National Urban League v. Ross

Background

The plaintiffs filed the lawsuit on August 18, 2020. The defendants had argued that their revised plan for processing the 2020 Census was necessary to meet statutory deadlines concerning congressional apportionment and state redistricting. After the court issued an injunction concerning that plan, the Supreme Court stayed the injunction.

The plaintiffs then sought expedited discovery on their claim under the Constitution's Enumeration Clause. The district court established an expedited and limited discovery schedule, including shorter response times and limits on depositions, interrogatories, requests for admission, and requests for production.

The plaintiffs later argued that the defendants' document production was inadequate. The opinion states that the defendants had produced 691 documents, including duplicates and calendar invitations without substantive information, and had not included customary metadata such as authors, dates, file names, and recipients. The plaintiffs moved to compel production. On December 10, 2020, the court granted that motion and ordered production of, among other things, documents showing the Census Bureau's current data-processing plans, procedures, and schedule, as well as documents responsive to a November 19, 2020 letter from the House Committee on Oversight and Reform to Secretary Wilbur L. Ross.

Motion for Reconsideration

The defendants sought permission to file an emergency motion for reconsideration of those two directives or, alternatively, requested a protective order giving them two additional weeks to review documents for attorney-client, work-product, and executive privilege. The defendants did not seek reconsideration of the other requirements in the December 10 order and conceded that they would comply with those requirements.

The court denied reconsideration. It gave four reasons. First, the defendants' conduct had contributed to the compressed schedule, and the December 31, 2020 deadline that they had originally cited was no longer a deadline they could meet. Second, when the court set the schedule, the defendants had not claimed that the discovery period was too short for privilege review. Third, the defendants had not raised the privilege-review timing issue when opposing the motion to compel and therefore had forfeited that argument for reconsideration. Fourth, the defendants had known for nearly five months that the documents were needed but had not begun keyword searches for potentially privileged material until December 11, 2020, after the court issued the order to compel.

Clarification and Disposition

The court DENIED the defendants' request for reconsideration and CLARIFIED the order to compel. By December 14, 2020, the parties had to meet and confer and file a joint statement proposing an expedited schedule for producing a privilege log and briefing privilege disputes. The parties had to prioritize high-priority objections and meet and confer before briefing disputes. A three-judge panel of United States Magistrate Judges would decide the privilege disputes privately after reviewing the parties' submissions.

From December 14 through December 21, 2020, the defendants had to produce documents on a rolling basis in two categories: documents sufficient to show the Census Bureau's current data-processing plans, procedures, and schedule, including changes since October 15, 2020; and documents responsive to the House committee's November 19 letter. As a benchmark, the defendants had to review at least 10 to 15 percent of the total collected documents each day and produce relevant, non-privileged documents from that review.

The defendants also had to comply with the unchallenged requirements from the earlier order, including producing specified summary report data and metadata, making an additional witness available for a deposition by December 17, 2020, and responding to interrogatories and requests for admission within 14 days. This order concerned discovery and reconsideration of a discovery order; it did not decide the underlying Enumeration Clause claim.