Opinion
Civil Action No. 01-72 (GK)
August 30, 2002
MEMORANDUM OPINION
Plaintiffs have filed a Motion to Compel Discovery against the federal Defendants seeking compliance with their discovery requests in this case. The federal Defendants have filed an Opposition, as well as a Motion to Defer Briefing of Privilege Issues. Plaintiffs have responded with a Reply, which the Court will construe as both a Reply and an Opposition to the Defendants' Motion to Defer Briefing of Privilege Issues. Having read all of the briefing and documentation submitted by counsel, the Court will make certain threshold rulings on the Plaintiffs' Motion, and then refer the remaining issues to Magistrate Judge Alan Kay. As explained herein, the federal Defendants' Motion to Defer Briefing of Privilege issues will be denied, and Plaintiffs' Motion will be granted in part and denied in part.
I. PLAINTIFFS' GENERIC OBJECTIONS TO THE GOVERNMENT'S FAILURE TO PROVIDE COMPLETE DISCOVERY
The Government argues that the Motion to Compel should be denied in its entirety because of Plaintiffs' delay in setting forth their complaints about the federal Defendants' with holdings. This argument has absolutely no merit. Plaintiffs set forth in great detail (Plaintiffs' Reply at 1-8) the continuing efforts they have made, since the Government first began producing material in November 2001, to resolve matters without burdening the Court.
The Government concedes in its papers, despite much obfuscation of the issues, that the FBI has failed to even search its records for responsive materials, no less produce those in its possession. It offers various rationales, including speculation that "the FBI would not have created any such records or files . . ." (Opp. to Mot. to Compel at 5); the argument that the FBI need not "expend effort to search for such reports" (Opp. at 6-7), because any FBI files containing intelligence information about Plaintiffs would not be relevant to their claims, and the fact that the FBI's role was limited to geographic areas outside the parade area. In sum, the Government's position is that it is excused from searching its records, as mandated by the Federal Rules of Civil Procedure, based on mere speculation that the FBI "would not have created" such documents and a cramped view of relevancy. This interpretation of discovery obligations is in direct conflict with the Federal Rules.
The Government has submitted no declaration or affidavit from the FBI that it reviewed Plaintiffs' discovery requests; the Government concedes that it simply does not know if materials responsive to those discovery requests are to be found in FBI files.
Under Fed.R.Civ.P. 26(b)(1), parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . [.] For good cause, the Court may order discovery of any material relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
In short, the Federal Rules provide open discovery and place the burden of justifying non-compliance with discovery obligations on the withholding party, not on the requesting party. The Government, in its Opposition to Plaintiffs' Motion to Compel, clearly misperceives its obligation under the Federal Rules. The Government has erroneously placed the burden of justifying disclosure on Plaintiffs when, in fact, it has the burden to justify its wholesale non-compliance by refusing to search its records and determine if it has discoverable material.
A. Relevancy
Plaintiffs have established that the great bulk of the information they seek is either directly relevant to their claims in this case, or is reasonably calculated to lead to the discovery of admissible evidence.
The Government relies on the statements of Special Agent James Rice, who was in charge of coordinating inauguration security, suggesting that the FBI had few responsibilities that day. However, his comments to the Washington Post reveal that the FBI played a central role in handling all security — not, as the Government alleges, just security issues linked to international terrorism — relating to "every possible thing that could happen, from managing civil disturbances and riots, like those we saw in the 60's, to chemical-biological attacks. . . ." (Plaintiffs' Reply at p. 9.) Intelligence print outs provided by the District of Columbia confirm the FBI's extensive security responsibilities and reveal that the FBI has actively gathered and disseminated intelligence in numerous situations involving protestors and activities before and during the inauguration.
The Government's attempt to downplay the FBI's role by focusing on only physical or geographic location of its agents ignores the fact that the FBI coordinated all security for the inaugural parade and collected intelligence about it. In light of this, the FBI's refusal to examine whether it possesses responsive materials in its files cannot be supported by the relevancy standard set forth in Rule 26.
B. Privileges
Plaintiffs complain that the privileges asserted by the Government — state secrets, law enforcement, and deliberative process — are excessive in scope. Given the manner in which the Government has presented its position on these privileges, it is impossible to make a final judgment at this time.
First, the Government has failed to provide a traditional, meaningful Vaughn index. Instead, it has provided a lengthy, but unfortunately unenlightening, document production index. This index does not identify the material that is withheld or redacted or when that material was withheld or redacted; most importantly, it does not state what privilege is claimed for each particular withholding or redaction. In short, it is extremely difficult, if not impossible, to match the privilege log with the actual withholding in order to determine what the specific legal basis is for any particular withholding or redaction.
Second, the Government has totally failed to comply with the threshold requirements for invoking the state secrets privilege, see U.S. v. Reynolds, 345 U.S. 1, 7-8 (1953); Halkin v. Helms, 690 F.2d 977, 990 (D.C. Cir. 1982), which the Government has asserted some 245 times. In at least one instance, the document for which that privilege is invoked has already been provided in discovery by the District of Columbia.
Third, it would appear that the federal Defendants have not identified the particular withholding or redaction to which either the law enforcement privilege or the deliberative process privilege applies. As to the former, once again, the Government does not appear to have complied with the specific legal requirements set out in the applicable case law. See In Re Sealed Case, 856 F.2d 268, 317 (D.C. Cir. 1988)
Finally, as Plaintiffs point out, Defendants invoke the confidential information privilege on many occasions, but do not specify the material to which it applies.
Accordingly, in light of these inadequacies in its production index, the Government must prepare an adequate privilege log remedying these deficiencies.
II. PLAINTIFFS' SPECIFIC OBJECTIONS TO THE GOVERNMENT'S FAILURE TO PROVIDE COMPLETE DISCOVERY
The Court will now address, seriatim, several discrete issues that the parties raised in their papers.
A. Security Options, Plans and Deliberations
This subject will be referred to Magistrate Judge Kay.
B. Access and Credentialing
Plaintiffs are entitled to information on this subject as it pertains to John Dirken; they are not entitled to information regarding the scope of access afforded by different symbols that might be used on the credentials themselves.
C. Training Materials
Plaintiffs are entitled to all training materials requested concerning conduct of Government agents towards demonstrators. No request is made by Plaintiffs for training materials regarding protection of the President.
D. Radio and Telephone Channels
Given the fact that Defendant District of Columbia was able to produce its radio runs, it is hard to comprehend why the Federal Defendant is unable to do so. This subject is referred to Magistrate Judge Kay for further exploration.
E. Material Relating to PIC or Press
If Plaintiffs sought this information, which the Government denies, they are entitled to it.
F. Materials Regarding Identification of Non-Uniformed Officers
Identification of the third of the three provocateurs, alleged to be involved in the pepper spray incident, is clearly relevant, and shall be supplied by the Federal Defendants.
G. Remaining Materials
All other materials pertaining to Plaintiffs' Motion to Compel
Discovery, which have not been addressed, are hereby referred to Magistrate Judge Kay. In addition, any challenges to the Vaughn index to be prepared by the Government are also referred to Magistrate Judge Kay.
For the foregoing reasons, Plaintiffs' Motion to Compel Discovery is granted in part and denied in part. Defendants' Motion to Defer Briefing of Privilege Issues is denied.