Doe 1 v. McAleenan

Background

Plaintiffs brought an action under the Administrative Procedure Act concerning alleged changes to the Lautenberg-Specter program for processing refugee applications of Iranian religious minorities. The court allowed jurisdictional discovery about the nature of the agency action.

One discovery document, DEF-1931, was a blank spreadsheet template with headings reflecting information considered in the security-vetting process and rows labeled with unique numbers. Defendants initially produced it without redactions, although agency counsel had identified redactions for law-enforcement-privilege material. Defendants later sought to claw back the document, meaning they demanded its return or removal because they claimed it contained protected information.

Plaintiffs argued that defendants had waived any privilege by failing to act promptly after the document was produced, discussed with counsel, described in a discovery-dispute letter, and discussed in open court. Defendants argued that the document had been inadvertently produced, that their privilege position was substantially justified, and that sanctions would be unjust.

Monetary Sanctions

The court concluded that defendants waived any privilege claim concerning DEF-1931 under the circumstances. It found that defendants did not act carefully or diligently when identifying privileged material and did not promptly take reasonable steps to correct the disclosure after the document’s importance was brought to their attention.

The court held that an award of reasonable attorneys’ fees and costs was required under Federal Rule of Civil Procedure 37(a)(5)(A). Defendants agreed to produce an unredacted version only after plaintiffs filed the motion to compel, and the court found that defendants’ delayed privilege assertion was not substantially justified. The court therefore granted plaintiffs’ request for monetary sanctions on that ground.

Plaintiffs requested $41,546.52, but the court did not set the final amount in this order. Plaintiffs were directed to submit billing records for private court review, unless the parties agreed on the amount. The court also declined to impose sanctions under its inherent authority because the conduct did not amount to bad faith.

Sanctions Against Counsel

The court found that defendants’ counsel had unnecessarily increased the proceedings concerning DEF-1931 and that the conduct appeared to be part of a broader pattern of clawback demands. However, the court concluded that the conduct did not reach the level of recklessness or bad faith required for personal monetary sanctions under 28 U.S.C. § 1927. It therefore declined to hold defendants’ counsel personally responsible for monetary sanctions at that time.

Future Clawback Procedures

The court modified the procedures for future claims that a document was inadvertently produced with privileged information. Defendants must first provide plaintiffs with the document’s Bates number. Plaintiffs must then treat the document as highly confidential and not publicly disclose it while the court considers whether it may be clawed back.

If the court permits the clawback, plaintiffs must sequester or delete the document as required by the protective order. If the court does not permit the clawback, the document returns to its prior confidentiality status unless the parties agree or the court orders otherwise. The parties may submit a different agreed procedure for court approval and may bring clawback disputes through the court’s discovery-dispute process.

Disposition

The order states that plaintiffs’ motion for sanctions was “granted in part and denied in part.” Plaintiffs are entitled to attorneys’ fees and costs under Rule 37(a)(5)(A), with the amount to be determined after further submissions or an agreement between the parties. The court also imposed the stated procedures for future clawback requests.