United States District Court, D. Maryland
L. RUSSELL, III UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Plaintiffs' Motion to Lift
Stay of Compliance with the Magistrate Judge's Memorandum
Opinion and Order (ECF No. 239) and
Defendants' 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.
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; (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).
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).
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).
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).
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).
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.).
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).
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
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. ...