Case 2:17-cv-00178-JLR Document 166 Filed 10/22/18 Page 1 of 16 1 THE HONORABLE JAMES L. ROBART 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 JOHN DOE, et al., CASE NO. C17-0178JLR 10 Plaintiffs, PLAINTIFFS’ JOINT MOTION TO COMPEL 11 v. 12 DONALD TRUMP, et al., 13 NOTE ON MOTION CALENDAR: November 9, 2018 Defendants. ORAL ARGUMENT REQUESTED 14 15 JEWISH FAMILY SERVICE, et al., CASE NO. C17-1707JLR 16 Plaintiffs, (RELATING TO BOTH CASES) 17 v. 18 DONALD TRUMP, et al., 19 Defendants. 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ JOINT MOTION TO COMPEL (No. 17-cv-0178-JLR) 141657978.2 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 T: 206.359.8000 / F: 206.359.9000 Case 2:17-cv-00178-JLR Document 166 Filed 10/22/18 Page 2 of 16 1 These consolidated cases challenge Defendants’ unlawful suspension of portions of 2 refugee admissions and processing, which this Court preliminarily enjoined last December. In 3 denying without prejudice Defendants’ motion to dismiss this case as moot, this Court authorized 4 jurisdictional discovery on whether the case is in fact moot, including on “Defendants’ efforts to 5 implement the preliminary injunction and their efforts to restore the status quo” that existed prior 6 to the issuance of the challenged refugee suspensions. ECF No. 155 at 25. Since then, Plaintiffs 7 have diligently pursued discovery on those facts from Defendants, who have produced documents 8 and raw data on refugee processing. Although the parties have worked together in good faith to 9 resolve several disagreements, a few significant disputes remain on which Plaintiffs are, pursuant 10 to Federal Rule of Civil Procedure 37(a), seeking the Court’s assistance. 11 First, Plaintiffs seek an order from this Court permitting Plaintiffs to take particular 12 depositions and requiring Defendants to respond to a set of six interrogatories. The documents 13 produced thus far have revealed several areas of significant concern regarding injunction 14 compliance, and this additional discovery is needed to resolve outstanding questions, including the 15 measures that could now be taken to remedy any noncompliance. Given the importance of the 16 issues, the need for the discovery to resolve them, and Defendants’ exclusive control over the 17 relevant information, Defendants’ proportionality objection to this discovery should be overruled. 18 Second, Plaintiffs seek an order compelling Defendants to produce discrete categories of 19 information and documents that they have redacted or withheld as either privileged or as not 20 responsive to Plaintiffs’ document requests. Even assuming the “law enforcement sensitive” 21 privilege that Defendants assert exists, the allegedly privileged information is already widely and 22 publicly known, and so Defendants cannot meet their burden of proof. The refusal to produce 23 documents and to lift redactions on the grounds of non-responsiveness, meanwhile, is even less 24 justified, as it is premised on Defendants’ unilateral decision to substitute their own judgment 25 about what Plaintiffs should have requested, rather than what Plaintiffs did request. 26 27 Should the Court believe it would be helpful, Plaintiffs’ counsel stands ready and willing to appear in person or telephonically to discuss the instant motion. 28 PLAINTIFFS’ JOINT MOTION TO COMPEL (No. 17-cv-0178-JLR) – 1 141657978.2 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 T: 206.359.8000 / F: 206.359.9000 Case 2:17-cv-00178-JLR Document 166 Filed 10/22/18 Page 3 of 16 1 PERTINENT FACTUAL & PROCEDURAL BACKGROUND 1 2 Shortly after this Court granted jurisdictional discovery, Plaintiffs jointly served a set of 3 three discovery requests, which sought the production of documents reflecting: (1) how 4 Defendants implemented the challenged portions of the Agency Memo, related changes to SAO 5 and FTJ processing, and this Court’s orders; (2) the distribution list for those materials; and (3) 6 data concerning the number of SAO, FTJ, and other refugees at various stages of processing. 7 Defendants unilaterally narrowed the first request over Plaintiffs’ objections, and then responded 8 to it as they narrowed it. 2 See Keaney Decl. ¶¶ 4-10. Defendants refused to respond to the third 9 request, claiming it would be unduly burdensome and asserting that it should instead be in the form 10 of interrogatories. Id. ¶ 6. Plaintiffs therefore served a set of interrogatories requesting a narrowed 11 universe of the same data; and then another, rewritten set when Defendants objected that 12 responding to several of the first set of interrogatories would also be unduly burdensome. Id. ¶¶ 13 7, 21-26. The parties’ efforts to resolve these disputes themselves is detailed in the attached 14 Declaration of Melissa Keaney. To date, Defendants have produced 808 pages of documents 15 (approximately 25% of which contain only duplicative material), as well as raw data responsive to 16 the interrogatories. Id. ¶¶ 11-12, 28-31. 17 LEGAL STANDARD 18 Under Federal Rule of Civil Procedure 26(b)(1), a party may obtain discovery regarding 19 any nonprivileged matter that is relevant to a claim or defense and “proportional to the needs of 20 the case.” Proportionality “hinges on ‘the importance of the issues at stake . . . , the parties’ 21 relative access to relevant information, the parties’ resources, the importance of the discovery in 22 resolving the issues, and whether the burden or expense of the proposed discovery outweighs its 23 24 25 26 1 Plaintiffs assume the Court’s familiarity with the facts and procedural history of these consolidated cases—see generally Order Granting Prelim. Inj., ECF No. 92 at 5-17; Order Defs.’ Den. Emergency Stay Mot., ECF No. 106 at 2-4; Order Granting Mot. for Disc. & Den. Mot. to Dismiss Without Prejudice, ECF No. 155—and seek here only to highlight those issues most relevant to the instant motion. Unless otherwise noted, all citations are to the docket in Doe v. Trump, C17-0178JLR. 2 27 28 Among other things, Defendants insisted they would not search for records of any White House custodians or of “deliberative materials,” and that they would produce only what they deem “final, formal guidance documents.” Ex. 22 at 11. Notwithstanding Plaintiffs’ timely and continued objections to the scope of their search, Defendants have represented that the information they produced is sufficient for Plaintiffs to assess injunction compliance, see Ex. 31, and that the documents produced “show unequivocally that [Defendants] complied with the injunction,” Ex. 26 at 1. Perkins Coie LLP PLAINTIFFS’ JOINT MOTION TO COMPEL 1201 Third Avenue, Suite 4900 (No. 17-cv-0178-JLR) – 2 Seattle, WA 98101-3099 T: 206.359.8000 / F: 206.359.9000 Case 2:17-cv-00178-JLR Document 166 Filed 10/22/18 Page 4 of 16 1 likely benefit.’” Hancock v. Aetna Life Ins. Co., 321 F.R.D. 383, 390 (W.D. Wash. 2017) (citation 2 omitted). On a motion to compel discovery, “[t]he moving party bears the burden of demonstrating 3 that the information it seeks is relevant and that the responding party’s objections lack merit.” Id. 4 ARGUMENT 5 I. 6 Far from indicating that the case is moot, the limited written-only discovery so far has 7 exposed several areas of concern regarding Defendants’ compliance with this Court’s preliminary 8 injunction. 3 Those concerns, partially detailed below, justify the further limited discovery that 9 Plaintiffs are requesting: leave of the Court to take particular depositions, an order requiring 10 Defendants to respond to the six interrogatories Plaintiffs propounded on October 5, and an 11 accompanying adjustment of the scheduling order. 12 The discovery produced thus far is concerning in several ways. First, it strongly suggests 13 14 15 16 17 18 19 20 21 22 23 that Defendants failed to heed this Court’s admonition that the preliminary injunction required them “to take actions that are necessary to undo those portions of the Agency Memo that are enjoined,” including by “rescind[ing]” and “revers[ing]” the guidance and instructions implementing the enjoined suspensions, and “to restore the status quo prior to the issuance of the Agency Memo with respect to the processing of applications from FTJ refugees and refugees from SAO countries.” ECF No. 106 at 6. In fact, the records seem to confirm that the only steps Defendants took to restore the status quo ante (as opposed to simply ordering the restarting of processing) were the limited measures relating to circuit rides previously noted, see ECF No. 155 at 9 n.13, 27, even though the suspensions were implemented in a variety of other concrete ways that could have been reversed, but seemingly were not. To give one stark example, guidance the United States Citizenship and Immigration 24 25 THE ADDITIONAL DISCOVERY PLAINTIFFS WISH TO TAKE IS TARGETED AT SERIOUS COMPLIANCE CONCERNS IDENTIFIED THUS FAR Service (USCIS) issued on November 9, 2017 instructed its officers that, absent a case-by-case 26 27 28 3 Plaintiffs note that intent is irrelevant to injunction compliance. See Peterson v. Highland Music, Inc., 140 F.3d 1313, 1323 (9th Cir. 1998) (“‘[T]here is no good faith exception to the requirement of obedience to a court order.’” (citation omitted)). Perkins Coie LLP PLAINTIFFS’ JOINT MOTION TO COMPEL 1201 Third Avenue, Suite 4900 (No. 17-cv-0178-JLR) – 3 Seattle, WA 98101-3099 T: 206.359.8000 / F: 206.359.9000 Case 2:17-cv-00178-JLR Document 166 Filed 10/22/18 Page 5 of 16 1 waiver of the SAO suspension, 4 they could not approve for formal refugee status—or “stamp”— 2 cases that that included SAO nationals. Ex. 7 at 2. Emails sent later in November instructed 3 particular USCIS officers who were reviewing refugee applications that were pending in USCIS’ 4 electronic “stamping queue” that when they encountered a case affected by the Agency Memo’s 5 SAO suspension, and in the absence of a waiver, they could not stamp the cases approved, and 6 should instead mark those pending applications, “Unable to Stamp: Evidence documenting a case- 7 by-case determination by DHS and State required for further processing.” See Ex. 8; see also 8 Keaney Decl. ¶ 47. Defendants have produced no documents in which these instructions are 9 reversed, for example, by requiring that all the cases so marked be processed, and where 10 appropriate, stamped. In fact, and inexplicably, the record has two emails sent after the injunction 11 issued that continue to instruct USCIS officers to “hold off on stamping” cases with SAO nationals 12 that are in the digital stamp queue. Exs. 9 & 10; see generally Ex. 38 (summarizing key documents 13 related to injunction compliance and digital stamping). The record is silent as to how many cases 14 were marked “Unable to Stamp,” and how many individuals were in those cases (a case can have 15 multiple individuals); what has happened to those cases since being so marked; or how many of 16 the affected individuals were protected by this Court’s preliminary injunction by virtue of a bona 17 fide relationship with a person or entity in the United States (hereinafter referred to as a “BFR”). 18 The failure to reverse these instructions would be expected to have a particularly long- 19 lasting effect (still felt today) on those SAO nationals whose cases were not stamped—i.e., 20 refugees who were already close to the end of processing, and would have been expected to travel 21 soon after stamping absent the suspensions—given what else the documents reflect: on January 29 22 of this year, Defendants instituted a new de facto SAO suspension, this one targeted at SAO cases 23 that had not yet been stamped approved as of that date. This previously unknown suspension can 24 be traced to the Memorandum that Secretary Nielsen issued on January 29, following the 90-day 25 26 4 27 28 Under the Agency Memo, nationals from (or stateless individuals who last habitually resided in) one of the 11 countries on the SAO list (hereinafter referred to as “SAO nationals”) could be exempted from the suspension if the Department of Homeland Security and the Department of State made “a case-by-case determination that the travel is in the national interest and the individuals do not pose a threat to the security or welfare of the United States.” Ex. 7 at 2. Perkins Coie LLP PLAINTIFFS’ JOINT MOTION TO COMPEL 1201 Third Avenue, Suite 4900 (No. 17-cv-0178-JLR) – 4 Seattle, WA 98101-3099 T: 206.359.8000 / F: 206.359.9000 Case 2:17-cv-00178-JLR Document 166 Filed 10/22/18 Page 6 of 16 1 review called for by the Agency Memo. In it, Secretary Nielsen directs USCIS to “[d]etermine 2 which SAO nationals who have already undergone a USCIS interview will require a re-interview 3 in light of [particular] modifications” to screening of SAO nationals adopted after the 90-day 4 review that concluded on January 22. ECF No. 142-2 at 3. 5 The re-review does not apply to SAO 5 cases previously stamped approved, see Ex. 11 at 3 n.2—which makes the post-injunction failure 6 to reverse the instructions not to stamp SAO cases particularly consequential for those affected. 7 Notwithstanding Secretary Nielsen’s instruction that USCIS finish the re-review prior to 8 April 1, the Refugee Affairs Division (RAD) did not announce the procedures for the re-review 9 (which RAD dubbed the “Pipeline DHS Review,” or “PDR”) until April 2. Ex. 12. The PDR also 10 expanded the review called for by the Nielsen and Higgins memoranda of January 29, to consider 11 not just the impact of the changes to SAO processing made by the 90-day review (as the 12 memoranda directed), but also those made by the Agency Memo, which followed the earlier 120- 13 day review ordered by EO-2. Id. at 2. And whereas the Nielsen and Higgins memoranda ordered 14 a review of cases interviewed prior to January 29, the PDR moved that date to April 1. 6 Id. at 1. 15 Each SAO case that meets the PDR criteria is frozen until it has been cleared, which only RAD 16 headquarters can do. Id. at 2. Plaintiffs’ counsel does not know how many SAO cases meet these 17 criteria (on which the record is silent), but they believe it to be in the tens of thousands, and that it 18 includes individual Plaintiffs whose cases still have not yet gone through the PDR. Defendants 19 have produced no records indicating whether PDR is proceeding and how many cases are being 20 processed, but the sum effects of these actions is to manufacture a bottleneck that has a particularly 21 pernicious effect on refugees who were protected by this Court’s preliminary injunction. 22 As another example, the written discovery has failed to resolve questions about 23 Defendants’ compliance with the injunction with regard to requesting and completing SAO checks. 24 25 26 27 28 5 That same day, Jennifer Higgins, the Associate Director of the Refugee, Asylum, and International Operations (RAIO) Directorate at USCIS, directed the Refugee Affairs Division (RAD) to “immediately institute a process and issue guidance to evaluate whether . . . . cases already interviewed by a USCIS officer but that are pending final approval[] involving SAO nationals require a re-interview in light of” the new protocols adopted after the 90-day review. Ex. 11 at 3 (footnote omitted). 6 At least some SAO nationals interviewed between January 29 and April 1 were interviewed under the protection of this Court’s injunction, and thus one effect of moving that date was to negate at least some of the benefit (in processing time) that those individuals enjoyed thereunder. Perkins Coie LLP PLAINTIFFS’ JOINT MOTION TO COMPEL 1201 Third Avenue, Suite 4900 (No. 17-cv-0178-JLR) – 5 Seattle, WA 98101-3099 T: 206.359.8000 / F: 206.359.9000 Case 2:17-cv-00178-JLR Document 166 Filed 10/22/18 Page 7 of 16 1 During the Agency Memo’s SAO suspension, Defendants instructed Resettlement Support Centers 2 (RSCs) not to request any SAO checks. 7 Even after the preliminary injunction issued, the SAO 3 checks (fewer than 40 total) were apparently done manually. See Ingraham Decl., ECF No. 120- 4 1 ¶ 8. Notwithstanding its dramatic consequences on SAO (and FTJ) nationals, Defendants 5 produced no documents about this manual process or their decision to use it. 6 Defendants have produced limited information about their previously-undisclosed post-injunction 7 decision to impose a monthly quota on the number of SAO checks that RSCs can request: the 8 quotas were announced in an email sent on February 2, 2018, Ex. 13 at 2, and while the global 9 monthly quota was set initially at 2,010 (allocated amongst seven RSCs 8), id., that number was cut 10 Moreover, to just 500 (total, worldwide) on April 30. Ex. 14 at 2. 11 Second, the discovery thus far also suggests that Defendants may have exaggerated the 12 pace and scope of their injunction compliance. For example, while Defendants gave timely notice 13 of the injunction to the RSCs, 9 the record suggests that they could not actually restart processing 14 SAO cases protected by the injunction until at least January 11—nearly three weeks after the 15 injunction issued—because it took the State Department that long to make the requisite changes 16 to the Worldwide Refugee Admissions Processing System. Ex. 17 at 1. The record is silent as to 17 whether the State Department considered or attempted restoring the BFR information that was 18 collected and verified when the BFR was first made relevant, by the Supreme Court’s partial stay 19 of Hawaii’s preliminary injunction of the refugee ban in EO-2. These documents reveal the need 20 to more closely examine what Defendants meant when they represented that the RSCs “processed” 21 cases “in accordance with the injunction, as of the next business day following th[e] injunction,” 22 ECF No. 142 at 5; see also ECF No. 114 at 2-3; Gauger Decl., ECF No. 114-1 ¶ 2. Gauger Decl., 23 24 25 26 27 28 7 Defendants’ responses to the interrogatories also reflect that, from October 24, 2017 until at least August 18, 2018, no SAO checks were requested at all for FTJ refugees outside of the RSCs in Kenya and Thailand, which is difficult to explain. 8 RSC Cuba and RSC Latin America were not given a maximum number of SAOs they could request, either in February or April, presumably because they request relatively few. 9 On December 24, 2017, the State Department emailed the RSCs to say that the agency “is aware” of the injunction and that “[t]he RSCs will resume processing of these refugees.” Ex. 15. Four days later, the State Department sent an email explaining the scope of the Court’s injunction and informing RSCs that the agency “is in the process of adding the BFR status back into [the Worldwide Refugee Admissions Processing System].” Ex. 16. Perkins Coie LLP PLAINTIFFS’ JOINT MOTION TO COMPEL 1201 Third Avenue, Suite 4900 (No. 17-cv-0178-JLR) – 6 Seattle, WA 98101-3099 T: 206.359.8000 / F: 206.359.9000 Case 2:17-cv-00178-JLR Document 166 Filed 10/22/18 Page 8 of 16 1 ECF No. 142-1 ¶ 5; and what steps they took to ensure that full processing restarted promptly. 2 Even Defendants’ compliance efforts relating to circuit rides appear to have been more 3 limited than their representations to this Court suggested. Defendants stated that, to comply with 4 the injunction, “on December 26, 2017, the State Department reached out to the RSCs to inquire 5 whether any SAO nationals might be ready for interviews at locations already included on the 6 second-quarter calendar.” ECF No. 114 at 3. 10 But, per the documents produced thus far, the State 7 Department instead sought “compelling expedite cases of SAO nationals that should be 8 interviewed due to protection/medical issues,” Ex. 18 at 1—a far narrower universe than “any 9 SAO nationals” ready for interview. That undisclosed narrowing, moreover, did not track this 10 Court’s injunction, which protected all SAO nationals with a BFR; instead, it seemingly tracked 11 the criteria Defendants used to determine who would get a waiver from the SAO suspension. See 12 Ingraham Decl., ECF No. 120-1 ¶ 5 (explaining that cases considered for case-by-case waivers of 13 the SAO suspension “generally involved refugees who required emergency medical treatment in 14 the United States or who faced serious threats to their safety in the host country”). In other words, 15 based on the current record, it appears that Defendants’ addition of SAO nationals to the second 16 quarter circuit ride schedule was in fact done in accordance with the Agency Memo, rather than 17 this Court’s preliminary injunction thereof. 11 18 The paper discovery raises still more questions about the effects of the injunction. For 19 example, Defendants explained in their December 29 Emergency Stay Motion that, pre-injunction, 20 they had scheduled second-quarter circuit ride interviews of some SAO nationals who “met the 21 [Agency Memo’s] criteria for continued, case-by-case processing during the 90-day review.” ECF 22 No. 95 at 6 n.3. Yet, oddly, when the RSCs were finally able to implement the injunction on 23 January 11, they were instructed to “immediately reach out to all SAO nationality cases scheduled 24 for interview in Q2 [quarter two] to confirm whether they have a BFR,” Ex. 17, which not only 25 26 27 28 10 See also Gauger Decl., ECF No. 114-1 ¶ 5 (same, and explaining that this action was done to implement the preliminary injunction); Higgins Decl., ECF No, 114-2 ¶ 5 (same); Higgins Decl., ECF No. 142-2 ¶ 3 (same). 11 Plaintiffs flagged the apparent discrepancy for Defendants’ counsel, who stated that the December 24, 2017 email in the record “obviously reflects the Court’s preliminary injunction Order,” and that speculated that there could have been “further communications pursuant to [it].” Ex. 37 at 1. Perkins Coie LLP PLAINTIFFS’ JOINT MOTION TO COMPEL 1201 Third Avenue, Suite 4900 (No. 17-cv-0178-JLR) – 7 Seattle, WA 98101-3099 T: 206.359.8000 / F: 206.359.9000 Case 2:17-cv-00178-JLR Document 166 Filed 10/22/18 Page 9 of 16 1 should have been unnecessary, given that they had reportedly received waivers of the suspension, 2 but also implies that Defendants’ implementation of the injunction may have resulted in SAO 3 nationals without BFRs being removed from the circuit ride schedule. 12 4 Finally, the data Defendants produced in response to the interrogatories reveals a shocking 5 lack of movement in SAO and FTJ cases even after this Court’s injunction issued. See generally 6 Youssef Decl. For example, in fiscal years 2016 and 2017, refugees from SAO countries 7 comprised 43.5 percent of USRAP admissions, see ECF No. 155 at 13, but between December 23, 8 2017 and August 25, 2018, less than 1 percent of the refugees admitted to the United States were 9 from SAO countries. 13 See id. ¶ 10, Chart B. Beyond the disturbing overarching picture painted 10 by the data, it presents riddles as well. For example, Defendants’ interrogatory responses reveal 11 that, on the date the Agency Memo issued, 11 FTJ refugees and 231 SAO refugees were ‘ready 12 for departure’ (to the United States), yet of those individuals, only 4 FTJ refugees and 93 SAO 13 refugees have been admitted as of September 24, 2018. See id. ¶¶ 14-15 & Chart C. Given the 14 Court’s instruction that Defendants restore the status quo, one would have expected all refugees 15 ready to travel to the United States one year ago would have been admitted by now. 16 After discovering these and other puzzles in the documents and data produced, Plaintiffs 17 requested additional discovery from Defendants, in two forms. First, on October 5, 2018, Plaintiffs 18 served a set of six interrogatories, the first five of which requested information about the stamping 19 issue discussed above, and the sixth information on waivers. See Ex. 1. Plaintiffs requested that 20 Defendants respond by the current October 25, 2018 deadline for the completion of discovery. 21 Defendants subsequently informed Plaintiffs that they would not respond to the interrogatories 22 because they were not served at least 30 days before the discovery deadline, which they would not 23 agree to extend, based in part on their view that the discovery produced to date “should equip 24 Plaintiffs to assess their case in light of our forthcoming renewed Rule 12(b)(1) motion.” Ex. 31. 25 26 27 28 12 Further deepening this mystery is that, by letter dated September 4, 2018, USCIS Director L. Francis Cissna reported to Members of Congress that not a single waiver was issued under the Agency Memo. Ex. 19. 13 According to data publicly available on wrapsnet.org, in fiscal year 2018, the number of refugees admitted to the United States (22,491) was the lowest ever since passage of the Refugee Act of 1980. More than 71 percent of those admitted were Christian, and less than 16 percent were Muslim. In the two prior fiscal years, the ratio of Christian to Muslim refugees was roughly equally, with each group comprising 40 to 45 percent of admitted refugees. Perkins Coie LLP PLAINTIFFS’ JOINT MOTION TO COMPEL 1201 Third Avenue, Suite 4900 (No. 17-cv-0178-JLR) – 8 Seattle, WA 98101-3099 T: 206.359.8000 / F: 206.359.9000 Case 2:17-cv-00178-JLR Document 166 Filed 10/22/18 Page 10 of 16 1 Second, Plaintiffs informed Defendants that they wanted to take the depositions of the two 2 individuals who have submitted multiple declarations on Defendants’ injunction compliance, 3 Jennifer Higgins 14 and Kelly Gauger, 15 as well as a Rule 30(b)(6) deposition directed at USCIS 4 and another directed at the Department of State, see Ex. 2 (proposed 30(b)(6) notices), and asked 5 Defendants if they would be willing to produce the deponents voluntarily. Defendants’ counsel 6 objected to the depositions on proportionality grounds, and also complained that Plaintiffs did not 7 articulate the “specific questions” they continue to have. See Exs. 19 & 35. 8 In light of the various issues presented by the discovery already produced, the additional 9 discovery Plaintiffs have requested is amply justified, proportional to the needs of the case, and 10 necessary to resolving the various questions that remain outstanding. As the record reflects, 11 Plaintiffs have been judicious in the discovery they have sought from Defendants and have 12 consistently worked cooperatively with Defendants’ counsel to reduce the burdens associated with 13 discovery, including by re-writing discovery requests to accommodate burden objections and 14 agreeing to Defendants’ requests for additional time to respond. See Keaney Decl. ¶¶ 7, 21-26. 15 These additional discovery requests, moreover, are based on information only recently obtained 16 from Defendants; prior to this discovery period, Plaintiffs had only vague and limited information 17 about the steps Defendants took to implement and undo the SAO and FTJ suspensions, accord 18 ECF No. 155 at 27, and so virtually everything Defendants have produced has been wholly new 19 information. When Plaintiffs’ counsel received the documents and data, they diligently processed 20 it as expeditiously as possible and requested the additional discovery as soon as was reasonably 21 practicable, and thus, there is good cause for extending the discovery deadline to accommodate 22 this additional discovery. See Wealth by Health, Inc. v. Ericson, No. C09-1444JLR, 2010 WL 23 11566111, at *3 (W.D. Wash. July 12, 2010) (explaining “the focus of the inquiry” of whether to 24 modify scheduling order “is upon the moving party’s reasons for seeking modification”). 25 26 27 28 14 As noted above, Jennifer Higgins is the Associate Director of the Refugee, Asylum, And International Operations (RAIO) Directorate at USCIS. Defendants have submitted three declarations from Associate Director Higgins in this litigation, the latter two concerning injunction compliance. See ECF No. 51-1; ECF No. 114-2; ECF No. 142-2. 15 Kelly Gauger is the Acting Director of the Admissions Office of the Bureau of Population, Refugees, and Migration (PRM/A) of the Department of State. Defendants have submitted two declarations from Acting Director Gauger, both concerning injunction compliance. ECF No. 114-1; ECF No. 142-1. Perkins Coie LLP PLAINTIFFS’ JOINT MOTION TO COMPEL 1201 Third Avenue, Suite 4900 (No. 17-cv-0178-JLR) – 9 Seattle, WA 98101-3099 T: 206.359.8000 / F: 206.359.9000 Case 2:17-cv-00178-JLR Document 166 Filed 10/22/18 Page 11 of 16 1 Plaintiffs have described above how the interrogatories are targeted at compliance issues 2 identified in the document production, and the same is true of the Rule 30(b)(6) depositions: the 3 notices (which are identical, save for the agency to which each is directed) propose to question the 4 person(s) most knowledgeable about the specifically listed, concrete steps taken to implement the 5 SAO and FTJ suspensions; the actions taken to undo those specific steps (if any); two actions that 6 have exacerbated any non-compliance (the PDR and the SAO quotas, described above); and a 7 change to FTJ processing made by the Agency Memo that may help shed light on why so few FTJ 8 refugees have been admitted post-injunction. Finally, Defendants have repeatedly represented that 9 Associate Director Higgins and Acting Director Gauger have personal knowledge of their efforts 10 to comply with the injunction, and have used their multiple declarations to try to carry their burden 11 of proving that this case is moot, see, e.g., Defs.’ Mot. to Dismiss, ECF No. 145 at 11-12, and will 12 presumably do so again. Plaintiffs wish to question Defendants’ declarants about their statements, 13 which is abundantly supported by the case law. 16 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. DEFENDANTS HAVE FAILED TO JUSTIFY THEIR DECISIONS TO REDACT AND WITHHOLD INFORMATION In addition to the foregoing, Plaintiffs seek to compel Defendants to produce two types of information that they have thus far redacted and/or withheld entirely. 1. SAO countries. First, Plaintiffs challenge Defendants’ claim that they can redact from the documents any information that would tend to reveal the names of any of the 11 countries on the SAO list. Defendants assert that this information is privileged as “law enforcement sensitive,” and that revealing it “could compromise the agencies’ law enforcement missions, as applicants might not provide information or answer questions evasively” if the information were revealed. See Ex. 3 (privilege log). As the Court has noted, there is no binding precedent recognizing this privilege. See ECF No. 155 at 28 n.23. But even assuming the privilege exists, 16 See, e.g., Dibb v. Allianceone Receivables Mgmt., Inc., No. 14-5835 RJB, 2015 WL 9690313, at *1-3 (W.D. Wash. Oct. 19, 2015) (denying motion to quash subpoenas seeking to depose witnesses who had given substantive declarations in support of opposing party); Palmer v. Stassinos, No. C. 04 03026 RMW (RS), 2006 WL 2411413, at *1 (N.D. Cal. Aug. 18, 2006) (granting motion to compel, and explaining that “Plaintiffs are not required to accept the information as provided in the crafted form of a declaration, but have the right to test [those statements] at deposition”); see also United States v. Cty. of Los Angeles, No. CV 15-05903 DPP (JEMx), 2016 WL 4059712, at *4 (C.D. Cal. July 27, 2016) (rejecting argument that high-ranking government official should not be deposed under the “apex” doctrine, where the official voluntarily discussed the matter with an attorney in the case). Perkins Coie LLP PLAINTIFFS’ JOINT MOTION TO COMPEL 1201 Third Avenue, Suite 4900 (No. 17-cv-0178-JLR) – 10 Seattle, WA 98101-3099 T: 206.359.8000 / F: 206.359.9000 Case 2:17-cv-00178-JLR Document 166 Filed 10/22/18 Page 12 of 16 1 and that the government can meet the procedural requirements to invoke it, 17 it fails on its merits, 2 for the simple reason that the identities of the 11 countries are already publicly known. In addition 3 to being widely reported in the media, 18 the names of the countries are contained in the both 4 complaints filed in these consolidated cases, Doe, ECF No. 42 ¶ 215; JFS, ECF No. 1 ¶ 103; as 5 well as this Court’s preliminary injunction opinion, ECF No. 92 at 10, which notes that, at oral 6 argument, Defendants’ counsel conceded that the Court could “‘rely on Plaintiffs’ allegations’” 7 regarding which countries are on that list, id. at 10 n.6. Defendants’ suggestion that their law 8 enforcement missions would be compromised by revealing this information does not withstand 9 scrutiny. See, e.g., BuzzFeed, Inc. v. U.S. Dep’t of Justice, 318 F. Supp. 3d 347, 364 (D.D.C. 2018) 10 (rejecting law enforcement privilege claim where amount of information “already in the public 11 domain” meant any threat posed by disclosure was “minimal”); Doe v. City of Phoenix, No. CV– 12 07–1901–PHX–GMS, 2009 WL 166925, at *2 (D. Ariz. Jan. 26, 2009) (rejecting law enforcement 13 privilege claim where “no significant information in the documents” was “not already known to 14 the parties,” including because of the litigation itself). Redacting this information in the current 15 context is even less justified, as it handicaps Plaintiffs’ ability to assess compliance with the 16 preliminary injunction of a nationality-based suspension of refugee processing, by obscuring how 17 particular refugees of those nationalities have been treated. See Wagafe, 2017 WL 5990134, at *2 18 (noting that even where it applies, the privilege is qualified, and can be outweighed by the need 19 for the information). 20 2. Allegedly “non-responsive” information. Plaintiffs also challenge Defendants’ 21 decision to unilaterally deem information about individual refugees as “non-responsive” to 22 Plaintiffs’ document request, and to redact or withhold information on that basis, even when that 23 24 17 25 26 27 28 See Wagafe v. Trump, No. C17-94 RAJ, 2017 WL 5990134, at *2 (W.D. Wash. Oct. 19, 2017) (“To claim this privilege, the Government must satisfy three requirements: (1) there must be a formal claim of privilege by the head of the department having control over the requested information; (2) assertion of the privilege must be based on actual personal consideration by that official; and (3) the information for which the privilege is claimed must be specified, with an explanation why it properly falls within the scope of the privilege.”). 18 See, e.g., Yeganeh Torbati & Mica Rosenberg, Under Trump Plan, Refugees from 11 Countries Face Additional U.S. Barriers, Reuters (Oct. 24, 2017), http://reut.rs/2gRvoDh; Sabrina Siddiqui, Trump Ends Refugee Ban With Order to Review Program For 11 Countries, The Guardian (Oct. 24, 2017), http://bit.ly/2llufW9; Ted Hesson, Trump Targets 11 Nations in Refugee Order, Politico (Oct. 24, 2017), http://politi.co/2gJQ5NW. Perkins Coie LLP PLAINTIFFS’ JOINT MOTION TO COMPEL 1201 Third Avenue, Suite 4900 (No. 17-cv-0178-JLR) – 11 Seattle, WA 98101-3099 T: 206.359.8000 / F: 206.359.9000 Case 2:17-cv-00178-JLR Document 166 Filed 10/22/18 Page 13 of 16 1 information unquestionably is responsive—such as when it is contained in an attachment to an 2 email that Defendants produced. See Ex. 4 at 5 (instructing that attachments to responsive 3 documents shall be produced). Defendants have aggressively redacted this information, even 4 when it is not personally identifiable (like the “citizenship” column of a spreadsheet). Plaintiffs 5 are sensitive to any privacy concerns, but their repeated offers to enter into a protective order 6 covering the information—which is needed to determine who exactly has been hurt by any non- 7 compliance—have been ignored. With such an order in place, Defendants have no reason for 8 withholding this information. See, e.g., United States v. McGraw-Hill Cos., Inc., No. CV 13-0779- 9 DOC (JCGx), 2014 WL 8662657, at *4-5 (C.D. Cal. Sept. 25, 2014); Franco-Gonzalez v. Holder, 10 11 No. CV 10-2211-DMG (DTBx), 2013 WL 8116823, at *4-5 (C.D. Cal. May 3, 2013). 3. Allegedly “non-responsive” documents. Finally, Defendants have improperly 12 withheld as “non-responsive” several policy manuals and/or guidance documents that are either 13 attached to emails they have produced; hyperlinked in emails they have produced; or otherwise 14 expressly incorporated in documents implementing either the Agency Memo or the preliminary 15 injunction thereof. See, e.g., Keaney Decl. ¶¶ 18, 48; Exs. 8, 27 at 2-3. Given the express 16 incorporation and Plaintiffs’ need for referenced documents to fully understand the instructions 17 given to the officers, Plaintiffs do not believe Defendants’ claims of non-responsiveness are 18 justified and request that they be compelled to produce these documents. Alternatively, if the 19 Court would prefer not to reach this issue on the current posture, but enters an order extending the 20 discovery period, Plaintiffs will simply send a new request for these documents. 21 22 23 CONCLUSION Plaintiffs respectfully request that the Court grant their motion to compel and enter the enclosed proposed order. 24 25 26 27 28 PLAINTIFFS’ JOINT MOTION TO COMPEL (No. 17-cv-0178-JLR) – 12 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 T: 206.359.8000 / F: 206.359.9000 Case 2:17-cv-00178-JLR Document 166 Filed 10/22/18 Page 14 of 16 1 Respectfully submitted, 2 s/ Justin B. Cox Linda Evarts, Pro Hac Vice Mariko Hirose, Pro Hac Vice Kathryn C. Meyer, Pro Hac Vice Deepa Alagesan, Pro Hac Vice International Refugee Assistance Project 40 Rector Street, 9th Floor New York, NY 10006 Tel: (646) 459-3044 levarts@refugeerights.org mhirose@refugeerights.org kmeyer@refugeerights.org dalagesan@refugeerights.org 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 David Burman, WSBA No. 10611 Lauren Watts Staniar, WSBA No. 48741 Tyler Roberts, WSBA No. 52688 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 dburman@perkinscoie.com lstaniar@perkinscoie.com troberts@perkinscoie.com Elizabeth Sweet, Pro Hac Vice Mark Hetfield, Pro Hac Vice HIAS, Inc. 1300 Spring Street, Suite 500 Silver Spring, MD 20910 Tel: 301-844-7300 liz.sweet@hias.org mark.hetfield@hias.org DATED: October 22, 2018 Justin B. Cox, Pro Hac Vice International Refugee Assistance Project PO Box 170208 Atlanta, GA 30317 Tel: (678) 404-9119 jcox@refugeerights.org Karen C. Tumlin, Pro Hac Vice Melissa S. Keaney, Pro Hac Vice Esther H. Sung, Pro Hac Vice National Immigration Law Center 3450 Wilshire Blvd, #108-62 Los Angeles, CA 90010 Tel: (213) 639-3900 Fax: (213) 639-3911 tumlin@nilc.org keaney@nilc.org sung@nilc.org Lauren E. Aguiar, Pro Hac Vice Mollie M. Kornreich, Pro Hac Vice Abigail E. Davis, Pro Hac Vice Four Times Square New York, NY 10036 Tel: (212) 735-3000 Fax: (212) 735-2000 lauren.aguiar@probonolaw.com mollie.kornreich@probonolaw.com abigail.sheehan@probonolaw.com Counsel for Plaintiffs Jewish Family Service, et al. 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ JOINT MOTION TO COMPEL (No. 17-cv-0178-JLR) – 1 141657978.2 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 T: 206.359.8000 / F: 206.359.9000 Case 2:17-cv-00178-JLR Document 166 Filed 10/22/18 Page 15 of 16 1 2 3 4 5 6 7 8 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION By: /s/ Emily Chiang /s/ Lisa Nowlin Emily Chiang, WSBA # 50517 Lisa Nowlin, WSBA # 51512 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Email: echiang@aclu-wa.org lnowlin@aclu-wa.org Counsel for Plaintiffs Doe, et al. 9 10 11 12 KELLER ROHRBACK L.L.P. By: /s/ Lynn Lincoln Sarko By: /s/ Tana Lin By: /s/ Amy Williams-Derry By: /s/ Derek W. Loeser By: /s/ Alison S. Gaffney Lynn Lincoln Sarko, WSBA # 16569 Tana Lin, WSBA # 35271 Amy Williams-Derry, WSBA # 28711 Derek W. Loeser, WSBA # 24274 Alison S. Gaffney, WSBA # 45565 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 Email: lsarko@kellerrohrback.com tlin@kellerrohrback.com awilliams-derry@kellerrohrback.com dloeser@kellerrohrback.com agaffney@kellerrohrback.com By: /s/ Laurie B. Ashton Laurie B. Ashton (admitted pro hac vice) 3101 North Central Avenue, Suite 1400 Phoenix, AZ 85012-2600 Telephone: (602) 248-0088 Facsimile: (602) 248-2822 Email: lashton@kellerrohrback.com 13 14 15 16 By: /s/ Alison Chase Alison Chase (admitted pro hac vice) 1129 State Street, Suite 8 Santa Barbara, CA 93101 Telephone: (805) 456-1496 Facsimile: (805) 456-1497 Email: achase@kellerrohrback.com 17 18 19 20 Attorneys for Plaintiffs Doe, et al./Cooperating Attorneys for the American Civil Liberties Union of Washington Foundation 21 22 23 24 25 26 27 28 PLAINTIFFS’ JOINT MOTION TO COMPEL (No. 17-cv-0178-JLR) – 2 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 T: 206.359.8000 / F: 206.359.9000 Case 2:17-cv-00178-JLR Document 166 Filed 10/22/18 Page 16 of 16 1 2 CERTIFICATE OF SERVICE I hereby certify that on October 22, 2018, I caused to be electronically filed the foregoing 3 document with the Clerk of the Court using the CM/ECF system which will send notification of 4 such filing to all of the registered CM/ECF users for this case. 5 DATED this 22th day of October, 2018. 6 /s/ Tyler Roberts 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE (No. 17-cv-0178-JLR) – 1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 T: 206.359.8000 / F: 206.359.9000