National TPS Alliance v. Noem
3:25-cv-01766
N.D. Cal.Jun 12, 2025Background
- Plaintiffs challenge the government’s withholding of documents under the deliberative process privilege (DPP) in a case concerning Temporary Protected Status (TPS) policies.
- Magistrate Judge Kim issued a discovery order requiring the production of certain documents withheld under the DPP.
- The government filed a motion seeking relief from Judge Kim’s order, arguing she erred in her assessment and application of the DPP.
- District Judge Edward Chen reviewed the Magistrate’s order according to the "clear error or contrary to law" standard, as required by 28 U.S.C. § 636 and Fed. R. Civ. P. 72(a).
- The government raised five main challenges to Judge Kim’s handling of the discovery dispute, focused on the method of analysis, burden allocation, proportionality, relevance to the claims, and possible jurisdictional issues due to pending appellate review.
Issues
| Issue | Plaintiff’s Argument | Defendant’s Argument | Held |
|---|---|---|---|
| Representativeness of bellwether document analysis | Bellwether sample fairly represents documents at issue; legitimate approach for discovery orders | A document-by-document analysis is required and bellwether approach is insufficient | Bellwether analysis was reasonable and representative; government did not establish a reason to require different analysis |
| Allocation of burden under DPP | Plaintiffs showed need for documents; burden properly allocated | Judge Kim improperly shifted burden to government on DPP | Judge Kim correctly applied burden; did not misallocate it |
| Proportionality and chilling effect | Discovery circumscribed by limits ordered; government failed to substantiate chilling effect | Judge Kim ignored Rule 26 proportionality and dismissed chilling effect concerns | No error; proportionality satisfied; chilling effect claim unsupported |
| Relevance to claims (APA and equal protection) | Evidence relevant both to remaining APA and equal protection claims; still in case | Documents not relevant to APA claim as summary judgment on equal protection not sought | Discovery relevant to both APA and equal protection claims; claim of irrelevance rejected |
Key Cases Cited
- Grimes v. City & Cnty. of S.F., 951 F.2d 236 (9th Cir. 1991) (standard for district court review of magistrate judge’s nondispositive rulings is clear error or contrary to law)
- Burdick v. Comm'r Internal Rev. Serv., 979 F.2d 1369 (9th Cir. 1992) (district judge may not simply substitute judgment when reviewing magistrate’s order; must have definite and firm conviction of error)
- Karnoski v. Trump, 926 F.3d 1180 (9th Cir. 2019) (court may require granular document review if shown necessary; otherwise, sampling/bellwether approach can suffice)
- FTC v. Warner Comm’n, Inc., 742 F.2d 1156 (9th Cir. 1984) (establishes four factors for determining whether deliberative process privilege should be overridden)
- United States Fish & Wildlife Serv. v. Sierra Club, Inc., 592 U.S. 261 (2021) (clarifies when documents are predecisional or deliberative for privilege purposes)
- Citizens for Responsibility & Ethics in Wash. v. United States DOJ, 45 F.4th 963 (D.C. Cir. 2022) (explains pre-decisional and deliberative nature of documents for privilege)