State Of New York v. United States Department of Commerce

Background

Two groups of plaintiffs challenged Secretary of Commerce Wilbur L. Ross, Jr.’s decision to add a citizenship question to the 2020 decennial census questionnaire. The Governmental Plaintiffs were a coalition of states and other government entities, and the NGO Plaintiffs were a coalition of nongovernmental organizations. The court previously vacated the decision and barred its implementation after finding that it violated the Administrative Procedure Act, including because the Secretary’s stated reason was pretextual. The Supreme Court affirmed on the ground that the stated rationale was pretextual and contrived. Defendants later consented to a permanent injunction barring the citizenship question.

While the case was pending before the Supreme Court, the NGO Plaintiffs obtained evidence that they said suggested the citizenship question was promoted to advance redistricting strategies benefiting Republicans and non-Hispanic whites. They also alleged that witnesses provided false testimony and that Defendants withheld evidence during discovery. During a later investigation, Defendants disclosed that more than 2,000 documents had not been produced. After review, Defendants produced at least 900 previously unproduced documents, excluding duplicates.

The Motion

The NGO Plaintiffs sought additional discovery and sanctions under Federal Rule of Civil Procedure 26(g)(3), Rule 37(b)(2), and the court’s inherent authority. Their requested relief included additional factual findings, possible waiver of deliberative-process privilege, and monetary sanctions.

Rule 26(g)

Rule 26(g) requires attorneys to certify that discovery disclosures are complete and correct when made. The court explained that sanctions under Rule 26(g)(3) generally require harm caused by the violation. It denied sanctions and related discovery under this rule for two reasons. First, the NGO Plaintiffs’ principal allegations concerned senior Commerce and Department of Justice officials, while Rule 26(g)(3) applies to the attorneys who signed the discovery certifications and the parties on whose behalf they acted. Second, the NGO Plaintiffs had already prevailed and obtained the substantive relief they sought, so the alleged misconduct had not caused the type of substantive harm required for Rule 26(g) sanctions.

Inherent Authority

The court also declined to impose sanctions under its inherent authority or order further discovery concerning the alleged false testimony and concealment. Such sanctions require bad faith, and alleged misconduct by a nonparty witness generally must be part of a broader scheme that seriously interferes with the judicial process. The court found that the record did not contain clear and convincing evidence that Neuman’s testimony was part of a scheme by Defendants or their attorneys to mislead the court. Regarding Gore, the court found that the evidence did not show that his testimony about drafting the initial version of the letter was intentionally misleading or given in bad faith.

The court further declined to order a broad investigation into the conduct of Neuman, Gore, and others. It reasoned that the plaintiffs had already won complete relief, that the requested investigation would require additional judicial resources, and that Congress and other oversight bodies were better suited to investigate the broader events.

Rule 37

Rule 37 allows sanctions when a party fails to obey an order requiring discovery. Defendants argued that Rule 37 did not apply because the relevant order directed them to complete the administrative record rather than provide discovery. The court rejected that distinction. It held that the July 5, 2018 order requiring Defendants to produce the complete administrative record was an order to provide or permit discovery for purposes of Rule 37.

The court found that Defendants failed to produce at least 900 documents, totaling about 3,700 pages, because of a coding error in their document-review system. Defendants did not claim that the failure was substantially justified. Although many possible Rule 37 sanctions would have been pointless after the plaintiffs had already won and defended their judgment on appeal, the court determined that reimbursement of reasonable expenses was appropriate.

Disposition

The court granted in part and denied in part the NGO Plaintiffs’ motion for discovery and sanctions. It ordered Defendants to reimburse the NGO Plaintiffs for reasonable attorney’s fees and costs incurred in addressing the incomplete document production, specifically expenses incurred since Defendants’ November 25, 2019 letter revealing the discovery lapses. The parties were directed to meet and confer about the amount, and the court established procedures for any remaining fee dispute. The court did not impose additional sanctions or authorize the requested further discovery.