- 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 JANE DOE 1, et al., Case No. 18-cv-02349-BLF (VKD) 9 Plaintiffs, ORDER RE FEBRUARY 18, 2020 10 v. DISCOVERY DISPUTE 11 CHAD F. WOLF, et al., Re: Dkt. No. 280 Defendants. 12 13 14 The parties dispute whether defendants may claw back from their document production a 15 document (DEF-13914–DEF-13918) that includes a term defendants say is subject to the law 16 enforcement privilege. Dkt. No. 280. Defendants argue that their disclosure of the unredacted 17 document was inadvertent and that the Court has already decided that the law enforcement 18 privilege applies because the document at issue is identical to document DEF-1934–DEF-1938, 19 one of the documents considered in the Court’s September 6, 2019 order (see Dkt. No. 223). Id. at 20 3–5. Plaintiffs argue that defendants waived the privilege by producing the document without 21 redacting the disputed term or claiming privilege for it, and by permitting the document to be used 22 during depositions without objection. Id. at 6–7. 23 Having considered the parties’ submissions and counsel’s arguments at the hearing on this 24 matter, the Court concludes that defendants waived whatever privilege may have attached to the 25 disputed term when they permitted the document—and the disputed term in particular—to be used 26 and discussed in two depositions without objection, as defendants did not take reasonable steps to 27 prevent the disclosure. See Fed. R. Evid. 502(b)(2); see also Luna Gaming-San Diego, LLC v. 1 (finding waiver of attorney-client privilege where privilege holder failed to object immediately to 2 use of privileged document in deposition); Hologram USA, Inc. v. Pulse Evolution Corp., No. 3 2:14-cv-00772-GMN-NJK, 2016 WL 3654285, at *2–3 (D. Nev. July 5, 2016) (same). The Court 4 explained in its earlier order that it was disinclined to find waiver solely because defendants had 5 delayed in asserting privilege with respect to documents inadvertently produced to plaintiffs. See 6 Dkt. No. 224 at 8. However, defendants’ failure to protect the privileged material in document 7 DEF-13914–DEF-13918 differs in important respects from the circumstances the Court 8 considered in its earlier order. After the Court’s September 6, 2019 order resolving defendants’ 9 disputed assertions of privileges (Dkt. No. 223), defendants did not claw back DEF-13914–DEF- 10 13918, even though it included disclosures inconsistent with the order. More importantly, 11 defendants subsequently permitted the use of this document in depositions without objection. 12 Such conduct is manifestly inconsistent with an assertion of the law enforcement privilege. 13 At the hearing, defendants argued that the Court should be reluctant to find waiver of the 14 law enforcement privilege in circumstances where national security interests are at stake. Dkt. No. 15 288. The problem is that defendants are unable to articulate how disclosure of the disputed term 16 implicates such interests. Defendants conceded during argument that, even when read in context, 17 the term does not disclose specific operational details of any vetting technique, and defendants 18 could not explain how disclosure of the term provides “a starting point” by which any particular 19 law enforcement technique may be undermined. See Dkt. No. 280 at 5; Dkt. No. 288.1 20 Accordingly, defendants may not redact the disputed term from document DEF-13914– 21 DEF-13918 based on assertion of the law enforcement privilege. 22 /// 23 /// 24 25 1 The Court is mystified by defendants’ suggestion at the hearing that the Court’s September 6, 2019 order (or plaintiffs’ take on that order) misled defendants into believing that the law 26 enforcement privilege protects only the operational details of a vetting technique when that technique is applied in a particular refugee’s case. Nothing in the Court’s order supports that 27 interpretation. Indeed, most of the Court’s findings sustaining defendants’ assertion of the law 1 IT IS SO ORDERED. 2 Dated: February 25, 2020 3 VIRGINIA K. DEMARCH 5 United States Magistrate Judge 6 7 8 9 10 11 12 13 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28
Document Info
Docket Number: 5:18-cv-02349
Filed Date: 2/25/2020
Precedential Status: Precedential
Modified Date: 6/20/2024