. Disclosure of such would reveal the type of information that USC IS gathers from its partners. which would inform individuals of sensitive investigative methods by which USCIS adjudicates cases. and which. ifdisclosed. would impair its ability to properly vet individuals. 24. The withheld documents may also contain deliberative. pre-decisional considerations or discussions about the adjudication of an applicant?s immigration benefit application. Disclosure ofinternal USCIS deliberative process documents. including draft policy documents. would harm ability to confer openly before making important decisions. Disclosure ofdeliberative process documents between USCIS and third party agencies would have a chilling effect on ability to discuss information with partners from which it obtains information. This could impact ability to collect critical information in the future. 25. The following types ofdocuments were created by or originated with UCSIS. and implicate the law enforcement information described in paragraphs [21-24]: N-400 Processing Worksheets: FOUO Coversheets: Requests for Assistance for Vetting Immigration Benefit Application: TECSIIBIS Results-"Resolution Memos: Records Queries: VT worksheets/printouts: Memorandafcommunications/ inquiries about the CI ARAIIUN MAI I'lli Vt- - 6 (2: 7-0 Ix.) Lb.) U1 6 Is) ls.) Is.) 00 \l UI Case Document 146-3 Filed 04/09/18 Page 7 of 12 adjudication/status of an immigrant bene?t application: various coversheets/worksheets/routing sheets/case transfers/records/liles: various statement of ?ndings: Case FDNS-DS printouts; CLAIMS Mainframe pages; various Form l-485 processing sheets/screen print reports/adjudication processing worksheets: NBC [-485 ready criteria pages; Resolution Memoranda: adjustment ofstatus case relocation memoranda: various interoflice memoranda: printouts; Case Status Printout: draft policies: memoranda of interviews: various emails: notes from A ?le reviews; resolution pages: memoranda to file: NBC requests for assistance; Central Index System printouts: general inquiries: contact information: spreadsheet assessing eligibility for immigration benefit: interview of appliant pages: Intake and closure checklists; as well as additional USClS-created documents. 26. The A-Files also contain documents that do not originate with USCIS or contain information that was primarily collected from third-party sources. 27. Some of these documents contain the names of officers who performed those background checks and are charged with investigating individuals? eligibility for immigration benefits. Disclosure ofthe identity of such of?cers might reveal sensitive law enforcement investigative information. techniques. and procedures. 28. Further. although the infomiation in these documents may not originate with disclosure would reveal the type of materials that gathers from its partners. and which. ifdisclosed. would impair its ability to properly investigate individuals. 29. The following types ofdocuments do not originate with or contain information that was primarily collected from third-party sources. and implicate the law enforcement information described in paragraphs [26-29]: printouts: F0258 Tracking System printouts: FBI responses: ENFORCE printouts: 1095 Inspection ARAIIUN MAI D. - 7 (21] 'i-ct-JiiliW-l-kalj Ix.) l?I I?Ix42?- b) Is.) 00 Case Document 146-3 Filed 04/09/18 Page 8 of 12 Results printouts. US-VISIT Secondary Processing printouts: Netieads-Avalanche printouts: IV requests for immigrant numbers: Alien check numbers: PQII data pages: Nonimmigrant visa (CCD Printouts): NIV applicant detail printouts: SEVIS printouts: EARM printouts; US-VISIT ADIS printouts; WRAPS printouts: ATS printouts: NNSV Query Results: CSIS Inspection Records; Vehicle Search Results: refugee application assessments: and BBSS printouts. Impact if Privileged Information were Disclosed 30. In my February 20. 2018 declaration. Dkt. 126-]. I explained how disclosure of the law enforcement documents that were at issue in that motion would cause a risk to law enforcement efforts. Similar issues arise within the documents contained within the A-Files at issue here. There are also unique issues particular to the information contained within these A- Files. 3 l. The A-Files contain information that reveals the procedures used by USCIS to investigate and to adjudicate immigration benefit applications. and disclosure ofthis infonnation would impair the effectiveness of processes and procedures to determine an applicant's eligibility for the immigration benefit sought. With regards to particular A-Files. individuals would gain insight into the particular procedures that USCIS employs to investigate a particular individual's eligibility for an immigration bene?t. Disclosure of this information would provide an applicant for an immigration bene?t a roadmap to evade such processes and procedures and conceal information that would otherwise make the applicant ineligible for the immigration bene?tsoughL 32. The A-Files also contain records ofsensitive data systems of law enforcement partners that USC IS does not own. Disclosure ofthe results of background checks that USCIS Cl ARA I ION 0! [Ill I). MRICII - 8 (2: I 7-0. CD \0 00 ON U1 IxIx) Ix.) IV.) Ix.) Ix.) Ix.) Ix) 00 ON U1 14) Ix.) Case Document 146-3 Filed 04/09/18 Page 9 of 12 conducts would provide insight into how identi?es. investigates. and combats security threats. This could create programmatic vulnerabilities and allow potential threats to adjust. adapt and better avoid detection. 33. Relatedly. disclosure ofdocuments that USC IS does not own. which originate with other law or intelligence agencies. could impair ability to share and collect necessary information to determine if an individual is eligible for an immigration bene?t. and could impact other law enforcement or intelligence agencies? missions or operations. USCIS is obligated to protect information that it obtains from third-party agencies. Disclosure could harm the collaborative relationship between USCIS and the law enforcement partners. which could degrade ability to collect information it needs to prevent potential bad actors from in?ltrating the immigration system. despite not being eligible for an immigration bene?t. 34. Next. some of the individuals whose A-Files are at issue in this case may apply for immigrant bene?ts from USCIS in the future. If they have insight into the sensitive law enforcement procedures utilized in prior immigration bene?ts. they may have the necessary information to conceal critical information that would be relevant in determining if they are eligible for an immigration bene?t that they seek in the future. 35. Even plainti?s who are now US. citizens may petition for relatives or other individuals to obtain immigration bene?ts in the future. or otherwise be involved in the immigration process. If such individuals have insight into the particular sensitive law enforcement procedures USC IS utilizes to determine if an individual is eligible for an immigration bene?t. they could provide that information to individuals for whom they petition or with whom they are otherwise involved in the immigration process. ARAIION MAI o. -9 (321743 In.) JE-UJ CD \0 00 U- Case Document 146-3 Filed 04/09/18 Page 10 of 12 36. Therefore. public disclosure of the withheld portions ofthesc documents could provide individuals with a roadmap into the speci?c procedures and techniques uses to uncover information that an individual may wish to hide and the techniques uses to elicit information. Individuals who are aware ol'the techniques that USCIS uses to collect. record. and elicit information related to eligibility for an immigration bene?t may more successfully employ evasion tactics to make it more difficult for to discover infomtation needed to adjudicate future immigration benefit applications. Individuals could also share these techniques with criminals. individuals engaged in fraud. terrorist organizations. or other bad actors so that individuals engaged in bad acts could seek to improperly obtain immigration bene?ts. 37. Public disclosure of the withheld information in these A-Files that relates to coordination and interaction with third-party law enforcement or intelligence agencies could provide applicants with information to discover whether that individual is the subject ofan investigation by a third-party law enforcement or intelligence agency. In addition, the privileged documents could provide individuals with information that could allow them to determine ifthey are or were likely under investigation by another law enforcement or intelligence agency. individuals who become aware of such information could gain insight that would allow them to disrupt or circumvent a third-party immigration. criminal. or national security investigation. USCIS would be damaged by the disclosure of such infonnation because it would jeopardize its relationships with third-party agencies and undermine its ability to collect relevant information related to eligibility for immigration benefits. Without access to relevant information. USCIS could grant bene?ts to individuals who are not only ineligible for the bene?t but who may seek to use the bene?ts of US. citizenship or permanent residence to harm the United States. which may pose a risk to national security and public safety Jib.) U1 OCOOKICH Case Document 146-3 Filed 04/09/18 Page 11 of 12 38. If individuals with nefarious intent were to obtain access to privileged information in A-Files. they would have far greater tools at their disposal to avoid detection and perpetrate fraud or deception. In particular. the individuals may become aware ofthe methods that IS uses to obtain information that an individual seeks to conceal. and techniques USCIS uses to collect inlonnation needed to uncover attempts to misrepresent information or withhold it. This could cripple ability to properly investigate individuals to determine their eligibility for immigration benefits. undermine the integrity ofthe immigration system. and. if individuals who wish to harm the United States obtain greater rights and abilities through their immigration status. threaten the national security ofthe United States. 39. Finally. disclosure ofdeliberative process documents that reveal con lidential communications within USCIS would undermine ability to discuss sensitive matters freely. Disclosure of deliberative draft policy documents that were not ?nalized would further undermine ability to consider various policy options in a confidential manner. 40. Disclosure ofdocuments that reveal confidential communications between USCIS and third-party agencies could chill information-sharing and potentially limit USCIS from obtaining key infon'nation needed to determine ifa particular individual is eligible for an immigration benefit. Based upon my professional experience. I have concluded that any disclosure of the information withheld from these documents. which has been appropriately withheld pursuant to the law enforcement and deliberative process privilege. would undermine the integrity ofthe US. immigration system. facilitate fraud. and pose significant potential to harm national security and public safety. Public disclosure of the withheld information could result in more fraudulent applications for immigration benefits by individuals who seek immigration benefits for which ARAIIUN MAI I). I MRICH - [2 00 NJ 0 DJ ls.) DJ .- la Case Document 146-3 Filed 04/09/18 Page 12 of 12 they are not eligible or who pose national security risks to the United States and more sophisticated and targeted fraud schemes in such applications. Larger numbers of fraudulent applications and increasingly sophisticated schemes will impair the ability of USC officers to identify and address immigration fraud and national security risks. 42. Based on the reasons set forth above. I assert the law enforcement and deliberative process privileges with respect to the withheld and redacted infomiation. I declare under penalty of perjury that the foregoing is true and correct to the best of my information. knowledge and belief. Executed this Ff: day of April, 2018 at Washington. DC. Matthew D. limrich Associate Director. FDNS US. Citizenship and Immigration Services Washington. D.C. ION 01 MAI l l.W I MRICII - 12 (2: I i Case Document 1?46-4 Filed 04/09/18 Page 1 of 2 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON ABDIQAFAR WAGAFE, et. al., Plaintiffs, Case No. 17-CV-0094-RAJ . TRUMP, et al., Defendants. DECLARATION OF CARL GHATTAS 1, Carl Ghattas, hereby state and declare as follows, pursuant to 28 U.S.C. 1746: l. I am the Executive Assistant Director of the National Security Branch of the Federal Bureau of Investigation United States Department of Justice 2. The matters stated herein are based on my personal knowledge, my background, training and experience related to national security matters, my review and consideration of documents and information available to me in my of?cial capacity, and information furnished to me by Special Agents and other employees of the FBI and DOJ. It is also based on information ?rmished by U.S. Citizenship and Immigration Services and its employees regarding Controlled Application Review and Resolution Program 3. I have been informed that CARRP is an USCIS agency-wide approach for identifying, processing and adjudicating applications and petitions for immigration bene?ts that involve national security concerns. The FBI, however, does not administer CARRP, which is solely a USCIS program. Case Document 146-4 Filed 04/09/18 Page 2 of 2 4. Through the exercise of my of?cial duties, I also have been briefed on the above- captioned lawsuit in which the Court has certi?ed two classes of individuals seeking legal permanent resident status or naturalization. I understand that this matter is proceeding in discovery and that Plaintiffs have served document requests on the Defendants. I have been advised the Defendants have responded to the document requests and asserted objections over privileged information and documents. I also understand that a motion for sanctions has been ?led against Defendants based upon decision to withhold information from the USCIS A-?les pertaining to the named Plaintiffs. 5. As explained in more detail in my declaration submitted ex parte, in camera, the FBI asserts the law enforcement and deliberative process privileges over information contained in the A-?les and any other USCIS records pertaining to the ?ve named Plaintiffs in this civil action. I declare under penalty of perjury that the foregoing is true and correct. 514/;ng Carl Ghattas Executive Assistant Director National Security Branch Federal Bureau of Investigation Washington. DC. Executed this 9th day of April, 2018. Case Document 146-5 Filed 04/09/18 Pagelof7 . UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ABDIQAF AR WAGAFE, et al. Plaintiffs, v. No. 2: DONALD TRUMP, President of the United States, et al., Defendants. 1. DECLARATION OF TATUM KING I, Tatum King, hereby state as follows: I am the Assistant Director, Domestic Operations, Homeland Security Investigations (HSI), US. Immigration and Customs Enforcement (ICE), an agency in the Department of Homeland Security (DHS). Following the enactment of the Homeland Security Act of 2002, ICE was created from elements of several legacy agencies, including the criminal investigations staffs of the former US. Customs Service (USCS) and the former Immigration and Naturalization Service (INS). As a result, all Special Agents who formerly worked for the USCS and the INS - became a part of ICE. ICE is the second largest investigative agency in the Federal Government. Within ICE, HSI has approximately 8,260 employees, including over 6,100 Special Agents assigned to twenty-six (26) Special Agent-in-Charge (SAC) of?ces in cities throughout the United States and in countries around the world. Special Agents have a wide array of responsibilities relating to the investigation of criminal activity relating to illicit trade, travel, and ?nance, which in addition to investigating violations of the country?s immigration Case Document 146-5 Filed 04/09/18 Page 2 of 7 laws, includes the investigation of contraband and merchandise smuggling, money laundering, fraud in both import and export transactions, and other criminal activity. . As the Assistant Director of Domestic Operations, I provide oversight and support to all HSI domestic ?eld personnel, including 26 SACs with responsibility for more than 200 of?ces. In this capacity, I am responsible for strategic planning, national policy implementation and the development and execution of operational initiatives. The of?ces under my direction are responsible for leading effort to identify, disrupt, and dismantle terrorist and other transnational criminal organizations that threaten the security of the United States. . As ICE is the largest investigative arm of DHS, HSI may share sensitive law enforcement information with other agencies in ?irtherance of homeland security. The information can include investigations into active criminal enterprises and national security threats, including counterterrorism, counter-proliferation, and visa violations with national security or public safety concerns. mission strongly depends on the use of sensitive law enforcement and investigative techniques and methods which are not widely known to the public. The disclosure of these techniques and methods would seriously compromise ability to perform its mission to enforce the law. . This declaration is based on my personal knowledge, my personal review and appraisal of the claims of law enforcement privilege hereby asserted and the factual background of the case, as well as information conveyed to me by my staff and other knowledgeable ICE personnel in the course of my of?cial duties and responsibilities. . I have personally reviewed the ICE records and information that were? included in the A-?les produced in this case. I am making this Declaration for the purpose of asserting the law enforcement privilege with respect to that information. For the reasons set forth below, I Case Document 146-5 Filed 04/09/18 Page 3 of 7 have determined that the disclosure of this information would be contrary to the public interest, because it would reveal con?dential law enforcement techniques, methods and procedures, as further discussed below. The documents at issue fall into the following categories: a. Database printouts including printouts from the Treasury Enforcement Communications Systems (TECS), the Advance Visual Abstracted Links and Name Collection Handler Engine (AVALANCHE), and the Student and Exchange Visitor Information System (SEVIS) databases; and b. Emails between USCIS employees and HSI agents. . Based upon my personal review of the documents described above, I am formally asserting the law enforcement and deliberative process privileges over the above?referenced information. In support of this assertion I make the following statements. . The release of these unredacted and withheld documents described above would effectively reveal sensitive and privileged law enforcement information, in addition to revealing the . general nature of ICE law enforcement techniques, procedures, and guidelines. Revealing such sensitive and privileged information could undermine the efforts of ICE to carry out its mission of identifying criminal activities and eliminating vulnerabilities that pose a threat to our nation?s borders, as well as ensuring economic, transportation and infrastructure security. The release of this information could also reveal the pre-decisional decision-making process potentially resulting in a hinderance of candid discussions between federal agencies. Database Printouts . Disclosure of the details in ICE databases could further enable any Subject of investigation to evade investigations by disclosing the types of information ICE is interested in when the agency undertakes specific types of investigations. Disclosure. of such information increases the likelihood that subjects and potential subjects of such investigations will develop methods 3 10. Case Document 146-5 Filed 04/09/18 Page 4 of 7 to obscure or alter such information and thereby circumvent the agency?s efforts to collect information and evidence to thwart serious violations that may affect the national security. The documents at issue are from the following databases: TECS, AVALANCHE, and SEVIS. TECS is an inter-agency database that ICE used in the course of conducting its investigations. The capabilities and functions of TECS among law enforcement of?cials are not generally known to members of the public. They are routinely withheld from public disclosure to protect the integrity of the data and the privileged law enforcement information that TECS contain. In addition to ICE, TECS is used by more than 40 federal law enforcement agencies, including the FBI and the Secret Service. In turn, TECS interfaces with many of the databases belonging to these federal law enforcement agencies. Information from other federal law enforcement databases were communicated to ICE law enforcement of?cials through TECS. AVALANCHE, an ICE system no longer in operation, provided users the capability to rapidly search across multiple databases. AVALANCHE previously searched 15 databases consisting of approximately 50 million indexed names, vehicles and addresses. AVALANCHE allowed searching by multiple ?elds including name, social security number, Fingerprint Identi?cation Numbering System (F IN S), Alien File Number, and date of birth. SEVIS is a critical tool in the Student and Exchange Visitor Program?s mission to protect national security while supporting the legal entry of more than one million international students (F and visa holders) and exchange visitors (J visa holders) into the United States. The following types of codes appear in TECS, AVALANCHE, and SEVIS records: case/?le numbers, report numbers, class numbers, source symbol numbers, case program codes, access codes, classi?cation codes, identi?cation numbers, investigative distribution codes, 4 11. 12. Case Document 146-5 Filed 04/09/18 Page 5 of 7 computer function commands and other administrative codes. Some of the codes serve a dual purpose. Aside from the purposes of indexing, storing, locating, retrieving and distributing information, these codes also indicate various aspects of the investigative case, such as: the type and location of the case; whether or not the subject should undergo close inspection; and the distributionof information relating to the case, which would indicate the scope and relative size of the investigation in terms of agency resources, types of activity being investigated and location of investigative efforts. Release of these codes, along with computer ?mction commands, could assist third parties in deciphering the meanings of the codes, which could potentially impede ongoing investigations as well as pose a danger to ICE personnel. This information was also redacted to reduce the possibility that someone would improperly gain access to any of these databases a ?hacker?) and would be able to navigate the systems that housed ICE investigative records. These records also contain remarks and information which would reveal law enforcement strategies and investigation techniques. As noted above, release of this information increases the likelihood that subjects and potential subjects of such investigations will develop methods to obscure or alter such information and thereby circumvent the agency?s efforts to collect information and evidence to thwart serious violations that may affect the national security. E-Mails E-mail communications by and between USCIS employees and ICE agents include details of the agents? investigative efforts. Disclosure of this information could reveal investigative techniques and procedures, as well as reveal names of individuals who were, and possibly still are, subjects of investigations. Furthermore, disclosure may inhibit the candid discussion of pre-decisional matters between agencies and/or components. Protections over 13. 14. Case Document 146-5 Filed 04/09/18 Page 6 of 7 these communications is needed to promote the free ?ow of information, needed to make well-informed determinations. Special Agents handle a myriad of tasks relating to of?cial investigations into the criminal activities of third-parties. The agents were, and are, in positions of access to information regarding of?cial law enforcement investigations and immigration proceedings. If their identities are released, including individual telephone numbers and addresses, they could become targets of harassing or coercive inquiries for unauthorized access to information pertaining to ongoing and closed investigations, thereby compromising law enforcement operations. Additionally, such disclosure could compromise the safety of these of?cials. [Luffkiencv of a protective order A protective order allowing ICE to reveal this information in this litigation is not acceptable. The safety of ICE agents involved in investigations and the national security could be placed in jeopardy as a result of disruptions to the agency?s law enforcement efforts. Moreover, even the inadvertent disclosure of information by the plaintiff creates the risk of compromising investigative techniques, methods, and thus investigations. The plaintiff and his attorneys may not have the knowledge of law enforcement and investigative processes, techniques, and methods, to enable them to understand and identify the sensitive nature of the information claimed herein as protected by the law enforcement privilege. Without directing any aspersions toward the integrity of plaintiffs? attorneys, this agency simply cannot afford even a slight risk that the attorneys most closely involved with this case could lose possession or control of the documents or otherwise compromise their security, leading to improper and unauthorized use of the information. This risk of disruption and serious injury I 6 Case Document 146-5 Filed 04/09/18 Page 7 of 7 to ongoing and future investigations and serious injury to the results of prior investigations that would be caused by even inadvertent release of use of these investigative techniques and methods is unacceptable to ICE for the reasons stated above. Conclusion 15. The disclosure of the information discussed herein would allow potential violators to discover or circumvent ICE investigative techniques, and endanger HSI operations and employees. Speci?cally, the disclosure of these techniques would enable potential violators to evade HSI investigations and law enforcement activities, thus compromising the safety of H81 agents and the public. The disclosure of this information would also jeopardize the overall effectiveness of ICE and third-party investigations. 16. Therefore, I respectfully assert the law enforcement privilege with respect to this information, for the reasons set forth above. Pursuant to 28 U.S.C. ?1746, I declare under penalty of perjury that the foregoing is true and correct. Executed in Washington, DC. this 9th day of April, 2018. at Tatum King Assistant Director, Domestic Operations Of?ce of Homeland Security Investigations US. Immigration and Customs Enforcement Case Document 146-6 Filed 04/09/18 Page 1 of 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ABDIQAFAR WAGAF E, et al., Plaintiffs, v. No. 2: DONALD TRUMP, President of the United States, et Defendants. DECLARATION OF COREY A. PRICE I, Corey A. Price, hereby state and declare that the following statements are true and correct to the best of my knowledge, information and belief: I. I am the Assistant Director for Enforcement, with the Office of Enforcement and Removal Operations (ERO), US. Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS), in Washington, DC. My current responsibilities include management of the national programs of the Criminal Alien Division, the Fugitive Operations and Training Division, and the Targeting Operations Division. I have worked for the former Immigration and Naturalization Service, and then ICE, since June 1998. 2. primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration. A critical ICE mandate is the enhancement of public safety and the security of the American public through the enforcement of our immigration laws. ICE is authorized to identify and remove aliens who have been convicted of crimes such as murder, predatory sexual offenses, Case Document 146-6 Filed 04/09/18 Page 2 of 5 narcotics traf?cking, and alien smuggling, and a host of other offenses that harm persons in the United States and have extraordinary public safety consequences. Such aliens can be dangerous and recidivist. . BRO and Homeland Security Investigations are the two principal operational components within ICE. BRO oversees programs and conducts operations to identify and apprehend removable aliens, to detain these individuals when necessary, and to remove illegal and removable aliens from the United States. BRO prioritizes the apprehension, arrest, and removal of convicted criminal aliens, those who pose a threat to national security, fugitives, recent border entrants, and aliens who thwart immigration controls. BRO manages all logistical aspects of the removal process, including domestic transportation, detention, alternatives to detention programs, bond management, and supervised release. In addition, BRO repatriates aliens ordered removed from the United States to more than 170 countries around the world. BRO consists of more than 7,500 employees located at ICB headquarters, 24 ?eld of?ces in the US. and overseas. . This declaration is based on my personal knowledge, my personal review and appraisal of the claims of law enforcement privilege hereby asserted and the factual background of the case, as well as information conveyed to me by my staff and other knowledgeable ICB personnel in the course of my of?cial duties and responsibilities. . Speci?cally, the privileged documents include database printouts, subject queries results, investigative notes, and encounter summaries. Based upon my personal review of the ICE records and information that were included in the A-?les produced in this case, I am formally asserting the law enforcement privilege over the withheld and redacted information. In support of this assertion I make the following statements. Case Document 146-6 Filed 04/09/18 Page 3 of 5 Database Printouts 7. The A-?les contain information from ENFORCE and EARM (ENFORCE Alien Removal Module) computer applications. These applications contain information related to the investigation, arrest, booking, detention and removal of persons encountered during immigration law enforcement investigations conducted by ICE and other DHS components. The information provides a comprehensive view of an alien?s detention and removal status, including information about immigration history and criminal history. It also includes biographical, descriptive, biometric and encounter-based data about subjects. 8. The release of information ?'om these applications could effectively reveal sensitive and privileged law enforcement information, in addition to revealing the general nature of ICE law enforcement techniques, procedures, and guidelines. This includes information indicating whether or not a subject is of interest to one or more law enforcement agencies; and if s/he were of interest, the reason. The. information also includes alphabetic, numeric and alphanumeric codes that should not be revealed. Release of these codes could assist third parties in deciphering the meanings of the codes, which could potentially impede ongoing investigations as well as pose a danger to ICE personnel. Release of such information increases the possibility that someone who improperly gains access to these applications a ?hacker?) and would be able to navigate these applications and manipulate the data. 9. Disclosure of the information in these applications could further enable any subject of investigation to evade investigations by disclosing the types of information ICE is interested in when the agency undertakes speci?c types of investigations. Disclosure of such information also increases the likelihood that subjects and potential subjects of such investigations, and their associates, will develop methods to obscure or alter such their practices and behavior, and Case Document 146-6 Filed 04/09/18 Page 4 of 5 thereby circumvent efforts to collect information and evidence to thwart serious violations that may affect enforcement operations. Insuf?ciency of a grotective order 10. A protective order allowing ICE to reveal this information in this litigation is not acceptable. - The safety of ICE of?cers involved in investigations and the national security could be placed. in jeopardy as a result of disruptions to the agency?s law enforcement efforts. Moreover, even the inadvertent disclosure of information by the plaintiff creates the risk of compromising investigative techniques, methods, and thus investigations. The plaintiff and his attorneys may not have the knowledge of law enforcement and investigative processes, techniques, and 11 methods, to enable them to understand and identify the sensitive nature of the information claimed herein as protected by the law enforcement privilege. Without directing any aspersions toward the integrity of plaintiffs? attorneys, this agency simply cannot afford even a slight risk that the attorneys most closely involved with this case could lose possession or control of the documents or otherwise compromise their security, leading to improper and unauthorized use of the information. This risk of disruption and serious injury to ongoing and future investigations and serious injury to the results of prior investigations that would be caused by even inadvertent release of use of these investigative techniques and methods is unacceptable to ICE for the reasons stated above. Conclusion . The disclosure of the withheld and redacted information discussed herein would allow? potential violators to discover or circumvent ICE investigative techniques, and endanger ERO operations and employees. The disclosure of the withheld information would also jeopardize the overall effectiveness of ICE and third-party investigations. 4 Case Document 146-6 Filed 04/09/18 Page 5 of 5 12. Therefore, I respectfully assert the law enforcement privilege with respect to the withheld and redacted information, for the reasons set forth above. Pursuant to 28 U.S.C. ?1746, I declare under penalty of perjury that the foregoing is true and correct. Executed in Washington, DC. this 9th day oprril, 2018. Corey/A. Price Assistant Director, Enforcement Enforcement and Removal Operations US. Immigration and Customs Enforcement Case 2:17-cv-00094-RAJ Document 146-7 Filed 04/09/18 Page 1 of 10 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ) ABDIQAF AR WAGAFE, et al., ) ) ) ) v. ) ) DONALD TRUMP, President of the United) States, et al., ) ) Defendants. ) Plaintiffs, No. 2:17-cv-00094-RAJ DECLARATION ASSERTING LAW ENFORCEMENT PRIVILEGE I, John P. Wagner, hereby state as follows: 1. I am the Deputy Executive Assistant Commissioner, Office of Field Operations (OFO), U.S. Customs and Border Protection (CBP), Department of Homeland Security (DHS). I have been employed in this role since April 16, 2014. I began my career with the U.S. Customs Service as a Customs Inspector in 1991, and I had several assignments in the field, including at the New Jersey seaport and Newark International Airport and the Laredo port of entry. I was also detailed to the Department of Homeland Security, Border and Transportation Security Directorate. I have been assigned to the Office of Field Operations at Headquarters since 1999. I have worked on many different policy and operational issues during my time at headquarters, including serving as Executive Director, Admissibility and Passenger Programs. Case 2:17-cv-00094-RAJ Document 146-7 Filed 04/09/18 Page 2 of 10 2. In my role as the Deputy Executive Assistant Commissioner, I am responsible for executing the missions of CBP and OFO. The CBP mission includes the enforcement of the customs, immigration, and agriculture laws and regulations of the United States and the enforcement of hundreds of laws at the border on behalf of numerous federal agencies. OFO is the primary law enforcement agency responsible for securing the U.S. border at ports of entry (POEs) while facilitating lawful trade and travel. In my position, I supervise more than 28,000 employees, with operations at 20 major field offices, 328 POEs, and 70 locations in over 40 countries internationally. On average, OFO processes 1,088,300 passengers and pedestrians a day; 340,444 incoming international air passengers and crew; 55,709 passengers and crew arriving by vessel; 283,664 incoming privately owned vehicles; and 78,137 truck, rail, and sea containers. 3. As Deputy Executive Assistant Commissioner, I am familiar with CBP's administration and enforcement oflegal requirements at the border, including the enforcement and administration of immigration laws, including the inspection, processing, and admission of persons who seek to enter or depart the United States, and the detection, interdiction, removal, departure from the United States, short-term detention, and transfer of persons unlawfully entering, or who have recently unlawfully entered, the United States. To accomplish its mission, CBP officers conduct searches and inspections at the border and its functional equivalent. This requires using a variety of investigative and law enforcement techniques to determine, among other things, whether an alien is admissible. It also entails the exercise of border search authority, which authorizes CBP officers to detain and search persons and property at the border without suspicion or a warrant. 4. The effectiveness of CBP's mission is dependent to a large extent on the use of sensitive investigative techniques and methods that are not known to the general public. The 2 Case 2:17-cv-00094-RAJ Document 146-7 Filed 04/09/18 Page 3 of 10 disclosure of these techniques and methods would seriously compromise CBP's ability to perform its law enforcement mission to enforce the law at the border. 5. This declaration is based on my personal knowledge, my personal review and appraisal of the claims of law enforcement privilege hereby asserted and the factual background of the case, as well as information conveyed to me by my staff and other knowledgeable CBP personnel in the course of my official duties and responsibilities. 6. I have personally reviewed the records and information that were withheld from production. I am making this Declaration for the purpose of asserting the law enforcement privilege with respect to CBP information that was contained within the A-files that were produced in this case. For the reasons set forth below, I have determined that the disclosure of this information would be contrary to the public interest, because it would reveal CBP's confidential law enforcement techniques, methods and procedures, as further discussed below. 7. The documents at issue fall into two main categories: a. TECS records; b. Records pertaining to targeting and operations TECS RECORDS 8. TECS, which is principally owned and managed by CBP, is an overarching law enforcement information collection, analysis, and sharing environment that secur-ely links telecommunications devices and personal computers to a central system and database. This environment is comprised of several modules designed to collect, maintain, and vet data as well as conduct analysis, risk assessments, and information sharing. TECS contains temporary and permanent enforcement, inspection, and intelligence records relevant to the law enforcement 3 Case 2:17-cv-00094-RAJ Document 146-7 Filed 04/09/18 Page 4 of 10 mission of CBP and numerous other federal agencies that it supports. TECS is CBP's principal law enforcement and anti-terrorism data base system. TECS is described in further detail in the Federal Register at 73 Fed. Reg. 77778 (Dec. 19, 2008). 9. The TECS records produced during discovery in this case contain law enforcement sensitive material. Access to TECS records is tightly constrained, even within CBP. The harm which could be caused by release of this sensitive information outside of the carefully controlled context in which it is created, interpreted, and maintained is significant and far-reaching. The threat to the safe and effective enforcement oflaw and border security is most apparent with respect to the disclosure of: a) system codes; b) procedures and techniques; c) subject-specific analysis; and d) third-party data. a. The computer codes at issue facilitate access to, and navigation through, TECS. Individuals who know the meaning of the codes would have sufficient law enforcement information regarding how CBP conducts its law enforcement operations, which would permit individuals to alter their patterns of conduct, adopt new methods of operation, relocate, change associations, and effectuate other countermeasures, thus corrupting the integrity of ongoing investigations. Public dissemination of these access codes would reveal the technical capabilities of the system and could permit unauthorized users to manipulate records to avoid recognition, detection and apprehension. It woul_d also arm unauthorized users with the ability to corrupt the integrity of the data contained therein through the alteration/manipulation of such data. In addition, if the system were to be hacked, it would permit the intruder to potentially manipulate 4 Case 2:17-cv-00094-RAJ Document 146-7 Filed 04/09/18 Page 5 of 10 the way certain records are created and maintained, which could put at risk ongoing investigations and border security operations. b. The TECS records include date stamps, internal IP addresses, contact information and communication methods, instructions on handling inspections of travelers, and similar information that reveals the procedures and techniques used by law enforcement. While some of this data may appear innocuous taken in isolation, such information can place investigative activities in a precise context, pinpoint key players and events, identify critical tools and resources, and reveal the extent and shortfalls oflaw enforcement's knowledge of criminal or terrorist endeavors and/or immigration violations. Moreover, such information creates a basis for comparison of the handling of different inspections, which could reveal the nature and extent of the government's law enforcement interest in particular situations. Because this information can be used to clarify or predict a CBP officer's behavior in specific circumstances, the risk of circumvention of enforcement efforts or harm to officers or informants is significant. In addition, the TECS records include information that would reveal the capabilities of TECS, the release of which would impede CBP's law enforcement mission by alerting individuals to how CBP conducts searches of its systems and any limitations. c. The TECS records containing remarks and analysis specific to the Plaintiffs are law enforcement sensitive. The TECS data at issue here, among other things, contains information regarding border inspections; the identification of law enforcement agencies and officers involved, contact information, and 5 Case 2:17-cv-00094-RAJ Document 146-7 Filed 04/09/18 Page 6 of 10 respective roles; and actions to be taken by law enforcement officers. The release of this information would have the unintended and undesirable effect of placing these law enforcement techniques and strategies in the public domain, in the possession of the specific individuals whose records are at issue, and at the disposal of other similarly situated individuals; educating them as to the investigative techniques used and thereby assisting them to devise methods to evade detection and apprehension; and, ultimately, impairing the effectiveness of those law enforcement techniques. d. The TECS records at issue integrate or reference data belonging to third-party agencies or departments. As a preliminary matter, disclosure of such information threatens efforts to foster open communication across agencies and cohesive law enforcement and national security efforts. Because of the interconnectivity between CBP's law enforcement databases and those of other agencies, disclosure of the information contained in the database could have far-reaching effects, impairing other agencies' law enforcement operations or their ability to effectively carry out their respective missions. Knowledge of this information would increase the risk of circumvention of laws and regulations, compromise the electronic records system, facilitate improper access to sensitive investigatory and other law enforcement records, impede effectiveness of law enforcement activities, and endanger agency investigative practices and techniques. e. The TECS records at issue integrate or reference data concerning non-parties. Disclosure of such information would reveal law enforcement information 6 Case 2:17-cv-00094-RAJ Document 146-7 Filed 04/09/18 Page 7 of 10 unrelated to the Plaintiffs. Disclosure of this identifying information would jeopardize investigations, and impair CBP's operations and ability to carry out its mission. 10. Although a few factors used by CBP officers to conduct border inspections are in the public domain in court opinions or other contexts, the TECS format itself reveals more about the techniques that CBP officers use to conduct border inspections and assess risk than the information that can be gleaned from publically available information. Because the data fields for entering remarks and analysis in TECS are of limited capacity, an officer creating a TECS entry must prioritize the information he or she believes most essential for another officer's decision about when and how to conduct an inspection. Thus, disclosure of the remarks in TECS would reveal not only information unique to those particular inspections, but also information about inspectional activities generally, such as the kind of information considered important to the exercise of officer discretion, and the relative weight given different factors. Information about such "red flags," if unprotected, could enable individuals to thwart efforts to secure the border and enforce immigration and customs laws. Moreover, information entered into TECS limited data fields must necessarily be abbreviated. Disclosure of this shorthand communication would serve no legitimate public interest, as its meaning would be irretrievably distorted once taken from the tightly-controlled context in which it is created, interpreted, and shared solely by and between law enforcement personnel. RECORDS PERTAINING TO TARGETING AND OPERATIONS 11. Documents pertaining to targeting and operations included in the A-files produced in this case contain law-enforcement sensitive material. Such documents include, for example, 7 Case 2:17-cv-00094-RAJ Document 146-7 Filed 04/09/18 Page 8 of 10 department records which contain CBP law enforcement information and related documentation. This information describes in detail actions taken by CBP personnel under specific circumstances in furtherance of investigation and enforcement efforts and includes information in a format that reveals law enforcement priorities. This information also includes the use of specific codes and data fields in government databases, which is law enforcement sensitive for the reasons set forth above. This information applies in investigative and enforcement circumstances far beyond this single case. 12. Disclosure of information pertaining to targeting and operations could risk law enforcement techniques and procedures by revealing the information CBP considers in conducting law enforcement activities, as well as CBP's priorities when conducting these activities. These records would reveal information about inspectional activities generally, such as the kind of information considered important to the exercise of officer discretion, and the relative weight given different factors. Information about such "red flags," if unprotected, can enable individuals to thwart efforts to secure the border and enforce customs and immigration laws. 13. The release of the sensitive information contained in records pertaining to targeting and operations would have the unintended and undesirable effect of placing CBP's law enforcement techniques and strategies in the public domain and at the disposal of other similarly situated individuals; educating them as to the investigative techniques used and thereby assisting - them to devise methods to evade detection and apprehension; and, ultimately, impairing the effectiveness of those law enforcement techniques. 14. The records at issue pertaining to targeting and operations integrate or reference data belonging to third-party agencies or departments. As a preliminary matter, disclosure of such information threatens efforts to foster open communication across agencies and cohesive law 8 Case 2:17-cv-00094-RAJ Document 146-7 Filed 04/09/18 Page 9 of 10 enforcement and national security efforts. Disclosure of the information contained in these records could have far-reaching effects, impairing other agencies' law enforcement operations or their ability to effectively carry out their respective missions. Knowledge of this information would increase the risk of circumvention of laws and regulations, impede effectiveness of law enforcement activities, and endanger agency investigative practices and techniques. 15. The records at issue integrate or reference data concerning third-party importers. Disclosure of such information would reveal the targets and subjects of governmental investigations unrelated to the Plaintiffs. Disclosure of this identifying information would jeopardize investigations, and impair CBP's operations and ability to carry out its mission. CONCLUSION 16. In my judgment, the disclosure of the withheld and redacted information discussed herein would allow potential violators to discover or circumvent CBP investigative techniques, and endanger CBP operations and personnel at POEs. Specifically, the disclosure of these techniques would enable potential violators to evade CBP inspection processes and law enforcement activities, and place CBP officers and the public in harm's way. The disclosure of the withheld information would also jeopardize the overall effectiveness of CBP and third-party investigations. 17. Accordingly, in my opinion, the disclosure of the redacted information -would impede law enforcement and impair CBP's ability to apprehend violators of the many laws enforced by CBP. 18. Therefore, I respectfully assert the law enforcement privilege with respect to the withheld and redacted information, for the reasons set forth above. 9 Case 2:17-cv-00094-RAJ Document 146-7 Filed 04/09/18 Page 10 of 10 I declare, under penalty of perjury, that the foregoing is true and correct to the best of my information, knowledge and belief. /'"fl-- Executed on the Jo S day of Ariz_t1-=, 2018. agner y Executive Assistant Commissioner Office of Field Operations U.S. Customs and Border Protection 10