National Urban League v. Ross ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 NATIONAL URBAN LEAGUE, and others, Case No. 20-cv-05799 LHK 12 Plaintiffs, ORDER ON PROCEDURES FOR IN 13 CAMERA PRIVILEGE REVIEW BY v. MAGISTRATE JUDGES 14 WILBUR L. ROSS, JR., and others, 15 Defendants. 16 17 18 The presiding judge has referred to the undersigned magistrate judges in camera 19 review of documents that the defendants assert are privileged. District Court Judge Lucy 20 H. Koh’s orders at ECF 119, 128, 132, 140, and 153 set forth this process. The parties 21 have consented to having the Magistrate Judges’ privilege rulings be final and appealable 22 to the Ninth Circuit or the U.S. Supreme Court. ECF 140. 23 This order supplements Judge Koh’s orders on the privilege dispute process. 24 1. By 11:00 p.m. Pacific time on September 19, 2020, plaintiffs must identify no 25 more than 75 documents as “highest priority” for privilege review from among 26 the documents on defendants’ privilege logs. This should be part of their 27 objection filed in ECF. See ECF 140. 1 2. By 11:00 a.m. Pacific time on September 20, 2020, defendants may identify no 2 more than 75 documents as “highest priority” for privilege review from among 3 the documents on defendants’ privilege logs. This should be part of defendants’ 4 response filed in ECF. See ECF 140. 5 3. The Court intends to address these “highest priority” category documents first. 6 4. There are hundreds of documents listed on defendants’ September 18 privilege 7 log at ECF 154-2 that do not have a privilege identified under the column for 8 “Privilege”. The Court interprets that for each of these documents, no privilege 9 is asserted and therefore no objection needs to be made by plaintiffs. The Court 10 therefore orders the defendants to produce and ECF-file each of these non- 11 privileged documents by September 20 at 11:00 a.m. Pacific time. It may be 12 that these documents are already produced in the voluminous filings at ECF 13 154-157, but the Court has not had time to cross-check the logs. Defendants’ 14 September 20 response must clarify and confirm that these documents have been 15 produced and filed. 16 5. Defendants assert the attorney-client privilege for some documents on their logs. 17 The logs, however, often do not explicitly identify who the attorney(s) are who 18 are claimed to be part of the privileged communication. By September 20 at 19 11:00 a.m. Pacific time, defendants must supplement the logs as to any 20 documents with an attorney-client privilege claim by explicitly identifying every 21 attorney that is part of the communication chain. 22 6. Pursuant to Judge Koh’s order, defendants provided the declaration of Allyson 23 Deitrick (ECF 158) and the declaration of Megan Heller (ECF 159) 24 (“Declarations”) in support of the deliberative process privilege. In describing 25 the categories of documents over which the privilege is asserted, the 26 Declarations are identical except in the identification of bates numbers in each 27 category. Compare, Declarations paragraphs 5(a), (b), (c) and (d). By 4:00 p.m. 1 are correct and to file amended declarations as necessary. 2 7. Finally, both parties in their filings must address the applicability of the four- 3 factor test from FTC v. Warner Communications, Inc., 742 F.2d 1156, 1161 (9th 4 Cir. 1984). The second Warner factor is the availability of other evidence. If 5 defendants assert that “other evidence” is available, they must cite to specific 6 evidence in the record. 7 8 IT IS SO ORDERED. 9 10 Dated: September 19, 2020 hbo ——> _ NATHANAEL M. COUSINS 11 United States Magistrate Judge 12 13 OS SUSAN VAN KEULEN 14 United States Magistrate Judge 15 16 Sf THOMAS S. HIXSON 2 17 United States Magistrate Judge 7 18 19 20 21 22 23 24 25 26 27 28