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Stone v. Trump

United States District Court, D. Maryland

September 3, 2019

BROCK STONE, et al., Plaintiffs,
v.
DONALD J. TRUMP, et al., Defendants.

          MEMORANDUM OPINION

          GEORGE L. RUSSELL, III UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Plaintiffs'[1] Motion to Lift Stay of Compliance with the Magistrate Judge's Memorandum Opinion and Order (ECF No. 239) and Defendants'[2] Motion for Reconsideration, Motion to Continue Stay of Compliance with the Magistrate Judge's Memorandum Opinion and Order, and Request for an Administrative Stay (ECF No. 257). The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court will grant in part and deny in part Defendants' Motion and deny Plaintiffs' Motion as moot.

         I. BACKGROUND[3]

         On May 4, 2018, the Court referred this case to a United States Magistrate Judge (“USMJ”) for all discovery. (ECF No. 152). On June 15, 2018, Plaintiffs filed a Motion to Compel Supplemental Interrogatory Answers and Production (“Motion to Compel”). (ECF No. 177-1). In their Motion to Compel, Plaintiffs sought deliberative materials regarding: (1) President Trump's July 2017 Tweets and the August 2017 Memorandum[4]; (2) the Panel; and (3) the Implementation Plan and President Trump's acceptance of the Implementation Plan. (Pls.' Mot. Compel at 1, ECF No. 177-1). At the same time, Plaintiffs filed a Motion for a Judicial Determination of Privilege Claims, (ECF No. 178) (sealed), regarding a PowerPoint presentation that the Army inadvertently produced and Defendants sought to claw back on the theory that it is protected by deliberative process privilege, (Defs.' Objs. Mag. Judge's Mem. Op. & Order at 5, ECF No. 209). On June 18, 2018, Defendants filed a Motion for a Protective Order to preclude discovery directed at President Trump and other sources concerning presidential communications and deliberations. (ECF No. 179).

         On August 14, 2018, the USMJ issued a Memorandum Opinion and Order granting Plaintiffs' Motion to Compel, granting in part and denying in part Defendants' Motion for a Protective Order, and dismissing as moot Plaintiffs' Motion for Judicial Determination of Privilege. (Aug. 14, 2018 Mem. Op. [“USMJ Mem. Op.”] at 11, ECF No. 204; Aug. 14, 2018 Order, ECF No. 205). The USMJ granted Plaintiffs' Motion to Compel because there were no justifiable reasons to stay discovery. (USMJ Mem. Op. at 4). Applying In re Subpoena Duces Tecum Served on Office of Comptroller of the Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998), the USMJ concluded that deliberative process privilege does not apply in this case given that government intent “is at the very heart of this litigation.” (USMJ Mem. Op. at 5-6). The USMJ dismissed Plaintiffs' Motion for Judicial Determination of Privilege Claims as moot because the USMJ determined that deliberative process privilege does not apply to Plaintiffs' discovery requests. (Id. at 11). Finally, balancing deference to the Executive with Plaintiffs' need for discovery, the USMJ granted Defendants' Motion for a Protective Order as to the President but not as to individuals with whom the President communicates. (Id. at 9-11).

         The USMJ ordered Defendants to produce:

(1) Deliberative materials regarding the President's July 2017 [T]weets and August 2017 Memorandum;
(2) Deliberative materials regarding the activities of the [Panel] and its working groups . . . tasked with developing a plan to study and implement the President's decision; and
(3) Deliberative materials regarding the DoD's [I]mplementation Plan and the President's acceptance of the Plan in his March 23[, 2018] Memorandum, including any participation or interference in that process by anti-transgender [activists] and lobbyists.

(Id. at 3). The USMJ also stayed discovery directed at President Trump pending the Court's resolution of Defendants' Motion to Dismiss President Trump as a party to this case. (Id. at 10-11).

         On August 17, 2018, Defendants filed a Motion to Stay Compliance with the Magistrate Judge's Discovery Order. (ECF No. 208). In their Motion, Defendants requested that the Court stay compliance with the USMJ's August 14, 2018 Order pending the Court's resolution of their Objections to the Order. (Defs.' Mot. Stay Compliance Mag. Judge Mem. Op. & Order at 1, ECF No. 208). Defendants filed their Objections to the Magistrate Judge's Discovery Order on August 28, 2018. (ECF No. 209).

         On August 30, 2018, the parties filed a Joint Motion to Suspend Certain Deadlines. (ECF No. 210). In the Motion, the parties requested that the Court suspend the discovery deadline because of the pending Motions before the Court. (Jt. Mot. Suspend Certain Deadlines at 2, ECF No. 210). On September 10, 2018, the Court granted the parties' Motion and suspended the discovery deadline, discovery-related motions deadline, and dispositive pre-trial motions deadline. (Sept. 10, 2018 Order, ECF No. 213).

         On November 30, 2018, the Court issued a Memorandum Opinion and Order overruling Defendants' Objections. (ECF Nos. 227, 228). With regard to Defendants' Objections related to deliberative process privilege, the Court concluded that the USMJ did not act contrary to law when he applied In re Subpoena Duces Tecum to determine that the “deliberative process privilege does not apply to the documents Plaintiffs requested because the government's intent is at the heart of the issue in this case.” (Nov. 30, 2018 Mem. Op. at 15-16, ECF No. 227). The Court further concluded that even if the USMJ had applied the balancing test from Cipollone v. Liggett Group Inc., 812 F.2d 1400 (table), 1987 WL 36515 (4th Cir. 1987) (per curiam), the USMJ “would have reached the same conclusion.” (Id. at 16). The Court also rejected Defendants' contention, based on Trump v. Hawaii, 138 S.Ct. 2392 (2018), that the Cipollone balancing test did not weigh in favor of disclosing the documents because government intent is not at issue. (Id.). The Court noted that Trump v. Hawaii involved a facially neutral policy, whereas this case involves a facially discriminatory policy. (Id. at 16-17). As a result, the Court concluded that the deference afforded to the government policy in Trump v. Hawaii did not apply in this case. (Id. at 17). The Court overruled Defendants' Objections related to the clawback of an inadvertently produced PowerPoint document because it affirmed the USMJ's determination that deliberative process privilege did not apply to Plaintiffs' requested discovery. (Id.).

         The Court also overruled Defendants' Objections to the USMJ's factual findings that: (1) the Panel would not have existed but for President Trump's Tweets; (2) the circumstances surrounding 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 Implementation Plan bans transgender persons from military service. (Id. at 9). The Court concluded that these findings of fact were reasonable and supported by evidence in the record. (Id. at 9-10).[5]

         Although the Court overruled Defendants' Objections and affirmed the USMJ's August 14, 2018 Order, it stayed enforcement of the Order pending a decision from the United States Court of Appeals for the Ninth Circuit in In re Donald J. Trump, No. 18-72159 (9th Cir.), which sought a writ of mandamus in Karnoski v. Trump, No. 17-cv-01297 (W.D.Wash.), because that case involved similar discovery issues. (Id.).

         On January 31, 2019, Plaintiffs filed their Motion to Lift Stay of Compliance with the Magistrate Judge's Memorandum Opinion and Order. (ECF No. 239). Defendants filed their Opposition on February 14, 2019. (ECF No. ...


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