State of New York v. Mayorkas
- Jesse Furman
- 1:20-cv-01127
- U.S. District Court · Southern District of New York
- 2
In State of New York v. Wolf and R. L’Heureux Lewis-McCoy v. Wolf, Judge Furman required privilege details and postponed fee-motion deadlines.
The order directly affected the defendants, who had to provide specific privilege explanations for proposed redactions, and the plaintiffs in both related cases, who received a deadline to respond and had their fee-motion deadlines postponed.
What happened
In the related cases State of New York v. Chad F. Wolf and R. L’Heureux Lewis-McCoy et al. v. Chad Wolf, the court had ordered the defendants to submit a detailed report identifying inaccurate or misleading statements in the record. The defendants submitted redacted and unredacted versions of the report and related declarations and asked to redact material they said was protected by several privileges.
The defendants did not identify which privilege applied to each redaction or explain specifically why each redaction was justified. The court said this was not enough to support the claimed privileges or overcome the usual presumption that judicial documents should be available to the public.
Judge Jesse M. Furman ordered the defendants to provide specific grounds for each proposed redaction by September 21, 2020, and ordered the plaintiffs to respond by September 28, 2020. The court also postponed the deadlines for any plaintiffs’ fee motion until further order; it did not expressly grant or deny the defendants’ request for a protective order.
The detailed version
- State of New York v. Mayorkas · No. 1:20-cv-01127
- Jesse Furman
- Sept. 14, 2020
Background
The court had previously ordered the defendants to file a comprehensive report listing all inaccurate or misleading statements or representations in the record. The court extended the filing deadline to September 4, 2020, to help ensure that the report was complete and accurate.
The defendants then asked for a protective order under Federal Rule of Civil Procedure 5.2(e). They sought permission to redact privileged portions of the report and declarations in the public filings while giving the court unredacted versions for private court review. They invoked the attorney-client, law-enforcement, deliberative-process, and work-product privileges.
Court’s analysis
The court noted that the defendants had not identified which privilege applied to each redaction. They also had not shown specifically why the redactions were justified. The court held that this was insufficient to support a privilege claim or overcome the presumption favoring public access to judicial documents.
The court also required the defendants to address whether submitting unredacted documents to the court waived any of the asserted privileges, particularly because the court had not ordered the defendants to submit allegedly privileged documents as part of the report.
Ruling and next steps
The court ordered the defendants, by September 21, 2020, to identify specifically the grounds for each proposed redaction in the report and declarations. The plaintiffs were ordered to respond by September 28, 2020. The court stated that if it later ordered portions of the report to be unredacted, the plaintiffs would have an opportunity to supplement their earlier response.
The court also postponed the deadlines for the plaintiffs to file a fee motion until resolution of the redaction and privilege issues and any decision about whether further inquiry was warranted. The order did not expressly grant or deny the defendants’ protective-order request. Judge Jesse M. Furman signed the order on September 14, 2020.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.