National Urban League v. Ross

Background

This discovery order addressed 63 disputed privilege assertions in defendants’ December 21 privilege log. Defendants claimed deliberative-process privilege for all 63 documents, attorney-client privilege for three documents, and attorney-work-product protection for one document. They had redacted portions of 42 documents and withheld 21 documents in full.

The order followed an in camera review, meaning the court examined the disputed documents privately rather than relying only on the parties’ descriptions. The court had also received several earlier privilege- and discovery-related submissions.

Privilege waiver

The court deferred deciding whether defendants waived some or all privileges by failing to serve a privilege log on December 14, the date proposed by the parties and set by the court. The court said it would assess waiver using a case-by-case test based on the overall reasonableness of defendants’ conduct.

The court expressed concern that defendants had reported identifying 25,512 documents likely to involve privilege on December 12, but had listed only 135 documents by December 21. A declaration also identified 2,944 documents as likely subject to executive privilege, yet defendants had asserted executive privilege for none of the documents in the December 21 log. The court said more explanation was needed for this gap, while also noting that defendants had produced 89,228 documents since December 1 and that the parties had resolved some disputes through discussions.

Deliberative-process privilege

The deliberative-process privilege protects certain government communications made before an agency decision and containing opinions, recommendations, or advice about agency policies. It does not protect purely factual material that does not reveal the agency’s deliberations, although factual material may remain protected when it cannot be separated from deliberative material.

The court found that defendants had not shown that 39 documents qualified for this privilege. It cited communications strategies and other factual material that did not reveal predecision mental processes. Examples included a draft tweet prepared for the President, press releases, reactions to media articles, preparation for media appearances and opinion pieces, political responses to legislators, and a request for data from the State Department.

The court therefore overruled the deliberative-process privilege assertions for 39 entries and ordered production, while allowing continued redaction of certain personal phone numbers that had been narrowly redacted, including on one identified document. The court sustained the deliberative-process privilege for 24 entries.

Attorney-client and work-product claims

The court separately addressed three entries that also involved attorney-client or attorney-work-product claims. It sustained the privilege assertions for Document 86. It overruled the privilege assertions for Documents 130 and 133, both of which involved communications with Assistant White House Counsel Patrick Philbin.

The court was not persuaded that obtaining legal advice was the primary purpose of the communications in Documents 130 and 133. It also concluded that those documents did not qualify for deliberative-process protection, so defendants were ordered to produce them.

Orders and deadlines

The court ordered defendants to produce the 39 documents for which privilege was overruled by December 26, 2020, at 3:00 p.m. Pacific time. It also ordered defendants to produce the 2,944 documents identified on December 12 as likely subject to executive privilege, unless a document appeared on the December 21 log and its privilege claim was not overruled in this order.

By the same deadline, defendants had to provide plaintiffs with a list containing the name, title, and agency of litigation counsel whom defendants had excluded from the privilege-log process. The parties also had to meet and confer about unresolved issues in their joint discovery report and provide updated information in a case-management statement due December 28. The order states that the timing for objections was governed by an earlier order.

Ruling

The order sustained privilege assertions for 24 entries, overruled privilege assertions for 39 entries, deferred the privilege-waiver question, and imposed the stated production and discovery obligations. The text identifies Lucy Koh as the judge in the supplied case information, but the order itself states that it was signed by Magistrate Judges Nathanael M. Cousins, Susan van Keulen, and Thomas J. Hixson.