National TPS Alliance v. Noem

Background

The government sought relief from a June 6, 2025 discovery order issued by Magistrate Judge Kim. The discovery dispute involved documents withheld under the deliberative-process privilege, a qualified privilege that may protect government materials prepared while an agency is developing a position. The plaintiffs argued that their need for the materials and the need for accurate fact-finding outweighed the government’s interest in keeping them undisclosed.

Under 28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a), the district court reviewed the magistrate judge’s nondispositive pretrial order for clear error or a ruling contrary to law. A ruling is clearly erroneous only when the reviewing judge has a definite and firm conviction that a mistake was made.

The Government’s Arguments

The government asserted five errors by Judge Kim:

1. It argued that Judge Kim should have conducted a document-by-document review of the materials covered by the privilege. The court noted that the government had not requested that approach or argued that the bellwether, or representative-sample, method was improper. The government also had not shown that the sampled documents were unrepresentative or that the remaining documents required a materially different analysis.

2. The government argued that Judge Kim improperly placed the burden on the government to explain why the privilege should not be overcome. The court found that this reading took Judge Kim’s statement out of context. According to the court, Judge Kim recognized that the plaintiffs had clearly explained their need for the materials while the defendants had not provided a sufficient response.

3. The government contended that Judge Kim disregarded the proportionality requirement in Rule 26(b)(1) and treated the potential chilling effect of disclosure too casually. The court rejected that argument, noting that the discovery had limits on its time period and the number of custodians, and that the dispute involved several hundred documents rather than thousands. The court also stated that chilling effect informed whether the privilege should be overcome by the plaintiffs’ need, rather than forming part of the proportionality analysis under Rule 26(b)(2). It found the government’s showing of chilling effect to be boilerplate and unsupported.

4. The government argued that the discovery’s relevance analysis improperly focused on racial animus because the plaintiffs’ recently filed summary-judgment motion sought relief on their claims under the Administrative Procedure Act rather than their equal-protection claims. The court found that the equal-protection claims remained in the case and were subject to final adjudication. It also found that evidence of racial animus could be relevant to the Administrative Procedure Act claims because it could support an argument that the challenged decisions rested on pretext rather than fair-minded policy considerations.

5. The government again argued that discovery should not proceed while jurisdictional issues were pending before the Ninth Circuit and the Supreme Court. The court stated that it had already rejected that argument.

Ruling

Judge Chen found no clear error or ruling contrary to law in Judge Kim’s discovery order. The court also noted that some documents might have been treated generously as privileged, including documents that appeared factual or potentially were not prepared before, or to help formulate, an agency decision. The court did not alter the discovery order on that basis.

The court denied the government’s motion for relief. The order disposed of Docket No. 187.