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3 -------------------------------X
: 18-CV-01599 (WFK)
5 Plaintiff, :
6 v. :
: August 21, 2018
7 DONALD TRUMP, et al., : Brooklyn, New York
8 Defendants. :
9 -------------------------------X




14 For the Plaintiff: GEOFFREY PIPOLY, ESQ.

Mayer Brown LLP
15 71 S. Wacker Drive
Chicago, Illinois 60606

17 For the Defendants: JOSEPH MARUTOLLO, ESQ.

US Attorney’s Office
18 271 Cadman Plaza East
Brooklyn, New York 11201


21 Court Transcriber: SHARI RIEMER, CET-805

TypeWrite Word Processing Service
22 211 N. Milton Road
Saratoga Springs, New York 12866



Proceedings recorded by electronic sound recording,

transcript produced by transcription service

1 (Proceedings began at 11:10 a.m.)

2 THE CLERK: Civil Cause for a Motion Hearing, 18-CV-

3 1599, Saget, et al., v. Trump, et al.

4 Will counsel please state your appearances for the

5 record?

6 MR. PIPOLY: Geoffrey N. Pipoly of Mayer Brown, LLP

7 for the plaintiffs.

8 MR. MARUTOLLO: Good morning, Your Honor. Joseph

9 Marutollo for the Government.

10 THE CLERK: The Honorable Judge Tiscione presiding.

11 THE COURT: I reviewed all of the papers filed by

12 the parties in anticipation of this motion.

13 Mr. Pipoly, it’s your motion. Do you want to say

14 anything or do you want me to just ask questions?

15 MR. PIPOLY: Certainly. Before we dive into the

16 merits of the argument I think it’s worth remembering I think

17 how we got here which is at the pre-motion conference I think

18 Judge Kuntz was very explicit that he did not intend for

19 discovery in this case to be stayed and when we -- both

20 attorneys, Mr. Marutollo and I probed him further about that

21 about exactly what the scope of that discovery would be, he

22 said that Judge Kuntz ruled that those issues should be raised

23 in this Court and that’s why we’re here today.

24 So I recognize that the Court is in sort of a

25 strange position because there haven’t been any dispositive --


1 well, there’s been a dispositive motion filed but not yet

2 ruled on.

3 But it is worth noting from the outset that Judge

4 Kuntz at the pre-motion conference did not stay discovery in

5 this case and all that the plaintiffs had received so far is

6 199 pages that the Government calls the administrative record.

7 THE COURT: This obviously puts me in an odd

8 position because ordinarily I’m fully supportive of the

9 decision not to stay discovery during motions. The problem is

10 most cases don’t involve the kind of question about whether

11 discovery should even be permitted in a case because the

12 federal rules apply and it’s fairly -- you can limit some

13 discovery early on in the case but it’s fairly standard what

14 the rules are.

15 But this case involves a more fundamental question

16 about whether or not even discovery is appropriate given --

17 putting aside the motion to dismiss but just the nature of the

18 case implicates a question about whether or not any discovery

19 beyond the administrative record is appropriate.

20 So I’m somewhat hobbled by the fact that no

21 motion -- no determination has been made on the motion to

22 dismiss. In some ways, depending on the standards that apply,

23 I’m almost in a position of having to make a merits based

24 decision on the claims almost parallel to the District Court

25 ruling on the same issues.


1 MR. PIPOLY: I hope to un-hobble the Court today.

2 One thing that might help the Court feel more comfortable in

3 granting the fulsome discovery that plaintiffs are entitled to

4 is the notion that you wouldn’t be the first to do it. The

5 District Court in Ramos has not only ordered fulsome document

6 discovery beyond the administrative record, several

7 administration officials from USCIS and elsewhere have already

8 been deposed in that case and Judge Kim has not only done

9 those things but has also ruled that the documents that were

10 withheld under the deliberative process privilege, some of

11 those should be produced as well.

12 So certainly this is -- and I think that just goes

13 to reinforce --

14 THE COURT: Although in that case the District Court

15 already ruled on the motion to dismiss. So it’s a little bit

16 different.

17 MR. PIPOLY: I would -- the claims in those cases

18 largely -- the claims -- the underlying claims in those cases

19 are similar to the ones that are raised here.

20 So the two -- with regard to the Court’s point about

21 this sort of having to make a merit’s challenge, I think that

22 there are really two points worth making here. In order to

23 get discovery the plaintiffs under the APA simply have to show

24 and have shown that the decision to terminate TPS was

25 preordained by the administration from the moment it came in


1 and was done without regard for the non discretionary

2 statutory factors that Congress set forth that the

3 administration was required to follow when terminating or

4 renewing TPS. We are -- we have not only alleged those things

5 plausibly but we’ve attached documents that show that the --

6 the administration officials from USCIS, the State Department

7 and elsewhere were disregarding the recommendations of line

8 officers, career civil servants, folks whose job it is to help

9 make these determinations. These are data points that

10 plaintiffs can and have pointed to that the decision was

11 preordained.

12 Now, notwithstanding the motivation of the

13 Government and of the decision makers, the fact that the

14 decision was preordained and divorced from the statutory

15 requirements is enough to get extra record discovery under the

16 APA.

17 Notwithstanding that, that sort of brings me to our

18 second group of claims which is the constitutional claims.

19 The fact of the matter, and as we noted in our reply, these

20 claims can stand on their own. You can look to the TPS

21 challenge in the NAACP case in Maryland as evidence of the

22 fact that these claims can be brought on their own and in that

23 case there was no APA challenge.

24 Acknowledging the reality that often times litigants

25 will sort of append and attach a facially meritless due


1 process claim as a mechanism for getting around the APA’s

2 discovery limitations, that’s not what happened here and

3 that’s not what we did. We brought an independent equal

4 protection and due process claim that could stand on their own

5 and on those constitutional claims alone we’re entitled to

6 discovery beyond the 199 pages that the Government calls the

7 administrative record.

8 So those are really the two points underlying the

9 motion here is that number one, the -- on the APA side we

10 plausibly alleged supportive documentary evidence that the

11 decision was preordained, made without regard to the statute

12 notwithstanding what the motivation for it was and that on the

13 constitutional side obviously we have to show the motivation

14 of the Government for the constitutional claims, and therefore

15 we’re entitled to discovery on those claims regardless.

16 MR. MARUTOLLO: Your Honor, first, with respect to

17 the issue of the stay of discovery, District Judge Kuntz did

18 indicate that discovery should not be stayed but he did defer

19 to Your Honor about the scope of discovery. I think in this

20 situation where the Government has argued that this Court

21 lacks subject matter jurisdiction over the entire matter, and

22 we’ve already filed our dispositive motion, I think it

23 suffices that we have produced an administrative record which

24 is consistent with the judge’s order.

25 THE COURT: Let me ask you something. This isn’t


1 the only case filed on this issue, is it?

2 MR. MARUTOLLO: It’s not, Your Honor.

3 THE COURT: Have any of them been dismissed?

4 MR. MARUTOLLO: Well, Your Honor, each are at a

5 different stage. There have been -- my understanding is that

6 I believe there are --

7 THE COURT: That’s a no; correct?

8 MR. MARUTOLLO: Well, but, Your Honor, there’s also

9 only been I believe two rulings out of the five cases so far.

10 THE COURT: Okay.

11 MR. MARUTOLLO: Respectfully, these are cases that

12 are brought by plaintiffs with certain districts in mind and I

13 think there are -- there are five cases that are pending but

14 all -- Your Honor, I think it’s important to note these cases

15 all raise -- they’re similar issues. Obviously they’re

16 related to TPS but they’re not necessarily limited to Haiti.

17 They’re not necessarily limited to the issues that are

18 presented in this case.

19 So we would argue just first, right off the bat,

20 that in terms of complying with Judge Kuntz’s order the

21 production of the administrative record we think suffices. We

22 don’t think that the plaintiffs have met their significant

23 evidentiary burden of establishing any of the rare exceptions

24 to the record rule in this case.

25 Your Honor, the plaintiff’s counsel spoke about the


1 administrative record and whether or not it’s complete. We

2 would submit that it is complete. There is a strong

3 presumption of regularity in terms of what the agency decision

4 maker -- in terms of how that record is compiled and here --

5 just to note, as we stated in our --

6 THE COURT: How does that presumption of regularity

7 jive with the fact that you have the President of the United

8 States making clearly discriminatory comments about the group

9 that is later being -- having their TPS --

10 MR. MARUTOLLO: Well, Your Honor, first, there are

11 two allege comments that the plaintiffs cite to. They cite to

12 an alleged comment --

13 THE COURT: I’m not saying he said them or not. I’m

14 just -- that’s the allegation.

15 MR. MARUTOLLO: Understood, Your Honor. I think

16 first with respect to those alleged statements, one the

17 plaintiff’s cite is from the summer prior to the TPS decision

18 in this case. One is from after the decision in the case. We

19 think really the decision after the fact is irrelevant to the

20 underlying decision.

21 THE COURT: Not if it goes to the discriminatory

22 animus.

23 MR. MARUTOLLO: Well, Your Honor, we would point out

24 that the --

25 THE COURT: If I make discriminatory comments after


1 the fact that might not be -- you’re talking about animus.

2 You’re not talking about -- talking about somebody -- if

3 somebody makes discriminatory comments after firing somebody

4 clearly can go towards evidence that the motivation for firing

5 somebody was because of discrimination even if the comments

6 were made after the fact.

7 MR. MARUTOLLO: Well --

8 THE COURT: Because it goes to their -- it goes to

9 their state of mind. It goes to their animus. Obviously the

10 President was not the one who made the administrative decision

11 here but it just goes to the point of what was actually

12 considered by the agency when they made this decision. It’s

13 very easy to whitewash things and look at only the positive at

14 least in terms of what the administrator’s decision was, to

15 look at only the things that support the decision and say

16 well, that’s the administrative record, that’s what we looked

17 at and we’re just going to ignore everything else.

18 MR. MARUTOLLO: Well, Your Honor, I think in this

19 situation, and Your Honor is correct, the final decision maker

20 here on this decision was the acting secretary, Acting

21 Secretary Duke of DHS. But -- and a lot of these racial

22 animus points go towards the merits of our argument that we’re

23 making in our dispositive motion.

24 But looking at the record itself I think it’s

25 important to note that the record contains opinions that are


1 not consistent with the ultimate determination made. It

2 contains materials from mayors, senators, evangelical

3 Christian leaders. There are conflicting opinions and

4 ultimately the final agency decision maker here, Secretary

5 Duke, made her determination. And at this stage the test is

6 essentially whether or not -- and our dispositive motion,

7 whether or not based on the -- and assuming that there’s

8 subject matter jurisdiction, whether or not this is an

9 arbitrary and capricious decision or a decision that violates

10 the constitution under 706(2)(b), 5 U.S.C. 706(2)(b).

11 At this stage if the plaintiffs argue that the

12 administrative record is faulty or that there’s issues with

13 validity of the record their remedy is to then file a motion

14 for summary judgment.

15 THE COURT: Well, but there’s two separate issues.

16 The first issue is did the agency not have a sufficient record

17 to make a decision that was fully supported. In other words,

18 did they just not do enough before they made a decision. And

19 if that’s the case you’re right, then the remedy there is to

20 file the merits brief and just say look, they didn’t do

21 enough, they didn’t have a full enough record to rule on it.

22 The allegation, however, is that there’s stuff

23 that’s deliberately being left out of the record and that when

24 they made their decision it was based on stuff that’s not in

25 the record and stuff that is an improper basis to be making a


1 decision on.

2 So there are two separate issues. I agree with you

3 that if this is a case where it was just as simple as -- a job

4 of simply not doing enough and not justifying the decision and

5 having an administrative record that just wasn’t sufficient to

6 support the decision that would be one thing but the

7 allegation at least is that the administrative record is

8 deliberately curtailed and that the reason that it’s

9 deliberately curtailed is because it’s a pretext for the real

10 reason the decision was made and that it was a discriminatory

11 reason.

12 MR. MARUTOLLO: But, Your Honor, the Government does

13 not think that the plaintiffs have shown enough to get to that

14 point. There needs to be concrete evidence and the evidence

15 cited by the plaintiffs --

16 THE COURT: Well, here’s what I’m going to say. I

17 think from where I’m looking at it I’m not sure that they’ve

18 met that strong showing for extra record evidence at this

19 stage either and frankly I’m a little reluctant to allow that

20 type of discovery to proceed at this point while there’s a

21 pending motion to dismiss.

22 On the other hand, I think they have made the

23 showing to show that the administrative record is incomplete.

24 I think at a minimum there are other things that should have

25 been included in the administrative record, things that were


1 relied on directly or indirectly by the agency that should

2 have been part of the record.

3 MR. PIPOLY: Your Honor, to that point can I respond

4 to a couple of points that have been made?


6 MR. PIPOLY: Just -- first of all, as far as -- as

7 far as the notion -- and again this gets us sort of back into

8 the overlap between this motion and merits territory and I

9 don’t want to go too far down that road, but I will note that

10 I disagree with the notion that because there’s different

11 cases that the legal issue about the jurisdictional bar is any

12 different in any of these cases. That is the same pure issue

13 of law, and the Government is 0 and 2 on those motions.

14 With respect to the venue that has been chosen --

15 THE COURT: That might be true but none of those

16 decisions are binding on this Court.

17 MR. PIPOLY: I understand.

18 THE COURT: So theoretically --

19 MR. PIPOLY: I understand.

20 THE COURT: -- it doesn’t matter.

21 MR. PIPOLY: I just want to get on the record that

22 the reason -- I can’t speak to the other cases. The reason

23 that we chose to file here had to do with the fact that

24 Brooklyn and the Eastern District of New York has a

25 significant number of Haitians that are subject to TPS and so


1 with respect -- with respect to why we’re here in this Court

2 and the notion that these were strategically picked for some

3 reason I mean that’s speculative.

4 THE COURT: I mean frankly that’s pretty much the

5 case in any of these big class action cases. There’s always

6 strategic thinking that goes into where the cases are filed.

7 So there’s nothing wrong with that.

8 MR. PIPOLY: As far as -- and I think Your Honor hit

9 I think on precisely the issue in this case which is that this

10 is not -- and I certainly hope came through in the plaintiff’s

11 papers, is this is not a typical challenge to an agency

12 decision. This is not a case where we’re saying that the

13 Federal Communications Commission should have issued a

14 broadcast license but didn’t. This is -- or that the EPA had

15 an interpretation of a regulation that we disagree with.

16 As you pointed out, this is a case in which we

17 allege that the statute that Congress held -- that Congress

18 set forth non discretionary factors for was not followed and

19 separately have alleged that the reason it was not followed

20 was because the President of the United States harbors a

21 discriminatory animus towards Haitians and other immigrations

22 of color that infected this entire decision making process and

23 therefore the record itself is pretext however it’s defined.

24 The notion, and the Government made this argument in

25 its merits brief and it alluded to it just now, is the notion


1 that because the Secretary of Homeland Security is the

2 decision maker that somehow the President’s statements don’t

3 matter. To me, anyway, that just strikes me as very bizarre.

4 I think of this as sort of as a Cat’s Paw but in reverse. In

5 the Cat’s Paw case you’ve got an employer who is relying on

6 the statements of a biased middle manager and in those cases

7 we still allowed the ultimate decision maker even though he’s

8 a neutral, facially neutral to -- for plaintiffs to recover

9 against them because the bias of the middle manager infected

10 the decision making process because the ultimate employer

11 relied on those statements.

12 To me the incentives seem ramped up to 11 in the

13 case where the person who is the ultimate decision maker is --

14 serves at the pleasure of the person making these --

15 THE COURT: I was going to say serves at the whim of

16 the person who’s making the --

17 MR. PIPOLY: Right. So I mean the notion that you

18 can somehow cordon off the President’s statements about

19 Haitians which as the Government just pointed out happened

20 before the TPS termination decision here was made just strikes

21 me as all the more reason why we should be able to probe the

22 true motivations of the actual decision makers. Was it

23 because of the President’s bias or was it because of some

24 other reason. We already have good reasons to believe that it

25 had nothing to do with the statutory basis set forth.


1 THE COURT: Well, some of the things that you

2 mention -- explain to me what you think should have been in

3 the administrative record that wasn’t specifically because I’m

4 not sure that emails and things of that nature would ever be

5 in the administrative record. But are there specific I guess

6 materials that you can point to that you think should have

7 been part of the administrative record?

8 MR. PIPOLY: It’s difficult to say.

9 THE COURT: Categories of documents. I know it’s

10 hard to say in the abstract but you do have some records from

11 the FOIA searches that --

12 MR. PIPOLY: We do. We do. So we --

13 THE COURT: It should at least put you on notice of

14 the existence of other things that may be -- are missing from

15 the record.

16 MR. PIPOLY: Certainly. And I don’t want to commit

17 an exclusive list here and now.

18 THE COURT: No, but at least give me some idea of

19 what you know about that you think should have been part of

20 the record.

21 MR. PIPOLY: Sure. So -- well, I think emails to

22 the extent that they were relied on indirectly in making the

23 decision I think certainly are relevant.

24 THE COURT: But those emails don’t strike me as the

25 kind of thing that would be relied on in a decision. There


1 are emails that talk about -- for example, the one email that

2 you mentioned where they’re asking to compile a report of

3 welfare benefits and the criminal records of the Haitian TPS.

4 I mean that email to me indicates okay, there might be a

5 report out there that was relied on. I don’t know that that

6 email itself would be something that should be part of the

7 administrative record.

8 MR. PIPOLY: Understood. I would just push back on

9 the notion that emails are per se never admissible --

10 THE COURT: No, no --

11 MR. PIPOLY: -- to the extent that they are

12 relied on.

13 THE COURT: You’re right. If it’s something that

14 contains factual information or recommendation or something

15 like that that might be relied upon by the decision maker and

16 therefore should have been part of the administrative record

17 but that kind of an email I don’t think is what would be --

18 even in a broad view of what the administrative record is I’m

19 not sure that that email would constitute part of the

20 administrative record.

21 MR. PIPOLY: Sure.

22 THE COURT: Now, if there was an underlying report

23 that was actually generated that was considered that would be

24 something that I would expect to be in the record.

25 MR. PIPOLY: Sure. And I think -- as a general


1 matter I think I would say USCIS reports potential drafts

2 thereof to the extent that we can probe the decision -- the

3 decision making process. Obviously where exactly that --

4 because essentially, and you just alluded to this, Your Honor,

5 is that it starts with a request that turns into

6 communications that eventually morphs into some sort of final

7 work product that is relied on by the decision maker and where

8 exactly you draw the line is why we’re here.

9 I think that certainly given the nature of

10 plaintiff’s allegations we are interested in getting as much

11 of the materials that were indirectly relied on that were

12 omitted from the administrative record. So I -- I suppose I’d

13 have to think more about exactly particular categories of

14 documents but certainly USCIS memos we’re very interested in

15 seeing, including drafts those memos.

16 I’m interested in seeing the recommendations from

17 the State Department that went to Secretary Tillerson. I’m

18 interested in seeing any communications the White House that

19 went into -- that were -- that made recommendations or

20 attempted to pressure the agency because I think that you

21 would -- I think you’d be hard pressed to argue that a

22 communication from the White House to the agency regarding

23 this was not something that they indirectly considered when

24 making this decision.

25 So I mean certainly there’s this sort of mundane --


1 mundane is not the right word. But the sort of routine

2 ministerial things that go into these types of decisions but

3 given the nature of the allegations in this case that the

4 decision was preordained as a result of campaign promises or

5 however you want to characterize them about what we’re going

6 to do with immigrants once we get elected we already know

7 from -- for example, from some of the other cases and the

8 discovery that’s happened there that the White House was

9 reaching out on a regular basis. I’m interested in any work

10 product that was -- any written work product that resulted

11 from that.

12 Again, I’m reserving the right to sort of meet and

13 confer and discuss those earlier off the top of my head.

14 Those are the sort of categories of documents that I can think

15 of.

16 MR. MARUTOLLO: But, Your Honor, I think

17 respectfully this shows -- this -- as plaintiff’s counsel just

18 stated shows the entire problem here. As the Court found in

19 the Comprehensive Cmty case, common sense dictates that the

20 agency determines what constitutes the whole record because

21 it’s the agency that did the considering. Therefore they’re -

22 - they’re in the position to actually to indicate which of

23 these materials was actually before it, which was directly or

24 indirectly considered.

25 Providing, for instance, drafts of documents that


1 maybe did not get up the pipeline that never were before

2 Acting Secretary Duke wouldn’t make any sense in terms of

3 informing her decision.

4 Similarly, documents that came from Sec -- the

5 recommendations are made to Secretary of State Tillerson that

6 never got to Secretary Duke would seem to be totally

7 irrelevant because Secretary Duke did review Secretary

8 Tillerson’s documents which are in the record, did review the

9 report attached to that recommendation, which is in the

10 record, and in terms of White House communications we do list

11 in our privilege log a number of communications. We do argue

12 there’s deliberative process.

13 But having said that, Your Honor, and in an effort

14 to be as transparent as possible, my understanding is that in

15 the Ramos case where there is a privilege log and where the

16 judge has ordered that the deliberative process documents

17 marked that way attached to the privilege log should be

18 produced we would certainly produce those documents once --

19 I’m not sure if they’ve been produced yet in Ramos or when the

20 deadline is but we would certainly produce those documents and

21 that would certainly suffice in terms of any deliberative

22 documents that we say that the Secretary --

23 THE COURT: Is there anything that -- let me ask you

24 this. Is there anything that is not being produced in Ramos

25 that is specific to this case? Because you mention that the


1 judge in Ramos has already allowed discovery and has even

2 allowed documents to be disclosed notwithstanding the

3 deliberative process argument by the Government. So I mean

4 aren’t you going to get all this stuff anyway in the Ramos

5 case?

6 MR. PIPOLY: Presumably once it’s produced.

7 THE COURT: What’s the harm in reproducing it in

8 this case?

9 MR. MARUTOLLO: Well, Your Honor, I think just --

10 THE COURT: As a practical matter.

11 MR. MARUTOLLO: As a practical matter I think the --

12 first, Ramos deals with a countries so I think we would have

13 to sort of limit it to Haiti,

14 THE COURT: Well, you can certainly limit it to

15 Haiti because I don’t think the other countries would be

16 relevant but --

17 MR. MARUTOLLO: Well, Your Honor, I think once --

18 well, let me take a step back. I think in terms of the record

19 itself, I mean there -- the Government doesn’t have any

20 objection to producing the documents we originally marked as

21 privileged for the deliberative process privilege that have

22 now been ordered to be produced in Ramos in this case. So I

23 don’t think there’s any dispute there.

24 In terms of other materials, some of those materials

25 are responsive to discovery requests. I’m not sure of the


1 status in terms of whether there are objection to some of

2 those discovery requests that are outstanding or not in Ramos.

3 In terms of deposition transcripts and the like, we

4 would still argue obviously that this case should be limited

5 to the record but to the extent that those transcripts are out

6 there and --

7 THE COURT: Depositions that have already been done

8 that doesn’t mean that they’ll necessarily be able to use them

9 in this case. I mean the Court would still have to make a

10 determination that you’re allowed to supplement the record to

11 include those extra record materials.

12 MR. MARUTOLLO: Right. And certainly -- assuming

13 that there’s --

14 THE COURT: Which as I said is not a determination

15 that I’m going to make now until the District Court rules on

16 the motion to dismiss. A) I don’t see any reason why you

17 shouldn’t turn over whatever is being turned over in Ramos

18 anyway.

19 MR. MARUTOLLO: Well, Your Honor, I think we would

20 submit that -- just in terms of --

21 THE COURT: Again, I’m not making an admissibility

22 determination but just as a practical matter to keep this

23 thing moving and -- because Judge Kuntz doesn’t want discovery

24 stayed. I’m willing to at least for the time being hold off

25 on allowing any depositions or further creation of a record


1 because I do think there’s a big distinction between expanding

2 the administrative record with other materials that have

3 already been created by the relevant agencies versus creating

4 new materials such as interrogatories and depositions. I

5 think that’s a step beyond what I’m willing to do at this

6 point.

7 But at least in terms of discovery that’s already

8 been generated or materials that are already out there, I

9 think you should turn them over.

10 MR. MARUTOLLO: Your Honor, I think in terms of the

11 deposition transcripts, I know one issue with some other cases

12 is that since that’s technically the work product of a court

13 reporter the plaintiff may have to pay fees in terms of

14 actually getting the transcripts. I imagine that would be an

15 issue but I just bring that up.

16 THE COURT: I’m sure you won’t mind paying for it.

17 MR. PIPOLY: I certainly won’t mind paying for it.

18 MR. MARUTOLLO: But in terms of the -- in terms of

19 the deposition transcripts and certainly the no longer

20 deliberative process materials I stated earlier, in terms of

21 the discovery responses, Your Honor, I think it may be

22 difficult to parse out what is related to Haiti, what’s not

23 related to Haiti and I think it may create more complications

24 than either side would want here if we suddenly start

25 producing documents that are may be on appeal in the Ninth


1 Circuit from the California case.

2 I think the deliberative process documents attached

3 to the record are fixed documents that we can produce. The

4 deposition transcripts are the same. Perhaps we could revisit

5 later depending on how things work out I guess with our

6 dispositive motion the actual ongoing productions and

7 potential appeals that are going on in the California case.

8 THE COURT: Documents and materials that already

9 exist that are being produced in Ramos should be produced in

10 this case as well. That means if there’s a report that’s

11 generated by an agency that’s being produced you should turn

12 that over.

13 Interrogatory responses, if you can easily take out

14 the stuff that’s relevant to Haiti that’s fine. But if it’s a

15 real issue see if you can’t work it out amongst yourselves. I

16 don’t think you really want a whole bunch of irrelevant stuff.

17 On the other hand, if you’re already producing it anyway I

18 don’t see what the problem is to produce it again.

19 MR. MARUTOLLO: Your Honor, just to clarify.

20 THE COURT: You can keep it -- obviously you can

21 keep this all subject to a confidentiality order and for

22 purposes of this litigation only. So it’s already out there.

23 MR. PIPOLY: We would certainly be amenable to that.

24 MR. MARUTOLLO: Your Honor, just to clarify. With

25 respect to the --I understand with the interrogatory responses


1 but in terms of the responses to the document requests, would

2 those also be limited to the extent possible to Haiti?

3 THE COURT: Yes, if you can easily differentiate it

4 out. In other words, if for example, if there’s multiple

5 other countries involved and one of the documents is a country

6 report for a country other than Haiti I don’t think that’s

7 relevant to this case.

8 MR. MARUTOLLO: Also, Your Honor, just for

9 clarification. To the extent -- I’m honestly not aware of the

10 current deadlines in the Ramos case but to the extent there’s

11 documents are produced, would this be the documents as of

12 today or is it a rolling kind of production that Your Honor is

13 envisioning?

14 THE COURT: I mean as a practical matter I’m

15 envisioning you just turning over whatever is turned over at

16 Ramos but not generating new stuff in this case until Judge

17 Kuntz rules on the motion to dismiss. So that way we’re

18 making progress on doing some of the discovery but I’m not

19 being in a position of having to make a merits based

20 determination while Judge Kuntz is doing the same.

21 MR. MARUTOLLO: We -- just for the record, we would

22 certainly be willing to enter into a protective order.

23 THE COURT: Yes, I think you should obviously. I’ll

24 let you draft it up and just send it to me for my approval.

25 So just as a practical matter I’m going to grant the


1 motion in part and deny it in part at this time. I’m going to

2 direct defendants to supplement the administrative record or

3 at least produce all documents and materials that the agency

4 directly or indirectly considered including any materials that

5 are being turned over in the Ramos case.

6 MR. PIPOLY: Can I clarify one point on that? That

7 I think Your Honor made this point a few times but I just want

8 to make sure my understanding is correct. As far as the

9 plaintiff’s motion for extra record discovery --

10 THE COURT: I’m denying it right now but without

11 prejudice to renew after the motion to dismiss.

12 MR. PIPOLY: That’s exactly what I wondered. Thank

13 you.

14 [Pause in proceedings.]

15 THE COURT: Have you actually filed the motion to

16 dismiss yet or --

17 MR. MARUTOLLO: We served it -- it’s a bundling

18 rule --

19 THE COURT: You served it but hasn’t been --


21 MR. PIPOLY: That’s sort of local practice around

22 here; correct?

23 THE COURT: It varies from judge to judge. I would

24 probably venture to say the majority of judges in this

25 district do it with the bundling rule but not everyone.


1 MR. PIPOLY: It’s not the way it’s done in Chicago

2 but I have to say I kind of -- I see the merits in it because

3 everything is presented all at once at the end.

4 THE COURT: I like it for practical reasons because

5 frankly especially in a bigger case when you’ve got a lot of

6 supplements to the record having them all in one place on the

7 docket is so much easier because some of these big summary

8 judgment motions get briefed over the course of months and

9 there’s a ton of stuff that gets filed and then you have to go

10 back and look and it’s like -- trying to piece it all together

11 is a real nightmare.

12 MR. PIPOLY: I would imagine.

13 THE COURT: So having like one -- because then you

14 know if it’s -- even if it’s like 30 documents then it’s at

15 least 30 all in a row on the docket then it makes it easier to

16 find.

17 MR. PIPOLY: The motion has been served. Our

18 response is due I believe August 31st and then --

19 MR. MARUTOLLO: And I think our response is due

20 September 21st.

21 MR. PIPOLY: That’s right.

22 MR. MARUTOLLO: Or around that.

23 MR. PIPOLY: That’s right. Although there was an

24 order I think that everything -- well, we can talk off the

25 record but -- so within the next month.


1 MR. MARUTOLLO: Your Honor, I know there’s no court

2 reporter physically in the room but is this conference being

3 transcribed?

4 THE COURT: It’s all taped and then it’s on the

5 record. So you just need to order a transcript.

6 MR. MARUTOLLO: Thank you.

7 THE COURT: Anything further?

8 MR. PIPOLY: No, Your Honor.

9 MR. MARUTOLLO: Thank you, Your Honor.

10 MR. PIPOLY: Thank you, Your Honor.

11 THE COURT: Have a good day.

12 (Proceedings concluded at 11:47 a.m.)

13 * * * * *













1 I certify that the foregoing is a court transcript from

2 an electronic sound recording of the proceedings in the above-

3 entitled matter.

6 Shari Riemer, CET-805

7 Dated: August 21, 2018