Doe 1 v. McAleenan

Background

The parties disputed defendants’ designations of discovery materials as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” (HC-AEO) under the amended protective order. The plaintiffs challenged designations covering approximately 90 excerpts from depositions of two defense witnesses and documents listed in the parties’ index. The court stated that the parties had completed jurisdictional discovery except for this dispute.

Under the protective order, confidential materials could be shared with an opposing party but not with the public. HC-AEO materials could not be shared with either an opposing party or the public, and could be used only under the order’s specified restrictions. The court reviewed the disputed materials and deposition testimony privately and held a hearing.

Legal standard

Discovery materials are generally accessible, but a court may restrict their use or disclosure for good cause. Defendants, as the parties opposing disclosure, had to show particularized harm—specific harm tied to the material, rather than general assertions. If defendants made that showing, the court weighed their interests against public and private interests favoring disclosure.

Documents

The court agreed that revealing operational details of particular refugee-vetting techniques could compromise those techniques and cause harm to law-enforcement or national-security interests. It sustained the designations for materials containing such details, including the items identified in Appendix A as “Designation sustained.”

The court rejected HC-AEO protection for materials that referred to vetting techniques or agency processes only at a high level, because defendants had not shown particularized harm. The court also rejected HC-AEO protection for high-level discussions of aggregate, anonymized vetting results.

For case-specific results, the court found good cause to prevent disclosure of specific refugee applicants’ vetting results to the plaintiffs or the public. However, for DEF-01916, which contained detailed results specific to each applicant, the court concluded that defendants’ extended prior disclosure of the document was inconsistent with keeping it from the plaintiffs. The court therefore rejected the HC-AEO designation for DEF-01916 but allowed defendants to designate it Confidential and prevent disclosure to the public during discovery.

The court also rejected the HC-AEO designations for defendants’ written and supplemental responses to Interrogatories Nos. 13 and 14 because the protected text consisted of objections, legal arguments, or statements that defendants had no responsive information, and defendants had not shown particularized harm.

Deposition testimony

The court applied the same analysis to disputed portions of the depositions of Hilary Ingraham and Joanna Ruppel. It noted that testimony could contain more detailed information than the document discussed during the testimony. As a result, some testimony could properly remain HC-AEO even when the related document was not given that designation. The item-by-item decisions were recorded in Appendices B and C.

Disposition

Judge Virginia K. Demarchi concluded that the court sustained some of defendants’ confidentiality designations and rejected others. Defendants were ordered to promptly re-designate and reproduce to the plaintiffs the documents and transcripts for which the designations were found unwarranted.