Case 2:17-cv-00094-RAJ Document 150 Filed 04/13/18 Page 1 of 14 1 THE HONORABLE RICHARD A. JONES 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 ABDIQAFAR WAGAFE, et al., on behalf of themselves and others similarly situated, 11 12 13 14 15 Plaintiffs, v. DONALD TRUMP, President of the United States; et al., No. 2:17-cv-00094-RAJ PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR SANCTIONS AGAINST DEFENDANTS NOTE ON MOTION CALENDAR: APRIL 13, 2018 Defendants. 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFF’S REPLY ISO MOTION FOR SANCTIONS (No. 2:17-cv-00094-RAJ) Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 150 Filed 04/13/18 Page 2 of 14 1 TABLE OF CONTENTS 2 3 Page I. 4 5 6 DEFENDANTS ARE VIOLATING MULTIPLE COURT ORDERS .............................. 1  A. Defendants’ Tactics Have Repeatedly Delayed the Production Schedule.................... 1  B. Defendants Did Not Produce the Class List as Ordered by the Court. ......................... 2  C. Defendants Continue to Withhold Information on Why Named Plaintiffs Were Subjected to CARRP Despite the Court’s Clear Order. ............................................... 3  D. Defendants Have Not Disclosed PETT Information Despite Clear Court Order. ........ 6  7 8 9 10 II. DEFENDANTS HAVE NOT SHOWN THAT THEIR ACTIONS AND VIOLATIONS ARE SUBSTANTIALLY JUSTIFIED............................................................................... 6  III. PLAINTIFFS ARE ENTITLED TO FEES FROM SEPTEMBER 2017 ........................... 7  11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFF’S REPLY ISO MOTION FOR SANCTIONS (No. 2:17-cv-00094-RAJ) – i Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 150 Filed 04/13/18 Page 3 of 14 1 TABLE OF AUTHORITIES 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Page CASES Applied Sys., Inc. v. N. Ins. Co. of New York, No. 97 C 1565, 1997 WL 639235 (N.D. Ill. Oct. 7, 1997) ........................................................4 Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t of Health & Human Res., 532 U.S. 598 (2001) ...................................................................................................................8 Fink v. Gomez, 239 F.3d 989 (9th Cir. 2001) .....................................................................................................2 Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (2017) ...........................................................................................................2, 7 Halaco Eng’g Co. v. Costle, 843 F.2d 376 (9th Cir. 1988) .....................................................................................................7 Liew v. Breen, 640 F.2d 1046 (9th Cir. 1981) ...............................................................................................6, 7 Stonehill v. I.R.S., 558 F.3d 534 (D.C. Cir. 2009) ...................................................................................................5 United States v. $43,660.00 in U.S. Currency, No. 1:15CV208, 2016 WL 1629284 (M.D.N.C. Apr. 22, 2016) ...............................................4 19 Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (9th Cir. 2001) ...................................................................................................7 20 STATUTES 21 28 U.S.C. § 2412(d) .........................................................................................................................8 22 49 U.S.C. § 114(r) ............................................................................................................................5 23 RULES 24 25 26 Fed R. Civ. P. 34(b)(2).....................................................................................................................5 Fed. R. Civ. P. 37(a)(5) ................................................................................................................7, 8 Fed. R. Civ. P. 37(b)(2)(C) ..............................................................................................................7 PLAINTIFF’S REPLY ISO MOTION FOR SANCTIONS (No. 2:17-cv-00094-RAJ) – ii Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 150 Filed 04/13/18 Page 4 of 14 1 TABLE OF AUTHORITIES (continued) 2 3 4 5 6 Page Fed. R. Civ. P. 37 .....................................................................................................................5, 7, 8 REGULATIONS 49 C.F.R. § 1520.15 .........................................................................................................................5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFF’S REPLY ISO MOTION FOR SANCTIONS (No. 2:17-cv-00094-RAJ) – iii Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 150 Filed 04/13/18 Page 5 of 14 1 Defendants fail to demonstrate that sanctions are not an appropriate response to their 2 violations of the Court’s orders. Defendants do not explain why they were unable to comply 3 with the Court’s clear directives or why they could not have raised their new privilege concerns 4 regarding the A-Files or moved for additional restrictions on the Class List months ago. Indeed, 5 their opposition is consistent with their overall approach to discovery: it belatedly raises layer 6 upon layer of new privilege assertions, the effect of which will be to prolong discovery 7 unnecessarily and further delay adjudication on the merits. Defendants should be monetarily 8 sanctioned for their abuses of the discovery process and their disregard of multiple court orders. 9 Plaintiffs further request the Court order Defendants to produce Named Plaintiffs’ A-Files 10 without redacting why they were subjected to CARRP and other responsive documents and 11 information about the President-Elect Transition Team (“PETT”).1 I. 12 DEFENDANTS ARE VIOLATING MULTIPLE COURT ORDERS Defendants are violating multiple court orders regarding (A) the production schedule, (B) 13 14 the Class List, (C) information regarding why Named Plaintiffs were subjected to CARRP, and 15 (D) information as to any custodian, regardless of current position, on the PETT. 16 A. Defendants’ Tactics Have Repeatedly Delayed the Production Schedule. Contrary to Defendants’ assertion (Opp’n at 8 n.5), Plaintiffs do seek relief for 17 18 Defendants’ violation of the Court’s order to produce documents responsive to RFPs 23 and 24 19 by dates certain. The Court twice ordered Defendants to produce these documents on a very 20 specific timeline. Dkts. 98, 104. Because Defendants did not comply with these specific orders, 21 but instead improperly attempted to re-litigate the scope of the Executive Order discovery, 22 Plaintiffs were forced to bring this issue to the Court’s attention in two hearings in February. 23 Declaration of Laura K. Hennessey in Support of Motion for Sanctions (“Hennessey Decl.”), 24 25 26 1 The Court addressed a portion of Plaintiffs’ requested relief in ordering Defendants to produce the Class List within 14 days of the Court’s April 11, 2018 Order. Dkt. 148 at 9-10. Plaintiffs request that the Court further order Defendants to produce an updated Class List every 90 days consistent with the April 11 Order. CERTIFICATE OF SERVICE (No. 2:17-cv-00094-RAJ) – 1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 150 Filed 04/13/18 Page 6 of 14 1 Exs. A & L. The Court directed the parties to reach agreement on dates certain for the 2 production of these materials. Id., Ex. A at 86:23-25. Instead of doing so, Defendants have 3 submitted multiple status reports indicating that they cannot agree to Plaintiffs’ proposed 4 schedule and refusing to even propose an alternate schedule. Dkt. 117 at 2; Dkt. 124 at 2; Dkt. 5 130 at 2. Defendants violated the Court’s two very clear orders to produce documents on a 6 specific timetable, and they are exploiting the Court’s request for compromise by continually 7 refusing to commit to any firm discovery schedule. Moreover, the protracted history of Defendants’ negotiation tactics and resultant delays 8 9 surrounding the production of documents in this case is independently sanctionable under the 10 Court’s inherent authority “to manage [its] own affairs so as to achieve the orderly and 11 expeditious disposition of cases.” Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 12 1186 (2017). That authority to levy sanctions exists independently of any statute or court rule. 13 See Fink v. Gomez, 239 F.3d 989, 994 (9th Cir. 2001). Defendants’ opposition brief does not 14 contradict the relevant facts. Plaintiffs served their First RFPs on August 1, 2017. See 15 Hennessey Decl., Ex. B. By Defendants’ own admission, on February 16, 2018—over six 16 months later—Defendants provided Plaintiffs and the Court with their “best estimate of the time 17 it would take to complete production.” Opp’n at 6-7. And the “best estimate” Defendants 18 provided was that they required another six months to complete production. Id. Defendants’ 19 position that they need an entire year to complete production of documents for one set of 20 requests is unreasonable on its face, and contrary to the previously agreed-upon, Court-ordered 21 case schedule. Any monetary sanction the Court awards should reflect this entire history—not 22 the truncated post-February history that Defendants wrongly assert to be the relevant time period. 23 B. 24 Defendants Did Not Produce the Class List as Ordered by the Court. Defendants are violating the Court’s October 19, 2017 order to produce a Class List (Dkt. 25 98 at 2-4)—an order the Court underscored when denying their motion for reconsideration (Dkt. 26 102) and during the February 14 hearing (Hennessey Decl., Ex. L at 26:17-22, 28:6-15). PLAINTIFF’S REPLY ISO MOTION FOR SANCTIONS (No. 2:17-cv-00094-RAJ) – 2 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 150 Filed 04/13/18 Page 7 of 14 1 Defendants’ arguments that the Court “acknowledged” they intended to seek relief from its prior 2 order, and that the relief they later sought was “in accordance with the Court’s prior suggestions” 3 (Opp’n at 9), are inconsistent with the totality of the Court’s comments. 4 First, though the Court may have acknowledged that Defendants planned to seek some 5 unidentified form of relief regarding the Class List, Defendants never informed the Court of the 6 breadth of that relief. Moreover, the Court took care to “reemphasize” that “two orders [had] 7 already been issued” on the Class List—orders with which the Court expected “full compliance” 8 on March 5. Hennessey Decl., Ex. L at 26:17-22, 28:6-15. Instead, Defendants did not produce 9 a Class List on March 5, and withheld the names and A Numbers of all class members in the 10 document they provided. Had Plaintiffs been aware at the February 14 hearing that Defendants 11 planned to take that approach, Plaintiffs would have objected strenuously that such approach 12 would plainly violate the Court’s orders to produce the Class List. 13 Second, Defendants provide no explanation for their delay in seeking to supplement the 14 Protective Order on the Class List. The Court suggested that the parties may supplement the 15 Protective Order in October 2017, but Defendants inexplicably waited until four days before 16 their production deadline to move for relief. Defendants had no reason to wait this long to act. 17 Moreover, the Court has now rejected Defendants’ argument that “the class list, generally, must 18 be subject to an ‘attorney eyes only’ provision,” and has ordered that the Class List be produced 19 while allowing Defendants to assert “attorney eyes only” protections on a case-by-case basis 20 supported by “sufficient detail and specificity.” Dkt. No. 148 at 9-10. C. Defendants Continue to Withhold Information on Why Named Plaintiffs Were Subjected to CARRP Despite the Court’s Clear Order. 21 22 Defendants are violating the Court’s October 19, 2017 Order compelling the production 23 of documents regarding why Named Plaintiffs were subjected to CARRP. To date, Defendants 24 have not produced responsive documents describing why Named Plaintiffs were subjected to 25 CARRP. Instead, Defendants produced A-Files that improperly redacted the exact information 26 that the Court ordered Defendants to produce. Worse, Defendants’ response acknowledges that PLAINTIFF’S REPLY ISO MOTION FOR SANCTIONS (No. 2:17-cv-00094-RAJ) – 3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 150 Filed 04/13/18 Page 8 of 14 1 there may be other documents explaining why Named Plaintiffs were subjected to CARRP that 2 they have not even searched for. See Opp’n at 5 n.4 (“If the Plaintiffs were subject to the 3 CARRP policy, some number of ‘why’ documents would not necessarily be in the Plaintiffs’ A- 4 Files. Those documents, to the extent they exist will be reviewed for privilege; the non- 5 privileged portions will be produced once review is complete.”). Thus, Defendants still have not 6 searched for documents they were ordered to produce six months ago. 7 Indeed, it is only now, when forced to respond to Plaintiffs’ motion for sanctions, that 8 Defendants submit six declarations from various federal agencies that purport to formally assert 9 privileges to support Defendants’ decision to withhold or redact information from their A-File 10 production. See Declarations of John P. Wagner, Matthew D. Emrich, Corey A. Price, Tatum 11 King, Douglas Blair, and Carl Ghattas. Defendants seek to submit additional declarations ex 12 parte and in camera. Dkt. 147. Citing no legal authority, Defendants contend that they could 13 not have raised these privilege concerns earlier because doing so would have “waiv[ed] the 14 threshold claim of privilege then being litigated.” Opp’n at 3; see also id. at 12. But Defendants 15 have it backwards. “Failing to timely assert a privilege results in its waiver.” United States v. 16 $43,660.00 in U.S. Currency, No. 1:15CV208, 2016 WL 1629284, at *5 (M.D.N.C. Apr. 22, 17 2016); see also Applied Sys., Inc. v. N. Ins. Co. of New York, No. 97 C 1565, 1997 WL 639235, 18 at *2 (N.D. Ill. Oct. 7, 1997) (finding waiver of privilege assertion where defendant produced 19 nothing in the months following plaintiff’s discovery requests and did not apprise the plaintiff of 20 its intent to object based on privilege or the work-product doctrine until the motion to compel 21 hearing). Neither logic nor legal authority supports Defendants piecemeal strategy of raising 22 privilege claims seriatim. Rather, Defendants have waived these late privilege claims by 23 asserting them only after months of delay and when faced with a sanctions motion. 24 Defendants’ tactics prejudice Plaintiffs’ ability to prosecute this case, forcing them into 25 an endless game of whack-a-mole, defeating one claim of privilege only to find another one pop 26 up. The Federal Rules of Civil Procedure aim to prevent this conduct by requiring parties to PLAINTIFF’S REPLY ISO MOTION FOR SANCTIONS (No. 2:17-cv-00094-RAJ) – 4 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 150 Filed 04/13/18 Page 9 of 14 1 submit responses and objections to written discovery within 30 days. See FED R. CIV. P. 2 34(b)(2). That is when the responding party should lodge any objections on the basis of 3 privilege—not in response to a motion to compel, in a motion for reconsideration after losing the 4 motion to compel, or in opposition to a motion for sanctions after failing to comply with court 5 orders many months later. “[I]n a discovery proceeding there are potentially adverse 6 consequences if the agency fails to examine the documents and to raise all its defenses: The 7 district court may order production, see FED. R. CIV. P. 37, and the agency could not rely on 8 immediate appeal.” Stonehill v. I.R.S., 558 F.3d 534, 540-41 (D.C. Cir. 2009). Defendants have 9 not made a good faith effort to comply with the Court’s October 19, 2017 order to produce 10 information regarding why Named Plaintiffs were subjected to CARRP, and they have waived 11 their right to assert new privileges at this juncture. The Court should order Defendants to 12 produce the unredacted A-Files and any other documents responsive to why Named Plaintiffs 13 were subjected to CARRP by a date certain. 14 However, if the Court wishes to consider the merits of Defendants’ new privilege claims, 15 this sanctions motion is not the proper vehicle for doing so, and Plaintiffs would request the 16 opportunity to brief these issues outside of this reply brief for sanctions. Plaintiffs note that the 17 declarations Defendants have submitted contain inconsistencies and raise additional concerns. 18 For example, one of the declarations asserts privilege bases that were not even asserted in the 19 privilege logs that accompanied Defendants’ productions. See Blair Decl. (asserting privilege 20 pursuant to 49 U.S.C. § 114(r) and implementing regulations at 49 C.F.R. § 1520.15, which 21 prohibit public release of Sensitive Security Information). Defendants offer no explanation for 22 waiting until now to assert these new privileges, especially when “the majority of withheld 23 documents in the named plaintiffs[’] A-Files originated with UCSIS [sic].” See Emrich Decl., ¶¶ 24 9, 21. Even the minority of documents that Defendants claim originated with other agencies 25 were already in Defendants’ possession, and Defendants knew they were relevant to Plaintiffs’ 26 discovery requests. It is unreasonable for Defendants to shop for additional privileges now, only PLAINTIFF’S REPLY ISO MOTION FOR SANCTIONS (No. 2:17-cv-00094-RAJ) – 5 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 150 Filed 04/13/18 Page 10 of 14 1 after Plaintiffs filed their motion for sanctions. See Blair Decl., ¶ 6 n.2 (asserting a new privilege 2 in support of Defendants’ opposition to the sanctions motion, noting Defendants did not bring 3 the discovery requests “to TSA’s attention until April 5, 2018”). Additionally, Defendants’ supporting declarations make general, unsupported claims that 4 5 information should be withheld because Plaintiffs’ counsel might disclose information in 6 violation of the Protective Order. See King Decl., ¶ 14 (“Without directing any aspersions 7 toward the integrity of plaintiffs’ attorneys, this agency simply cannot afford even a slight risk 8 that the attorneys most closely involved with this case could lose possession or control of the 9 documents . . . .”); Price Decl., ¶ 10 (same). If suggesting that a protective order may be 10 disobeyed were sufficient to justify withholding material altogether, any party could avoid 11 production of any confidential material, and protective orders would be rendered meaningless. 12 Such speculation, certainly cannot form the basis for failing to follow existing court orders. 13 D. 14 Defendants Have Not Disclosed PETT Information Despite Clear Court Order. Defendants’ explanation for why they refuse to tell Plaintiffs whether John Kelly served 15 on the PETT strains credulity. Defendants repeat back the Court’s unqualified directive to 16 answer the simple question: “Of the Custodians in this litigation, who among them were on the 17 transition team?” See Opp’n at 11. Instead of answering this question with respect to Mr. Kelly, 18 Defendants claim they “understood the Court’s order in the context of its prior order refusing to 19 permit discovery from the President.” Id. This “understanding” is unsupportable. The Court 20 took pains to narrow the information request to a clear, simple order. Hennessey Decl., Ex. L at 21 20:9-21:17. Defendants were on notice that this order included all custodians in the case. 22 Indeed, during the argument on this point, Plaintiffs mentioned Mr. Kelly by name and 23 highlighted the importance of knowing whether he had served on the PETT. Id. at 18:3-7. 24 25 26 II. DEFENDANTS HAVE NOT SHOWN THAT THEIR ACTIONS AND VIOLATIONS ARE SUBSTANTIALLY JUSTIFIED Defendants bear “the burden of showing the special circumstances that make [their] failure to comply ‘substantially justified.’” Liew v. Breen, 640 F.2d 1046, 1050 (9th Cir. 1981). PLAINTIFF’S REPLY ISO MOTION FOR SANCTIONS (No. 2:17-cv-00094-RAJ) – 6 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 150 Filed 04/13/18 Page 11 of 14 1 Defendants fail to meet this burden because their positions are not “good faith dispute[s] 2 concerning a discovery question,” but rather are unreasonable departures from the Court’s 3 orders. Id.; see also Section I, supra. 4 Relatedly, Defendants’ assertion that Plaintiffs must demonstrate prejudice to obtain 5 sanctions is simply wrong. See Opp’n at 14. Prejudice is a “purely optional” factor for the 6 court’s consideration, Halaco Eng’g Co. v. Costle, 843 F.2d 376, 382 (9th Cir. 1988), and it is 7 Defendants’ burden to prove that their violation of multiple court orders was harmless, Yeti by 8 Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001) (“Implicit in [Rule 9 37] is that the burden is on the party facing sanctions to prove harmlessness.”). Even if the Court 10 reaches the issue, Plaintiffs have articulated the substantial prejudice they have faced in 11 prosecuting this case in the face of Defendants’ conduct. Along with diverting hundreds of 12 thousands of dollars’ worth of legal work away from the merits of the case and toward litigating 13 and re-litigating meritless discovery disputes, class members remain harmed by the delay in the 14 adjudication of their immigration benefit applications and the ultimate determination of whether 15 CARRP and successor “extreme vetting” programs are illegal. Like the Court, Plaintiffs also 16 “hope[] to proceed to the merits in this matter rather than interminably remain in this morass of 17 unnecessary delays and discovery disputes.” Dkt. No. 148 at 11. 18 III. PLAINTIFFS ARE ENTITLED TO FEES FROM SEPTEMBER 2017 19 The Court has the authority, both inherent and under Rule 37, to award monetary 20 sanctions tied to conduct going back to the disputes surrounding Plaintiffs’ motion to compel in 21 September 2017. In addition to mandating fees “caused by failure” to obey a court order (Rule 22 37(b)(2)(C)), Rule 37 also mandates fees resulting from efforts to secure an order to compel 23 discovery (Rule 37(a)(5)). The Court further possesses inherent powers to fashion appropriate 24 sanctions, including the award of opposing party’s legal fees. See Goodyear Tire, 137 S. Ct. at 25 1186. Defendants attempt to artificially limit Plaintiffs’ recovery to only fees caused by 26 violations of court orders under Rule 37(b)(2)(C) to work after February 28, 2018. See Opp’n at PLAINTIFF’S REPLY ISO MOTION FOR SANCTIONS (No. 2:17-cv-00094-RAJ) – 7 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 150 Filed 04/13/18 Page 12 of 14 1 7, 16. Defendants fail to address the persuasive authority in Plaintiffs’ motion that they are also 2 entitled to fees under Rule 37(a)(5) because they were forced to file multiple motions to compel 3 and engage in lengthy and unnecessary conferrals regarding discovery issues. See Mot. at 12-13 4 (citing Hernandez v. Sessions, No. EDCV16-620-JGB(KKx), 2018 WL 276687, at *1 (C.D. Cal. 5 Jan. 3, 2018)). The Court should thus impose monetary sanctions beginning with the parties’ 6 meet and confer that led to Plaintiffs’ September 2017 motion to compel. 7 The fee declarations supporting Plaintiffs’ motion also did not include the fees sought for 8 legal work after February 28, 2018 to prepare this motion for sanctions. If the Court awards fees, 9 Plaintiffs respectfully request that the Court permit Plaintiffs to provide supplemental 10 declarations accounting for the hours spent conferring, briefing, and arguing this motion for 11 sanctions, all of which were directly caused by Defendants’ obstructionist actions occurring after 12 February 28, 2018. 13 The possibility that Plaintiffs may eventually be awarded fees under the Equal Access to 14 Justice Act (“EAJA”) in no way suggests that fees should not be awarded for Defendants’ 15 discovery abuses now. Plaintiffs may seek fees as prevailing parties under EAJA after a case 16 concludes and final judgment is entered. 28 U.S.C. § 2412(d); Buckhannon Bd. & Care Home, 17 Inc. v. W. Virginia Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001). In contrast, Rule 18 37 authorizes the court to order payment for expenses in making motions to compel and to order 19 “the disobedient party . . . to pay the reasonable expenses, including attorney’s fees,” caused by 20 failure to comply with a discovery order—the very situation in which Plaintiffs find themselves 21 now. Rule 37 makes no exception based on the potential recovery of fees under the EAJA or any 22 other fee-shifting mechanism tied to the outcome of a case. Consistent with Rule 37’s purpose to 23 address discovery abuses, an award of fees now is proper and just and will help ensure full 24 compliance with the Court’s orders moving forward. 25 26 PLAINTIFF’S REPLY ISO MOTION FOR SANCTIONS (No. 2:17-cv-00094-RAJ) – 8 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 150 Filed 04/13/18 Page 13 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 By: s/Jennifer Pasquarella (admitted pro hac vice) s/Sameer Ahmed (admitted pro hac vice) ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles, CA 90017 Telephone: (213) 977-5236 Facsimile: (213) 997-5297 jpasquarella@aclusocal.org sahmed@aclusocal.org s/Matt Adams s/Glenda M. Aldana Madrid Matt Adams #28287 Glenda M. Aldana Madrid #46987 Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98122 Telephone: (206) 957-8611 Facsimile: (206) 587-4025 matt@nwirp.org glenda@nwirp.org s/ Harry H. Schneider, Jr. Harry H. Schneider, Jr. #9404 s/ Nicholas P. Gellert Nicholas P. Gellert #18041 s/ David A. Perez David A. Perez #43959 s/ Laura K. Hennessey Laura K. Hennessey #47447 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: HSchneider@perkinscoie.com NGellert@perkinscoie.com DPerez@perkinscoie.com LHennessey@perkinscoie.com s/Stacy Tolchin (admitted pro hac vice) Law Offices of Stacy Tolchin 634 S. Spring St. Suite 500A Los Angeles, CA 90014 Telephone: (213) 622-7450 Facsimile: (213) 622-7233 Stacy@tolchinimmigration.com s/Trina Realmuto (admitted pro hac vice) s/Kristin Macleod-Ball (admitted pro hac vice) Trina Realmuto Kristin Macleod-Ball American Immigration Council 100 Summer St., 23rd Fl. Boston, MA 02110 Tel: (857) 305-3600 Email: trealmuto@immcouncil.org Email: kmacleod-ball@immcouncil.org s/Emily Chiang Emily Chiang #50517 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Echiang@aclu-wa.org 24 s/Hugh Handeyside Hugh Handeyside #39792 s/Lee Gelernt (admitted pro hac vice) s/Hina Shamsi (admitted pro hac vice) American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 Telephone: (212) 549-2616 Facsimile: (212) 549-2654 lgelernt@aclu.org hhandeyside@aclu.org hshamsi@aclu.org 25 Attorneys for Plaintiffs 14 15 16 17 18 19 20 21 22 23 26 PLAINTIFF’S REPLY ISO MOTION FOR SANCTIONS (No. 2:17-cv-00094-RAJ) – 9 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 150 Filed 04/13/18 Page 14 of 14 CERTIFICATE OF SERVICE 1 2 3 4 5 6 The undersigned certifies that on the dated indicated below, I caused service of the foregoing PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR SANCTIONS AGAINST DEFENDANTS via the CM/ECF system that will automatically send notice of such filing to all counsel of record herein. DATED this 13th day of April, 2018, at Seattle, Washington. s/ Laura K. Hennessey Laura K. Hennessey #47447 Attorneys for Plaintiffs Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: LHennessey@perkinscoie.com 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF SERVICE (No. 2:17-cv-00094-RAJ) – 1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000