Karnoski v. Trump, CASE NO. C17-1297 MJP

• Decision Date: 04 March 2020
• Docket Number: CASE NO. C17-1297 MJP
• Court: U.S. District Court — Western District of Washington
• Parties: RYAN KARNOSKI, et al., Plaintiffs, v. DONALD J TRUMP, et al., Defendants.

RYAN KARNOSKI, et al., Plaintiffs, v. DONALD J TRUMP, et al., Defendants.

CASE NO. C17-1297 MJP

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

March 4, 2020

ORDER ON MOTION TO COMPEL REGARDING THE GOVERNMENT'S WITHHELD COMMUNICATIONS WITH THIRD PARTIES

The above-entitled Court, having received and reviewed the LCR 37 Joint Submission Regarding the Government's Withheld Communications with Third Parties (Dkt. No. 440), the Government's Surreply to Plaintiffs' Reply (Dkt. No. 443), along with relevant portions of the record, rules as follows:

IT IS ORDERED that the Government's motion to strike Plaintiffs' reply for violation of LCR 37(a)(2) is DENIED.

IT IS FURTHER ORDERED that the motion to compel the Government's Withheld Communication with Third Parties is GRANTED as follows:

(1) The Government will complete their review of the list of 487 individuals provided in Plaintiffs' December 13, 2019 letter, responding directly to Plaintiffs with information about individuals listed who are government officials; those individuals identified as government employees shall be identified by their employer and job title (as of the date of the communication). This review is to be completed and the information provided to Plaintiffs by March 14, 2020.

(2) For every individual for whom the Government intends to invoke a privilege under the consultant corollary exception, the Government will provide evidence in camera establishing that:

a. The individual identified as a consultant was solicited to aid in the Government's decision-making process (i.e., the letter or email or other communication which solicited the individual's participation),

b. The individual identified as a consultant was hired or solicited by the agency to provide neutral advice that did not represent an interest of its own or the interest of any other client upon providing the requested advice,

c. The communications are otherwise covered by the deliberative process privilege (e.g., the communications with the consultant were pre-deliberative).

This evidence must be provided to the Court no later than March 14, 2020.

(3) Communications from all other third parties (those who are not identified as either consultants or government employees) shall be disclosed to Plaintiffs by no later than March 14, 2020.

Motion to strike

The Government moves, pursuant to LCR 37(a)(2)¹, to strike Plaintiffs' reply section because it is three pages in length. The motion is denied.

The length of Plaintiffs' reply appears necessitated by the obligation to respond substantively to the Government's introduction of its intent to claim the "consultant corollary" exception as a privilege to withhold the production of documents. In the first place, the Court notes that the Government's claim that it has "repeatedly and consistently maintained... that their confidential communications with non-government third parties are privileged, pursuant to the 'consultant corollary' doctrine" (Dkt. No. 440, LCR 37 Submission at 11) is unsupported by any citations to the record, and flatly contradicted both by Plaintiffs ("The Government has ... never formally invoke[ed] consultant corollary theory prior to this filing;" Id. at 24) and the Court's own recollection. The consultant corollary doctrine is a substantive legal concept which the Government asserts but goes to no lengths to describe, necessitating an explanatory reply by Plaintiffs. Simply listing the elements of the privilege takes half a page.

Additionally, the Court notes that LCR 37 indicates: "The total text that each side may contribute to a joint LCR 37 submission shall not exceed twelve pages." LCR 37(2)(E). Including their three-page reply, Plaintiffs' total submission does not exceed twelve pages. The Court finds Plaintiffs' pleadings within the spirit, if not the exact letter, of the rule. The motion to strike is denied.

Motion to Compel

The Court will not reiterate the lengthy procedural history that brings us to this juncture. The basic facts do not appear to be in dispute (even if the characterizations differ) and the Court incorporates by reference the factual statements found in the LCR 37 joint submission. Dkt. No. 440 at 2-9, 12-18.

Plaintiffs seek by this motion an order requiring the Government to review the list of 487 potential third parties provided by Plaintiffs in their December 13, 2019 letter and, alternatively:

(1) Produce all communications with individuals who are confirmed to be third parties; or

(2) Require the Government to amend its privilege logs and provide declarations attesting to the elements of the consultant corollary doctrine with respect to each third party for whom communications continue to be withheld, produce all communications for non-consultant, non-government employed third parties, and identify the employer and job title (as of the date of the communication) for all individuals designated as government employees.

The Government seeks to shield its communications behind the "consultant corollary" doctrine, which states that communications with third parties solicited by the Government to aid in its decision-making process are...