United States v. Greenlight Organic, Inc.
2017 CIT 167
| Ct. Intl. Trade | 2017Background
- Greenlight Organic, Inc. moved to compel discovery from the United States in a 19 U.S.C. § 1592 import-fraud case, seeking production or in camera review of a Report of Investigation, an Audit Report, and ~145 documents the Government logged as privileged.
- The Government produced ~2,861 documents but withheld ~145 as privileged and provided an "enhanced" privilege log; it had not provided formal written responses to Greenlight's first and second document requests.
- Greenlight contended the Government’s privilege assertions were inadequate and sought court-ordered production or in camera inspection; the Government asserted deliberative process and related executive privileges.
- The Government did not submit the required agency affidavits/explanations needed to invoke the deliberative process privilege for each logged document.
- The court held a teleconference, reviewed the parties’ briefs, and received (but declined to review) the Report of Investigation pending proper privilege assertions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Government must provide written responses and objections to Greenlight's document requests | Government produced documents and a privilege log; did not offer specific itemized responses yet | Greenlight says Government failed to comply with USCIT R.34 and must identify responsive documents and objections | Court ordered Government to provide written responses/objections, identify responsive Bates ranges, and produce remaining responsive documents by Jan 12, 2018 |
| Whether Government adequately asserted deliberative process (executive) privilege over ~145 documents | Government claimed deliberative process privilege on log but had not submitted head-of-agency/declarant affidavits or detailed explanations | Greenlight argues the log alone is insufficient and requires document-by-document affidavits/explanations | Court held the privilege assertion was insufficient and ordered Government to submit requisite affidavits/explanations by Jan 12, 2018 |
| Whether court should conduct in camera review now of documents claimed privileged | Government offered in camera submission of Report of Investigation and asserted privilege | Greenlight sought in camera review to test privilege claims | Court denied in camera review without prejudice as premature until Government properly asserts privilege via affidavits/explanations |
| Whether court should compel production of the privileged documents | Government contends documents are protected by qualified executive privilege | Greenlight seeks compelled production and argues need outweighs privilege | Court denied motion to compel production without prejudice; Greenlight may later seek specific documents showing compelling need after Government properly asserts privilege |
Key Cases Cited
- Landry v. F.D.I.C., 204 F.3d 1125 (D.C. Cir. 2000) (requirements for invoking executive/deliberative process privilege)
- Marriott Intern. Resorts, L.P. v. United States, 437 F.3d 1302 (Fed. Cir. 2006) (executive privilege is qualified and party seeking discovery must show compelling need once privilege is established)
- Zenith Radio Corp. v. United States, 764 F.2d 1577 (Fed. Cir. 1985) (executive privilege protects agency deliberations and advisory opinions)
- Kerr v. U.S. Dist. Court, 426 U.S. 394 (U.S. 1976) (in camera review is an appropriate tool for resolving governmental privilege claims)
- United States v. Zolin, 491 U.S. 554 (U.S. 1989) (standard for when in camera review may be used to test privilege claims)
- Gilmore v. Palestinian Interim Self-Gov't Auth., 843 F.3d 958 (D.C. Cir. 2016) (affirming application of Zolin standard to executive-privilege discovery disputes)