DOJ Files Redacted Reply to Judge Hanen’s Discovery Order

April 30th, 2015

DOJ’s redacted brief in response to Judge Hanen’s April 7 order is here. Here is the summary:

Defendants respectfully submit this filing, along with an in camera production of privileged documents and a privilege log, in response to the Court’s Order of April 7, 2015.1 Defendants and the Department of Justice (DOJ) take extremely seriously their obligation of candor to the courts in representing the interests of the United States and recognize the Court’s legitimate interest in ensuring the candor of those appearing before it. DOJ and Defendants have fulfilled that duty in this case, and they regret and apologize for the misunderstanding that inadvertently resulted from their statements about the effective dates for actions under the November 20, 2014 Deferred Action Guidance at issue in this case. But, as the broad array of privileged material being submitted pursuant to the Court’s Order helps demonstrate, neither that misunderstanding nor the timing of the Government’s notice to the Court concerning this matter was the product of a lack of candor or bad faith or calculated delay. Rather, the misunderstanding was the inadvertent result of Government counsel’s effort to be forthcoming with the Court about matters related to the preliminary injunction motion. The Government did not attempt to mislead the Court or engage in any other intentional misconduct; no basis exists for imposing sanctions; and the imposition of sanctions would, in any event, be improper in the absence of additional procedures.

DOJ also filed over 1,000 pages in camera, but urges the court not to review it, because it may interfere with the current appeal:

2. As described more fully in Part IV below, we are submitting in camera privileged lists of individuals who “knew about th[e] Advisory, or about the DHS activity discussed therein,” Order at 11, as well as 1163 pages of privileged documents, comprising the results of our search for “any and all drafts of the March 3, 2015 Advisory, including all corresponding metadata and other tangible items that indicate when each draft of the document was written and/or edited or revised.” April 7 Order at 11. However, we do not believe it necessary for the Court to review those materials, because this filing and the privilege log are sufficient to show that the Advisory was filed after counsel for Defendants realized that there had been a potential for misunderstanding. Furthermore, the underlying materials, which concern the drafting and filing of a document in ongoing litigation, reside at the core of the work product doctrine, the attorney-client privilege, and the deliberative process privilege. Exposure of such sensitive materials, even in camera, while the underlying suit remains pending on the merits before the Court could create significant difficulties, and thus should be avoided. In all events, this privileged information should not be disclosed to Plaintiffs. See, e.g., In re United States, 397 F.3d 274, 285-86 (5th Cir. 2005).