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Veterans of America, et al., et al v. Central Intelligence Agency

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


May 31, 2012

VETERANS OF AMERICA, ET AL., ET AL., PLAINTIFFS,
v.
CENTRAL INTELLIGENCE AGENCY,
DEFENDANTS.

ORDER RE: MAY 30 & 31, 2012 IN CAMERA SUBMISSIONS OF DOCUMENTS VIETNAM

Pursuant to the Court's Orders of May 14 and 23, 2012, Defendant Department of Veterans Affairs ("DVA") has resubmitted four previously illegible documents for review in 22 camera. (Dkt. Nos. 423, 430). DVA asserted the deliberative process privilege over these 23 documents and those addressed in the Court's November 23, 2011, April 6, 2012, May 14, 24 2012 and May 23, 2012 Orders. (Dkt. Nos. 327, 408, 423 & 430). The Court previously 25 found that with respect to some of the documents over which DVA asserted the deliberative 26 process privilege, the privilege either did not apply or Plaintiffs had shown a substantial need 27 for the documents sufficient to overcome the claim of privilege. The Court incorporates 28 these prior orders by reference and makes the following findings with respect to the four 2 outstanding documents. 3 documents for in camera review because the copies previously provided to the Court were 5 illegible. On May 30, 2012, Defendant submitted two documents and on May 31, 2012 6 Defendant does not need to produce DVA078 004458-4469.

To the extent that DVA078 004748-4751 is deliberative, Plaintiffs have a substantial need for the document sufficient to overcome the claim of privilege.

Defendant shall produce this document to Plaintiffs.

DVA078 003366-3368 and 4179-4181 are duplicate documents, which appear to summarize the state of Defendant's legislative proposals as of January 23, 2007. These documents do not appear to be deliberative, and if even they are, Defendant has indicated that there is no final version of these documents.

Accordingly, Defendant shall produce the documents to Plaintiffs.

With respect to the two points of clarification sought in DVA's May 30, 2012 filing, 17 the Court responds as follows. The Court found that Defendant had waived any claim of 18 privilege with respect to the six documents identified because they were referenced in the 19 Spinelli Declaration (Dkt. No. 371-1), but the documents were neither contained in the 20 privilege log accompanying the in camera production, nor in the in camera submission itself.

See DVA078 24-26, 2700-2703, 1867, 2045-2055, 2681 and 4221. Defendant alleges that 22 the documents were not included because they are duplicates of documents which the Court 23 previously reviewed in camera, and following review, the Court sustained Defendant's claim 24 of privilege. The Court accepts this representation as true; however, the Court notes these 25 documents were not listed as duplicates on Exhibit G to Plaintiffs' Motion to Compel (Dkt. 26 Nos. 404, n.1; 405-6 ) and the Court relied on this list for purposes of determining which 27 documents were duplicates. Accordingly, if Plaintiffs disagree with Defendant's 28 characterization of these documents, they should bring this to the Court's attention

The Court's May 14 and May 23 Orders directed Defendant to resubmit four Defendant submitted the remaining two documents. The Court finds as follows: 7

immediately. In the absence of any filing by Plaintiffs on this matter, the Court finds that 2

Defendant has not waived the privilege and need not produce these six documents. 3 Second, the Court's May 23, 2012 Order inadvertently indicated that Defendant 4 should produce documents DVA078 3100-4103. Defendant is only ordered to produce the 5 single document at DVA078 3100-3104. 6

Based on the foregoing, Defendant shall produce DVA078 004748-4751, 3366-3368 7 and 4179-4181 to Plaintiffs by June 7, 2012. This Order resolves all outstanding matters 8 regarding those documents over which Defendants have asserted the deliberative process 9 privilege. 10

IT IS SO ORDERED.

20120531

© 1992-2012 VersusLaw Inc.



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