Stone v. Trump

Citation: 356 F. Supp. 3d 505Docket: Civil Action No. GLR-17-2459

Court: District Court, D. Maryland; November 29, 2018; Federal District Court

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Objections to a Magistrate Judge's order regarding nondispositive pretrial matters are governed by Federal Rule of Civil Procedure 72(a), which requires a district court to review timely objections and modify or set aside parts of the order that are clearly erroneous or contrary to law. The 'clearly erroneous' standard applies to factual findings, while legal conclusions are deemed contrary to law if they lack supporting authority. Courts do not assess whether a finding is the best conclusion but rather whether it is reasonable and supported by evidence. Affirmation of factual findings occurs unless there is a strong conviction of error. Legal determinations by a magistrate are typically subject to plenary review; however, significant deference is given in discovery disputes, making it difficult to overturn a magistrate's nondispositive orders unless there is an abuse of discretion. The 'contrary to law' standard focuses on the existence of legal authority backing the magistrate's conclusion, and differing opinions on legal wisdom do not constitute error. Objections to discovery rulings should not facilitate a complete reexamination of issues already addressed by the magistrate.

Defendants contest three elements of the USMJ's discovery Order: (1) specific factual findings, (2) the approval of Plaintiffs' Motion to Compel alongside the determination of mootness regarding Plaintiffs' Motion for Judicial Determination of Privilege Claims, and (3) the partial denial of the Protective Order. 

Regarding factual findings, Defendants assert that the USMJ's Memorandum Opinion and Order rests on "clearly erroneous" facts. They claim errors in the USMJ's conclusions that (1) the DOD's Panel of Experts was established solely due to President Trump's August 2017 Tweets, (2) the military's readiness and deployability could not have shifted significantly between 2016 and 2018 to justify a new policy, and (3) the new policy prohibits transgender individuals from serving in the military. However, the USMJ's findings are deemed reasonable. Evidence supports the conclusion that the Panel of Experts was initiated because of Trump's Tweets, as the Secretary of Defense's directive for the Panel came after those Tweets. Defendants argue that a review of the transgender service member policy had begun prior to the Tweets, allegedly motivating the Panel's establishment. Plaintiffs counter that this review aimed to evaluate readiness for the Open Service Directive rather than consider its implementation, reinforcing the USMJ's finding that the Panel would not have been created without the influence of Trump's Tweets on the policy change regarding transgender military service.

The USMJ's conclusion that there was no significant change in military readiness and deployability between 2016 and 2018, justifying a new policy, is deemed reasonable given the limited evidence presented. Defendants argue this finding is erroneous, claiming the Open Service Directive was based on restricted external data, while the Panel of Experts relied on the Department of Defense's (DOD) data. Plaintiffs and the USMJ argue that the Open Service Directive was credible as it involved both military leaders and transgender representatives. Defendants must provide more evidence about the Panel of Experts, currently protected under deliberative process privilege, to substantiate their claims of dramatic changes. The USMJ's view that any changes are too minor to necessitate a policy shift stands firm due to insufficient evidence.

Additionally, the USMJ's determination that the Transgender Service Member Ban effectively excludes transgender individuals from military service is upheld. Defendants contend that the Implementation Plan does not constitute a ban based on transgender status but rather on the medical condition of gender dysphoria. The court disagrees, noting that the Implementation Plan explicitly disqualifies individuals who have transitioned and allows only those without a history of gender dysphoria to serve in their biological sex. This policy is seen as discrimination against transgender identity. Furthermore, requiring those who have not transitioned to serve as their biological sex compels them to suppress their transgender identity. The court references Karnoski v. Trump to support this interpretation, affirming that the Ban is fundamentally based on transgender identity. Consequently, the court overrules Defendants' objections concerning the USMJ's factual findings.

Defendants objected to the USMJ's Memorandum Opinion and Order regarding Plaintiffs' Motion to Compel and Motion for Judicial Determination of Privilege Claims on three grounds: (1) discovery motions were decided prematurely while dispositive motions were pending, (2) the USMJ did not apply relevant Supreme Court and Fourth Circuit precedents regarding the deliberative process privilege, and (3) the Motion for Judicial Determination of Privilege Claims is not moot as the privilege should apply. The Court rejected these objections, emphasizing that district courts have broad discretion in managing discovery, including the authority to grant motions to compel based on judicial economy and the progression of cases.

The Court noted that while it is common to stay discovery pending dispositive motions, trial courts maintain wide discretion over the discovery process. The USMJ's decision to grant the Motion to Compel was within legal bounds and justified given the need to expedite case resolution amidst a litigious context. Consequently, the Court overruled Defendants' objections concerning the alleged premature nature of the discovery decisions.

Defendants contest the USMJ's ruling that deliberative process privilege does not cover the documents requested by Plaintiffs, presenting two main arguments. They claim the USMJ failed to apply the Cipollone factors for determining the privilege's applicability and assert that the government's intent is irrelevant due to deference in military policy as established in Trump v. Hawaii. Defendants argue that if intent is not a factor, the privilege should protect the documents, as established in City of Virginia Beach v. U.S. Department of Commerce, which holds that the privilege safeguards documents to promote candid policymaking without fear of discovery.

Deliberative process privilege protects documents containing advisory opinions, recommendations, and deliberations related to governmental decisions, but does not extend to purely factual information unless intertwined with deliberative content. This privilege is not absolute, and courts must balance the public interest in non-disclosure against the need for evidence, considering factors such as the evidence's relevance, availability of alternatives, the government's involvement in the litigation, and the potential impact on open discussions of policies.

Courts have determined that the privilege is inapplicable when a plaintiff's case targets the government’s intent, as seen in various precedents. Here, the USMJ appropriately concluded that the deliberative process privilege does not shield the information sought by Plaintiffs, aligning with the principle that the privilege evaporates when government intent is central to the litigation.

The standard of review for objections to a U.S. Magistrate Judge's (USMJ) ruling evaluates whether there is legal authority supporting the USMJ's decision. In this context, while the Fourth Circuit lacks binding authority on the deliberative process privilege, cases such as *In re Subpoena Duces Tecum* and *Cipollone* provide relevant support for the USMJ's conclusion that the privilege does not apply to the documents requested by Plaintiffs. The USMJ determined that the government's intent is central to the case, and even if the *Cipollone* balancing test were applied, the outcome would remain unchanged. The deliberative evidence sought by Plaintiffs is crucial to understanding the government's policy shift regarding transgender service members and whether it was justified by legitimate interests. Furthermore, alternative evidence on government intent is unavailable, and the government’s role is significant since the Defendants are government officials involved in the implementation of the Transgender Service Member Ban. These factors favor disclosure, outweighing concerns about potential chilling effects on future policymaking.

Defendants argue that the *Cipollone* test does not favor disclosure because government intent is not relevant, citing *Trump v. Hawaii* as establishing deference to military policy. However, Plaintiffs counter that this deference applies only to neutral policies, while the Transgender Service Member Ban is discriminatory. The court will therefore reject Defendants' objections related to deliberative process privilege.

Regarding the inadvertent disclosure of a PowerPoint document, Defendants claim that deliberative process privilege applies and that a judicial determination on this privilege is not moot. However, the USMJ correctly ruled that because deliberative process privilege does not extend to the requested discovery, the attempt to reclaim the PowerPoint document is moot. Consequently, the court will overrule Defendants' objections concerning both the deliberative process privilege and the mootness of the judicial determination of privilege for the PowerPoint document.

Defendants seek to extend the Protective Order to include individuals who communicate with the President, citing separation-of-powers concerns. Plaintiffs clarify they are not currently pursuing information protected by presidential communications privilege but are focused on obtaining deliberative materials. They intend to exhaust this discovery category before potentially challenging the Defendants' claim of privilege. Under Federal Rule of Civil Procedure 26(c)(1), parties can request a protective order to safeguard presidential communications. The precedent set in Cheney v. U.S. Dist. Court for D.C. supports the government's ability to protect such communications, with United States v. Nixon highlighting the broader sensitivity of presidential materials compared to those of ordinary individuals. Although the President has a strong interest in confidentiality, this interest can be overridden by a specific need for evidence, as established in Herbert v. Lando. The USMJ correctly granted the Protective Order solely for the President. The Court clarifies that the scope of the Protective Order includes communications to and from the President, addressing Defendants' concerns about potential motions to compel disclosure of presidential communications in the possession of others. The Court overrules Defendants' objections related to the Protective Order.

Defendants seek to stay compliance with the U.S. Magistrate Judge's (USMJ) order compelling document production, citing a Ninth Circuit stay regarding similar documents protected by deliberative process privilege in the Karnoski case. The Ninth Circuit's decision precludes disclosure of such documents while it considers a petition for writ of mandamus. The defendants argue that enforcing the USMJ's order would lead to the disclosure of many of the same documents currently protected under the deliberative process privilege. 

The Court has the inherent authority to stay proceedings to manage its docket efficiently. It evaluates several factors when considering a stay: the duration of the stay, the hardship on the movant if denied, the burden on the nonmovant, and the promotion of judicial economy. The defendants assert that all four factors favor a stay, particularly since the Karnoski defendants have appealed a similar discovery motion, and a stay would prevent duplicative litigation given the overlap in documents sought in both cases. 

The length of the proposed stay is expected to be brief, as the Ninth Circuit has already heard oral arguments on the matter. While a stay may delay the plaintiffs' litigation, the Court prioritizes consistency with the Ninth Circuit's proceedings. Consequently, the Court grants the defendants' motion to stay the USMJ's order compelling document production until the Ninth Circuit issues its ruling in the Karnoski appeal.

The Court has overruled Defendants' objections to the U.S. Magistrate Judge's (USMJ) Memorandum Opinion and Order and has granted the Defendants' Motion to Stay the USMJ's Order pending the Ninth Circuit's decision on the petition for writ of mandamus. Defendants claim that disclosing deliberative documents could inhibit open discussions regarding military policy; however, they fail to sufficiently argue why this chilling effect is notably significant in this instance or why it outweighs the three Cipollone factors. The USMJ identified that Plaintiffs' Motion for Judicial Determination of Privilege Claims pertains to two documents, while the parties refer to it in relation to one PowerPoint briefing. The Court recognizes that the appeal regarding discovery in In re Donald J. Trump applies to documents covered by both presidential communications privilege and deliberative process privilege. A key issue on appeal concerns the applicability of the deliberative process privilege to documents similar to those sought by the Plaintiffs in the current case.