356 F. Supp. 3d 505 | D. Maryland | 2018
1. Standard of Review
Under Federal Rule of Civil Procedure 72(a), a district court "must consider timely objections" to a USMJ's order on nondispositive, pretrial matters and "modify or set aside any part of the order that is clearly erroneous or is contrary to law." "The 'clearly erroneous' standard applies to factual findings, while legal conclusions will be rejected if they are 'contrary to law.' " Sky Angel U.S., LLC v. Discovery Commc'ns, LLC,
Under the clearly erroneous standard, the reviewing court does not ask whether a finding is "the best or only conclusion permissible based on the evidence." In re Subpoena of Am. Nurses Ass'n, No. 08-CV-0378,
"The 'contrary to law' standard ordinarily suggests a plenary review of legal determinations, but many courts have noted that decisions of a magistrate judge concerning discovery disputes ... should be afforded 'great deference.' " In re Outsidewall Tire Litig.,
2. Analysis
Defendants challenge three aspects of the USMJ's discovery Order: (1) certain factual findings; (2) the grant of Plaintiffs' Motion to Compel and the finding of mootness as to Plaintiffs' Motion for Judicial Determination of Privilege Claims; and (3) the partial denial of the Protective Order.
*512a. Factual Findings
Defendants argue that the USMJ's Memorandum Opinion and Order are based on "clearly erroneous" findings of fact. (Defs.' Objs. Magistrate Judge's Mem. Op. & Order at 24-28). Defendants contend that the USMJ erred in finding that: (1) DOD's Panel of Experts would not have existed but for President Trump's August 2017 Tweets; (2) the circumstances regarding military readiness and deployability could not have changed so dramatically between 2016 and 2018 to warrant the creation of a new policy; and (3) the new policy bans transgender persons from military service.
Here, the USMJ's factual findings are reasonable. First, the USMJ's conclusion that the DOD Panel of Experts would not exist but for President Trump's Tweets on transgender military service is supported by evidence in the record. President Trump issued his series of Tweets on July 26, 2017. When the Secretary of Defense issued Terms of Reference for developing the Implementation Plan over a month later on September 14, 2017, he directed the Deputy Secretary of Defense and the Vice Chairman of the Joint Chiefs of Staff to convene a Panel of Experts from within DOD to conduct a study to inform the Implementation Plan. (Pls.' Cert. Conf. Counsel Ex. 20 at 2-3). The timeline of these events would, therefore, make it reasonable to conclude that the Panel of Experts was born of President Trump's Tweets.
Nevertheless, Defendants argue that DOD began a review of its transgender service member policy before President Trump's Tweets, and that this review was the true impetus for convening the Panel of Experts. Plaintiffs explain, however, that this review was designed to assess the military's readiness to implement the Open Service Directive, not whether to implement the Open Service Directive at all. Thus, it was reasonable for the USMJ to find that the Panel of Experts would not exist without President Trump's Tweets announcing a change to the policy on transgender military service.
Second, the USMJ's finding that the circumstances regarding military readiness and deployability could not have changed so dramatically between 2016 and 2018 to warrant the creation of a new policy is reasonable based on the limited evidence in the record. Defendants suggest that this finding is clearly erroneous because the review for the Open Service Directive was based on limited and heavily caveated data from an external source, whereas the Panel of Experts' review was based on DOD's own data and experience. Plaintiffs and the USMJ regard the first review as valid because that process incorporated both the military leadership and transgender representatives. In order to explain how conditions changed so dramatically between 2016 and 2018, Defendants would need to produce additional information about the Panel of Experts that they currently seek to protect under deliberative process privilege. Given the lack of evidence in the record suggesting substantial changes to military readiness and deployability, the USMJ's finding that any such changes are too minor to warrant a change in policy is reasonable.
Finally, the USMJ's finding that the Transgender Service Member Ban bans transgender persons from military service is reasonable. Defendants argue that the Implementation Plan would not result in a ban of transgender persons from the military because the new policy is not based on transgender status, but rather on the medical condition of gender dysphoria. The Court is not persuaded. The Implementation Plan states: (1) "transgender *513persons who require or have undergone gender transition are disqualified from military service"; and (2) "transgender persons without a history or diagnosis of gender dysphoria, who are otherwise qualified for service, may serve ... in their biological sex." (Mot. Dissolve Prelim. Inj. at 3-4). Prohibiting transgender persons who have undergone transition clearly discriminates on the basis of transgender identity. Moreover, requiring transgender persons who have not undergone transition to serve in their biological sex forces them to "suppress the very characteristic that defines them as transgender in the first place." Karnoski v. Trump,
The Court will, therefore, overrule Defendants' Objections related to the USMJ's factual findings.
b. Motion to Compel
Defendants raise three main objections to the USMJ's Memorandum Opinion and Order addressing Plaintiffs' Motion to Compel and Motion for Judicial Determination of Privilege Claims: (1) the USMJ prematurely decided discovery motions because dispositive motions are still pending; (2) the USMJ failed to apply precedent from the United States Supreme Court and the United States Court of Appeals for the Fourth Circuit in determining that Plaintiffs' requested discovery is not protected by deliberative process privilege; and (3) the Motion for Judicial Determination of Privilege Claims is not moot because deliberative process privilege should apply. The Court disagrees.
i. Discovery Decisions Not Premature
"District courts enjoy substantial discretion in the management of discovery and whether to grant motions to compel." E.E.O.C. v. Freeman,
"Federal district courts often stay discovery pending the outcome of dispositive motions that will terminate the case." Cleveland Const., Inc. v. Schenkel & Schultz Architects, P.A., No. 3:08-CV-407RJCDCK,
*514(first citing Land v. Dollar,
Here, the USMJ did not rule contrary to law in granting Plaintiffs' Motion to Compel. It is within the Court's discretion to determine whether to stay discovery pending the resolution of dispositive motions. Thigpen,
The Court will, therefore, overrule Defendants' Objections related to the USMJ prematurely deciding discovery motions.
ii. Deliberative Process Privilege
Defendants raise two arguments related to the USMJ's decision that deliberative process privilege does not apply to the documents Plaintiffs request. First, Defendants argue that the USMJ erred in failing to apply the factors from Cipollone v. Liggett Grp. Inc.,
A court should deny a motion to compel discovery where the requested discovery is protected by deliberative process privilege. See City of Va. Beach v. U.S. Dept. of Commerce,
Deliberative process privilege is not absolute and courts may balance the "public interest in nondisclosure with the need for the information as evidence." Cipollone,
*515(2) the availability of alternative evidence on the same matters; (3) the government's role (if any) in the litigation, and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions."
In weighing the government's role, some courts have held that the deliberative process privilege does not apply where "the plaintiff's cause of action is directed at the government's intent." In re Subpoena Duces Tecum,
Here, the USMJ did not act contrary to law in finding that deliberative process privilege does not protect the information Plaintiffs requested in their Motion to Compel. The standard of review for objections to a USMJ's ruling looks to whether there is legal authority that supports the USMJ's conclusion. Guiden,
Even if the USMJ had applied the Cipollone balancing test, he would have reached the same conclusion. First, the deliberative evidence Plaintiffs seek on government intent is highly relevant to the lawsuit because it may explain why the Government changed its policy on transgender service members and whether that policy change was motivated by a legitimate government interest. Second, no alternative evidence on government intent is available to Plaintiffs. Third, the Government plays a central role in the litigation because Defendants-the parties being sued-are government officials and the parties that created the challenged Transgender Service Member Ban. These three factors weigh strongly in favor of disclosure and outweigh the fourth factor-the risk that disclosure will chill future policymaking discussions.
Nevertheless, Defendants argue that the Cipollone balancing test would not weigh in favor of disclosure because government intent is not at issue. Defendants maintain that government intent is not at issue because Trump v. Hawaii, affords great deference to the government on issues of military policy. Plaintiffs aptly point out, however, that the deference afforded to military policy in Hawaii applies to a facially neutral policy. Unlike the policy in Hawaii, which was "facially neutral towards *516religion," the "[Transgender Service Member] Ban is facially discriminatory." Karnoski,
The Court will, therefore, overrule Defendants' Objections related to the deliberative process privilege.
iii. Judicial Determination of Privilege Moot
Defendants argue that deliberative process privilege applies in this case and that it protects a PowerPoint document Defendants inadvertently disclosed to Plaintiffs. As a result, Defendants conclude that a judicial determination of privilege on the PowerPoint document that they seek to clawback is not moot.
Here, the USMJ correctly concluded that Plaintiffs' Motion for a Judicial Determination of Privilege Claims on the PowerPoint that Defendants seek to clawback is moot. As discussed above, the USMJ correctly determined that deliberative process privilege does not apply to Plaintiffs' requested discovery, which rendered Defendants attempt to clawback the PowerPoint moot because it is not covered by deliberative process privilege.
The Court will, therefore, overrule Defendants' Objections related to the mootness of judicial determination of privilege of the PowerPoint.
c. Protective Order and Presidential Communications Privilege
Defendants argue that the Protective Order should be extended not only to the President, but also to those with whom the President communicates because the same separation-of-powers concerns are at issue. Plaintiffs note that they are not seeking any information covered by presidential communications privilege at this time, but rather they are only seeking deliberative material. Plaintiffs plan to "exhaust this category of discovery before determining whether it is necessary to challenge Defendants' assertion of the presidential communications privilege." (Pls.' Resp. Defs.' Objs. Magistrate Judge's Mem. Op. & Order at 7, ECF No. 216).
Under Federal Rule of Civil Procedure 26(c)(1), "[a] party or any person from whom discovery is sought may move for a protective order." The government may seek a protective order in the interest of protecting presidential communications. Cheney v. U.S. Dist. Court for D.C.,
Here, the USMJ did not err in granting the Protective Order only as to the President. Defendants argue that the USMJ's partial denial of Defendants' Motion for a Protective Order means that Plaintiffs may move to compel the disclosure of presidential communications "in the possession of Defendants other than the President." (Defs.' Reply Objs. Magistrate Judge's Mem. Op. & Order at 14, ECF No. 221). That is not how the Court understands the scope of the Protective Order. On the contrary, the Court construes the Protective Order to encompass communications both to and from the President. Consequently, any concerns Defendants have over a potential motion to compel disclosure of presidential communications is mitigated.
The Court will, therefore, overrule Defendants' Objections related to the Protective Order.
B. Motion to Stay Compliance with Magistrate Judge's Order
Defendants move to stay compliance with the USMJ's Memorandum Opinion and Order. They note that the Ninth Circuit granted the Karnoski defendants' motion for a stay pending consideration of the petition for writ of mandamus in In re Donald Trump. The stay in the Ninth Circuit precludes disclosure of documents protected by deliberative process privilege. See Karnoski,
"The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Donnelly v. Branch Banking & Trust Co.,
"A district court ordinarily has discretion to delay proceedings when a higher court will issue a decision that may affect the outcome of the pending case." White v. Ally Fin. Inc.,
Here, all four factors weigh in favor of staying the USMJ's Order compelling production of documents Defendants maintain are covered by the deliberative process privilege. A stay would promote judicial economy because the Karnoski defendants have appealed a similar motion to compel discovery of documents claiming deliberative process privilege. The Ninth Circuit stayed the district court's order compelling discovery of these documents until it issues a decision on the writ. There is significant overlap between the documents the Karnoski plaintiffs seek and the deliberative documents Plaintiffs seek in this case. Compare Karnoski,
Thus, the Court, will grant Defendants' Motion to Stay the Magistrate's Order as to the Motion to Compel until the Ninth Circuit issues its opinion in In re Donald J. Trump.
III. CONCLUSION
For the foregoing reasons, the Court will overrule Defendants' Objections to the USMJ's Memorandum Opinion and Order (ECF No. 209) and grant Defendants' Motion to Stay the USMJ's Memorandum Opinion and Order (ECF No. 208), pending the decision on the petition for writ of mandamus in the Ninth Circuit. A separate order follows.
Defendants argue that disclosure of deliberative documents will chill candid discussions about military policy between subordinates and military leaders. Defendants do not explain, however, why the chilling effect is particularly great in this case or why it is great enough to outweigh the other three Cipollone factors.
The USMJ describes Plaintiffs' Motion for Judicial Determination of Privilege Claims as relating to two documents. (Mem. Op. at 11). The parties, however, describe the same Motion as relating to one PowerPoint briefing. (Defs.' Objs. Magistrate Judge's Mem. Op. & Order at 23).
The Court acknowledges that the appeal of the motion to compel discovery in In re Donald J. Trump applies to documents that the Karnoski defendants maintain the presidential communications privilege covers, as well as documents they assert the deliberative process privilege covers. Nevertheless, one of the issues on appeal is the applicability of deliberative process privilege to documents that are similar to documents Plaintiffs seek in the instant case.