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Doe v. McAleenan

United States District Court, N.D. California, San Jose Division

October 15, 2019

JANE DOE 1, et al., Plaintiffs,
v.
KEVIN K. MCALEENAN, et al., Defendants.

          ORDER RE DISCOVERY PLAN RE: DKT. NO. 251

          Virginia K. Demarchi United States Magistrate Judge

         As directed by the Court, the parties have submitted their respective views regarding a plan for completing the remainder of jurisdictional discovery. Dkt. No. 251. Where the parties agree, the Court has adopted the agreed portions of their plan. Where the parties disagree, the Court resolves the disagreement as explained below.

         I. JURISDICTIONAL DISCOVERY

         A. Review and Reproduction of Redacted / Privileged Documents

         The parties advise that defendants completed their production of documents relating to jurisdictional discovery on April 30, 2019. Defendants have redacted some responsive documents based on the assertion of one or more governmental privileges and have demanded that plaintiffs return other responsive documents that defendants say were inadvertently produced without necessary redactions to account for one or more governmental privileges.

         On September 6, 2019, the Court issued an order resolving the parties' disputes as to defendants' assertions of the law enforcement and deliberative process privileges for a representative sample of 57 documents. In light of that order, defendants agreed to re-review approximately 115 documents that include materials the government claims are privileged. The parties disagree about the timing and nature of this re-review. The Court resolves these disputes as follows:

1. Defendants will complete their re-review of the approximately 115 agreed documents for production to plaintiffs by October 23, 2019.[1] The review will be comprehensive and not piecemeal. For each document, defendants shall advise plaintiffs of any and all claims of privilege or of any other reason, including classification, that the document cannot be produced to plaintiffs in unredacted form.
2. If disputes remain, the parties may present those disputes to the Court for resolution using the discovery dispute resolution procedures in the Court's Standing Order for Civil Cases, including the timing procedures of subsection (b), except that if the parties require more than 1, 500 words for their respective positions, they may stipulate to greater word limits. Unredacted copies of disputed documents shall be submitted for in camera review.[2] In addition, defendants shall present their privilege claims so that the Court may easily identify and rule upon each discrete privilege claim within a document. Any disputes arising out of defendants' attempt to claw back documents are subject to the procedure set out in the Court's October 8, 2019 order (Dkt. No. 249).

         B. Depositions of Defendants' Representatives

         The parties have agreed that defendants will provide representatives to testify in deposition regarding certain topics pursuant to Rule 30(b)(6). The parties dispute whether the depositions may be conducted in two phases, and they also dispute the timing of the depositions. The Court resolves these disputes as follows:

1. Plaintiffs may notice defendants' depositions on a subset of the agreed topics (e.g., topics addressed to document discovery only). The parties must confer regarding dates for the depositions, but the depositions shall take place no later than November 15, 2019 unless the parties mutually agree otherwise.
2. Plaintiffs may notice defendants' depositions on the remaining agreed topics at some later date (e.g., topics addressed to the nature of the alleged change in agency policy). However, plaintiffs may not re-notice for further deposition those topics on which plaintiffs have already obtained testimony from defendants' representatives, absent leave of the Court for good cause shown or stipulation of the parties.
3. Nothing in this order precludes plaintiffs from serving requests for admissions instead of or in addition to taking deposition testimony.

         C. Protective ...


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