United States v. Greenlight Organic, Inc. , 2017 CIT 167 ( 2017 )

Slip Op. 
UNITED STATES COURT OF INTERNATIONAL TRADE
UNITED STATES
Plaintiff,
Before: Jennifer Choe-Groves, Judge
v.
Court No. 17-00031
GREENLIGHT ORGANIC, INC.,
Defendant.
MEMORANDUM AND ORDER
[Defendant’s motion to compel discovery is granted in part and denied in part.]
Dated: December 18, 2017
William Kanellis, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of
Washington, D.C., for Plaintiff. With him on brief were Chad A. Readler, Acting Assistant
Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director.
Josh Levy, Marlow, Adler, Abrams, Newman and Lewis, P.A., of Coral Gables, FL, for
Defendant. With him on brief were Peter S. Herrick, Peter S. Herrick, P.A., of St. Petersburg,
FL, and Frances Pierson Hadfield, Crowell & Moring LLP, of New York, N.Y.
Choe-Groves, Judge: This matter involves a discovery dispute in a claim brought under
19 U.S.C. § 1592 for alleged fraudulent misrepresentations made in the course of importing
merchandise into the commerce of the United States. Before the court is a motion to compel
discovery brought by Defendant Greenlight Organic, Inc. (“Greenlight”) against Plaintiff United
States (“Government”). See Mem. Supp. Def.’s Expedited Mot. Compel, Oct. 14, 2017, ECF
No. 37 (“Def.’s Mot.”). Greenlight asserts that the Government has failed to comply with
discovery requests pursuant to USCIT Rules 26 and 34, and requests that the court order Plaintiff
to (1) produce or compel in camera inspection by the court of the Report of Investigation and
Court No. 17-00031 Page 2
other documents, (2) provide an amended privilege log, (3) produce approximately 145
documents that the Government has claimed as privileged, and (4) provide written responses and
objections to Greenlight’s document requests. See Def.’s Mot. 3–4. Plaintiff has filed a
response to Defendant’s motion. See The United States’ Resp. Def.’s Mot. Compel Disc., Oct.
27, 2017, ECF No. 42 (“Pl.’s Resp.”). The Government claims that the 145 documents identified
on its privilege log are protected under various theories of privilege, and contends that non-
privileged documents have been provided to Greenlight. See id. at 9 n. 5. The court held a
telephone conference with the Parties regarding this motion on December 4, 2017. See
Teleconference, Dec. 4, 2017, ECF No. 52.
First, the court will address the document requests propounded by Greenlight to the
Government. The court notes that the Government produced approximately 2,861 documents in
this case. Def.’s Mot. 13. The Government withheld approximately 145 documents and
provided an “enhanced” privilege log that the Government states “identified the sender,
recipient, custodian, date, subject, a description of each document for which a privilege was
claimed, and the privileges claimed.” Pl.’s Resp. 9–10. The Government has not provided,
however, formal written responses with objections to Greenlight’s first and second document
requests, including identification of responsive documents to those requests. In this Court,
parties must respond to each item in a document request, and documents must be produced
unless a specific objection is made, including the reasons for the objection. USCIT R.
34(b)(2)(B). A party must respond or object to a document request within 30 days. USCIT R.
34(b)(2)(A). The court orders the Government to provide written responses and objections to
Greenlight’s first and second document requests. The Government is instructed to identify with
Court No. 17-00031 Page 3
specific Bates numbers which documents are related to each of the document requests, including
any documents related to the Report of Investigation and the Audit Report, and whether such
documents have been produced or are being withheld as privileged. The Government is
instructed to produce any remaining documents that are responsive.1
Second, the court will address the issue of the privilege log and the Government’s related
argument that approximately 145 documents are protected from discovery due to the deliberative
process privilege. When a party claims privilege as the basis for withholding information from
discovery, USCIT Rule 26(b)(5)(a) requires the party to “expressly make the claim” and provide
a privilege log that “describe[s] the nature of the documents . . . in a manner that, without
revealing information itself privileged or protected, will enable other parties to assess the claim.”
The deliberative process privilege, and the related law enforcement privilege, are often referred
to as common law executive privileges. See Landry v. F.D.I.C., 204 F.3d 1125, 1135 (D.C. Cir.
2000); Marriott Intern. Resorts, L.P. v. United States, 437 F.3d 1302, 1306–07 (Fed. Cir. 2006)
(adopting the rule in Landry). The executive privilege “protects agency officials’ deliberations,
advisory opinions and recommendations in order to promote frank discussion of legal or policy
matters in the decision-making process.” Zenith Radio Corp. v. United States, 764 F.2d 1577,
1580 (Fed. Cir. 1985). In order to invoke executive privilege, the party claiming it must
(1) make a formal claim of privilege via the head of the agency or his delegate, (2) submit an
affidavit showing “actual personal consideration by that official,” and (3) provide a detailed
explanation of what the document is and why it falls within the scope of the privilege. Landry,
1
The Government produced one document that is fully redacted and appears completely
blacked-out. The Government acknowledged that the fully-redacted document should not have
been produced, and that it would correct its privilege log. See Pl.’s Resp. 11.
Court No. 17-00031 Page 4
204 F.3d at 1135. Executive privilege is a qualified privilege, and once it is successfully
established, the burden shifts to the party seeking discovery of the privileged information to
show “compelling need” to overcome it. Marriott Intern. Resorts, L.P., 437 F.3d at 1307.
The Government has not yet satisfied the requirements to assert deliberative process
privilege over the documents in question because it only claims the privilege on its privilege log.
Greenlight notes correctly that the Government must provide the requisite affidavit for each
document in order to assert the deliberative process privilege. See Def.’s Mot. 16. The court
instructs the Government to provide the requisite affidavit and the necessary explanation for each
document if it wishes to assert the deliberative process privilege under the applicable law.
Third, the court will address Greenlight’s request for in camera review of certain
documents for which the Government claims privilege. When balancing competing interests in
discovery, courts have discretion to conduct in camera review to determine whether documents
are protected by the executive privilege. See Kerr v. U.S. Dist. Court, 426 U.S. 394, 405–06
(1976) (describing in camera review as “a highly appropriate and useful means of dealing with
claims of governmental privilege”); Marriott Intern. Resorts, L.P., 437 F.3d at 1307 (noting the
same). A court may conduct in camera review when the requesting party shows “a factual basis
adequate to support a good faith belief by a reasonable person . . . that in camera review of the
materials may reveal evidence to establish” that the privilege applies. United States v. Zolin, 491
U.S. 554, 572 (1989) (creating the standard for in camera review); see also Gilmore v.
Palestinian Interim Self-Gov’t Auth., 843 F.3d 958, 967 (D.C. Cir. 2016) (affirming lower
court’s application of the Zolin standard for discovery invoking executive privilege).
Court No. 17-00031 Page 5
As noted above, the Government has not yet satisfied the requirements to establish
executive privilege over the Report of Investigation, Audit Report, or any of the documents on
its privilege log. It is premature for the court to entertain a request to inspect the documents in
camera.2 The court denies without prejudice Greenlight’s request to inspect the documents in
camera at this time.
Fourth, the court will address Defendant’s request to compel production of the
approximately 145 documents identified on the Government’s privilege log. Executive privilege
is a qualified privilege, and once it is successfully established, the burden shifts to the party
seeking discovery of the privileged information to show a “compelling need” to overcome it.
Marriott Intern. Resorts, L.P., 437 F.3d at 1307. As noted above, it is premature for the court to
entertain a request to compel production of the documents identified on the Government’s
privilege log. After the Government has the opportunity to establish executive privilege through
the requisite affidavit and explanation for each document, Greenlight may then seek discovery of
the privileged documents by specifying which documents it requests and demonstrating why
those particular documents are needed for its case.
Upon consideration of the motion, and all other papers and proceedings in this action, it
is hereby:
2
During the telephone conference, the Government offered to submit the Report of Investigation
to the court for in camera review, asserting deliberative process privilege over the document
because its contents relate to the Department of Homeland Security’s internal investigation
procedures. See Teleconference at 1:07:41–1:08:09. The court received the document, but
declines to conduct in camera review at this time until the Government properly asserts the
privilege with the necessary affidavit and explanation.
Court No. 17-00031 Page 6
ORDERED that Defendant’s motion is granted in part and denied in part; and it is
further
ORDERED that Plaintiff will provide written responses and objections to Defendant’s
first and second document requests, produce any additional documents, and amend its privilege
log as necessary by January 12, 2018; and it is further
ORDERED that Plaintiff will provide the requisite affidavits and other information to
support its claims of deliberative process privilege by January 12, 2018; and it is further
ORDERED that Defendant’s motion for in camera inspection by the court of Plaintiff’s
privileged documents is denied without prejudice; and it is further
ORDERED that Defendant’s motion to compel the production of Plaintiff’s privileged
documents is denied without prejudice.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: December 18, 2017
New York, New York