Tag Archives: James Kurz

Fourth Circuit Pulls No Punches in en banc Ruling on Second Immigration Order

In writing for the majority in the Fourth Circuit’s May 25, 2017 en banc decision on the second Immigration Order, Chief Judge Roger L. Gregory pulled no punches.  The combined opinions of the Court in International Refugee Assistance Project v. Trump (No. 17-1351) span 206 pages, but in the opening paragraph of his majority opinion, the Chief Judge puts a dagger into the Administration’s arguments.  He writes:

The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex Parte Milligan, 71 U.S.  (4 Wall) 2. 120 (1866), remains “a law for rulers and people, equally in war and in peace.”  And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with the vague words of national security, but in context drips with religious intolerance, animus, and discrimination.

There’s no ambiguity in these words.

This Blog Post is the EDVa Update’s seventh posting on the Immigration Orders.   We posted previously on EO-1 back on February 3, 7, and 14, and then on EO-2 on March 20 and 30, and again on April 21.

Thirteen of the Fourth Circuit’s fifteen judges participated in the en banc argument (two judges recused themselves—more on this below).  Chief Judge Gregory’s opinion is joined by six other judges from the court.  There are two concurring opinions (including substantially concurring votes with the majority), and three dissents.

The bottom-line result is that the Fourth Circuit affirmed the Maryland District Court’s nationwide preliminary injunction barring enforcement of Section 2(c) of Executive Order 13780, the second Immigration Order signed by President Trump.   The decision was probably expected, but the vitriolic tenor of the majority opinion is still a surprise.

The same Executive Order is the subject of an injunction entered by a Hawaii federal judge.  That ruling is also on appeal, and a three-judge panel from the Ninth Circuit heard oral argument on May 15, 2017.  That panel is not yet ruled.

On June 1, 2017, the Administration filed in the U.S. Supreme Court its Petition for a Writ of Certiorari and for an emergency stay of the decision.  A stay requires the affirmative votes of five Justices.

Isolation of the Judicial Review Issue

The issue at the core of the Immigration Order battle is whether in the immigration context the federal courts should look behind the facial justifications given for the Executive Order.  The campaign statements of candidate Trump allegedly evidenced an anti-Muslim animus, and post-inauguration statements by the President and his advisors were alleged to confirm this animus.  But it was generally conceded that the obvious flaws in EO-1 were corrected and that EO-2 was facially neutral.

In the briefing and at the oral argument, the Administration aggressively defended the second Immigration Order as facially legitimate, and argued that for this reason the Court should look no further.  The Plaintiffs alleged that the Order’s stated purpose was given in bad faith, and therefore, the federal courts must consider whether the Plaintiffs made the requisite showing of bad faith.

Fourth Circuit’s Majority Analysis

The Fourth Circuit moved to the core issue finding “that Plaintiffs have more than plausibly alleged that EO-2’s stated national security interest was provided in bad faith, as a pretext for its religious purpose.”

The Court then delivered its key finding: “Plaintiffs have made a substantial and affirmative showing that the government’s national security purpose was proffered in bad faith, we [therefore] find it appropriate to apply our long-standing Establishment Clause doctrine.”    Chief Judge Gregory concluded that “the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs.”  The opinion discusses the now familiar evidence from the litigation on both the first Immigration Order and the second Immigration Order.   “[T]he Government’s argument that EO-2’s primary purpose is related to national security . . . is belied by evidence in the record that President Trump issued the first Executive Order without consulting the relevant agencies, . . . and that those agencies only offered a national security rationale after EO-1 was enjoined.´  This leads to the circuit court’s conclusion, “[L]ike the district court, we think the strong evidence that the national security justification for EO-2 was secondary to its primary religious purpose and was offered as more of a ‘litigating position’ than is the actual purpose of EO-2.”

The Chief Judge then again applied the dagger:

The Government has repeatedly asked this Court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the in the name of the Constitution’s separation of powers.  We declined to do so not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review.  The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution.

Judge Keenan offered a concurring opinion, which Judge Thacker joined.  Judge Wynn added his own concurring opinion.

The Three Dissents

Judges Niemeyer, Shedd, and Agree wrote dissenting opinions.

In his dissent, Judge Niemeyer accepted the Administration’s argument that in the immigration context the federal courts should not look beyond the given facially legitimate and bona fide reasons for the Immigration Order.  He concludes, “considering the Order on its face, as we are required to do . . . it is entirely without constitutional fault that the Order was a valid exercise of the President’s authority . . . “Judge Niemeyer would draw the line as barring any further court review.  But after this defense was breached, he is deeply troubled by the majority’s willingness to rely on statements made by candidate Trump during the presidential campaign.

The second dissent, by Judge Schedd, joins with Judge Niemeyer, but adds a practical public interest analysis.  He concludes that “the district court’s public interest analysis misses the mark.”  When weighing the public’s interest, as courts are required to do when considering preliminary injunctions, the national security interests of the nation seem to have been swept under the rug.  Judge Shedd would deny a preliminary injunction on the ground that a balancing of interests favors enforcement of the Order.

Judge Agee joins with the other dissenters, but states as a separate basis for his dissent the questionable standing of the remaining Plaintiffs.  Obviously, if the remaining Plaintiffs have no standing, the Court could end the case.

Judge Wilkinson’s Recusal

Judge J. Harvey Wilkinson recused himself because his son-in-law is the acting Solicitor General who argued the case for the Administration.  While the recusal was legally appropriate, Judge Wilkinson’s absence deprives the decision of the analysis from one of the Fourth Circuit’s thought leaders.  His vote would not have changed the result, but if Judge Wilkinson had participated and had joined the majority, or had provided a concurring opinion, then the Administration might be very hesitant to push this case to the Supreme Court.  On the other hand, a strong dissent from Judge Wilkinson would have added gravitas to the Administration’s arguments.

Summary

The Fourth Circuit’s en banc decision in International Refugee Assistance Project v. Trump does not come as a surprise, based upon the oral argument.  The circuit court perhaps could have decided for the Administration by adopting Judge Trenga’s analysis (see EDVa Update March 30, 2017 Post, EDVa Back in the Immigration Fray: Judge Trenga Provides Qualified Win for President Trump’s New Immigration Order), but it went decidedly the other way in its 10-3 decision.  The surprise is the vitriolic tenor of the majority opinion.   The en banc argument was civil, as is always so in the Fourth Circuit.  But the opinions evidence deep-seated and intense views on the role of the federal courts and on the veracity of the Trump Administration, and certainly the Chief Judge pulled no punches when he wrote for the majority.

The late-breaking news is that the Administration has filed its Petition for Certiorari with the U.S. Supreme Court.  An early vote on the request for a stay (which can come this month before the summer recess) would signal the Court’s leaning on the issues.

Failure to Use Basic Security Protections when Transferring Electronic Files Results in Waiver of Privilege

The Attorney/Client Privilege and Work Product Protection for a video file transferred via Box.com was lost when a client failed to use basic security precautions.  A February 2017 ruling by a Western District of Virginia magistrate judge in Harleysville Insurance Company v. Holding Funeral Home, Inc. (Case No. 1:15-cv-00057) should reinforce a requirement that lawyers use basic security protections (at a minimum) for all potentially privileged or protected communications.

  1. All Too Common Facts

There are no winners in this case. Both sides of the Harleysville Insurance matter were scolded by the magistrate judge.  In this case, an insurance investigator transferred a video file to its company’s counsel using Box.com, a popular file transfer and sharing service. To notify counsel of the transfer, the investigator sent an email that included the hyperlink to the video file.  Months later, the transmission email was produced in discovery.  Defendants’ counsel spotted and then tested the hyperlink, and immediately found the video file.

It appears from the recitation of the facts that the investigator knew how to use the basic transfer capabilities of Box.com but was never trained or instructed to use even the basic security tools. For example, Box.com allows for the creation of secure folders and the controlled access to any folder.

To make matters worse, the video file resided on the Box.com site accessible by the hyperlink for at least six months.

  1. Attorney/Client Privilege and Work Product Protection Waiver

After the access to the Box.com site and the video file were exposed, Harleysville argued that the defense counsel’s access to the file was an improper, unauthorized access to privileged information, and this should require the disqualification of defense counsel. The argument in response was that Harleysville had waived any claim of privilege or confidentiality by placing the information on Box.com without using any of the available security tools.

Attorney/Client Privilege.  The court analyzed the Attorney/Client Privilege waiver separately from the Work Product Protection issue.  Its first finding was that Harleysville waived any claim of Attorney/Client Privilege with regard to the information posted on Box.com.  The court concluded that “the information uploaded to this site was available for viewing by anyone, anywhere who was connected to the Internet and happened upon the site by use of the hyperlink or otherwise.”  The decision continues, “In essence, Harleysville has conceded that its actions were the cyber world equivalent of leaving its claim file on a bench in the public square and telling its counsel where they could find it.”

Attorney/Client Privilege issues in the case were governed by state law. Virginia law provides protection for privileged communications. See Walton v. Mid-Atlantic Spine Specialists, 694 S.E.2d 545. 549 (Va. 2010).  But this privilege is an exception to the general duty to disclose and should be strictly construed.   Continuing, the proponent of the privilege has the burden to establish that the Attorney/Client Privilege applies and that the privilege has not been waived.

The Walton case adopts a multifactor analysis for determining whether the holder of a privilege took reasonable steps to prevent disclosure and also took reasonable steps to rectify the error. The first listed factor is “the reasonableness of precautions to prevent inadvertent disclosures.”  Harleysville’s failure to take any reasonable security precautions doomed its argument from the start.

Work Product Protection.  Work Product Protection in this matter was governed by federal law.  The Harleysville Court built its analysis on the Fourth Circuit’s recognition “that the inadvertent disclosure of attorney work product, even opinion work product, can result in a waiver of its protected status.”  This guidance is tempered by additional appellate authority that holds that a waiver should occur only when an attorney’s or client’s actions are “consistent with a conscious disregard of the advantage that is otherwise protected by the work product rule.”

FRE 502(b) would protect an “inadvertent” disclosure.  But the magistrate judge reasoned the disclosure here could not be inadvertent because the investigator clearly intended to transfer the video file to Box.com.  The Court also looked to Rule 502(b)(2), which provides that the disclosure is not a waiver if the holder of the protection “took reasonable to prevent disclosure.”  Again, Harleysville was in a bad place because it failed to take any steps.

The magistrate judge was obviously troubled not only by the transfer of the video file to Box.com without any security precautions, but also by the client leaving the unprotected file on the Internet site for at least six months.  The conclusion followed that this carelessness waived the Work Product Protection.

  1. Sanctions Imposed against Defense Counsel

In the introduction to this Blog post, we noted that both sides were scolded by the Court.  The investigator’s email that included the hyperlink also included a Confidentiality Notice.  This Notice coupled with the obvious significance of the video file was sufficient for the Court to conclude that the defense counsel should not have downloaded and studied the file. The Court wrote, “by using the hyperlink contained in the email also containing the Confidentiality Notice to access the Box Site, defense counsel should have realized that the Box Site might contain privileged or protected information.”

Harleysville argued that the appropriate sanction should be the disqualification of defense counsel. The magistrate judge agreed that there was an ethical stumble, but concluded that the disqualification was an unnecessarily severe sanction. She did, however, order that defense counsel should bear the parties’ costs in obtaining the Court’s ruling on the matter.

  1. Summary and Conclusions

The immediate instruction from the Harleysville magistrate judge’s ruling is that if a party chooses to use a new technology, it will be held responsible for ensuring that its employees and agents understand how the technology works, and, more importantly, whether the technology allows unwanted access by others to its confidential information.   The Box.com facts present a straightforward set of facts—the basic security features of Box.com would, if utilized, have blocked access to the video file.

The case sets the stage for a broader set of responsibilities associated with newer and more sophisticated security technologies.  For example, now that encryption technologies are readily available, should a disclosure that would have been blocked by the use of even simple encryption be deemed a waiver of privileges?   In Harleysville, the Box.com tools were present but not utilized.  In the encryption example, the tools can be acquired and then used, but as of today are probably not widely installed.  But this could change overnight when courts understand that Microsoft has added encryption options to Outlook.   The Harleysville reasoning likely will make it a requirement, not just a recommendation, that lawyers employ encryption for potentially privileged or protected communications.

H/T to Sharon Nelson and the VSB 2017 TechShow for flagging the significance of the Harleysville Ins. Co. v. Holding Funeral Home, Inc. ruling.

C-Span to Broadcast Live Audio of Today’s 4th Circuit’s Argument on Immigration Executive Order

The Fourth Circuit will hear en banc the oral argument today at 2:30 pm in International Refugee Assistance Project v. Trump.   For the first time (that we know) the Court will allow a live audio broadcast of proceedings.

Earlier this year the Ninth Circuit permitted the live audio broadcast of the argument on the prior Immigration Executive Order.  137,000 people logged in to listen.

Listeners can find the link to the audio feed on the Fourth Circuit’s web page here.  The Court has also advised that an MP3 audio file will be available for download approximately one hour after the argument concludes here.Graphic

The case Orders and Briefs are available online on the site.  In the Case Information section under Public Advisory #4 in the News & Announcements section on Page 1, the Orders, Briefs and more are accessible.

Only 14 of the Court’s 15 active judges will hear the case.  Judge Wilkinson has recused himself because his son-in-law is the Acting Solicitor General.  The even number of participating judges presents the awkward possibility of a tie vote.

For an overview of the issues in the appeal, you should see our earlier EDVa Update posts on the Immigration Order battles here, here, here, here, and here.  But if you only have time to review one post, go our March 30th post.   While the instant appeal addresses an order from the District Court for Maryland, and not Judge’s Trenga’s ruling in Sarsour et al. v. Trump, his opinion provides extremely well-reasoned coverage of the issues.

EDVA Back in the Immigration Fray: Judge Trenga Provides Qualified Win for President Trump’s New Immigration Order

The Eastern District of Virginia continues to influence the national debate over President Trump’s new Executive Order on immigration.  Judge Anthony Trenga of the EDVA offered one of the first wins for the Government when he denied immediate injunctive relief against the new Executive Order.  While Judge Trenga’s opinion was not the first to arrive in the Fourth Circuit, his decision is already appearing in the Government’s appellate briefs.

On Friday, March 24, 2017, in Sarsour et al. v. Trump (Case No. 1:17cv 120), Judge Trenga denied injunctive relief sought by plaintiffs challenging President Trump’s second Executive Order on immigration.  In a 32-page opinion, Judge Trenga provided detailed consideration of the replacement Immigration Executive Order issued by the Administration on March 6, 2017.  After cataloging significant changes in the replacement Order, the judge concluded that it’s not likely that the plaintiffs can prove that the President acted outside his delegated and constitutional authority, and thus the Court denied the emergency relief sought by the plaintiffs.

In our March 20th blog post, we reported on decisions from district courts in Hawaii and Maryland that granted nationwide temporary injunctive relief enjoining critical parts of the replacement Order.  The Government has noticed an appeal of the Maryland order to the Fourth Circuit.  Judge Trenga’s ruling is the first significant decision arguably upholding the constitutionality of the replacement Immigration Executive Order.

Meanwhile in the Fourth Circuit, the Maryland Order is on the hot seat.  The Government has moved to stay that Order and asked for accelerated briefing.  The Fourth Circuit granted the acceleration request on March 23rd, and the Government filed its Opening Brief the following day.  Additionally, 12 states field an amici brief in support of the Government’s position.  The opposition briefs are due on April 14th, and oral argument is scheduled for May 8th in Richmond.  Further, the Fourth Circuit sua sponte has requested the views of the parties whether the May 8th hearing should be en banc before all of the Fourth Circuit judges, instead of the customary three-judge panel.  The deadline for the responses of the parties on this issue is today.

The Replacement Immigration Executive Order

In a previous blog post, we summarized the replacement Order.  The first Executive Order from late-January had obvious facial flaws, including the absence of any national security justification for the critical and controversial “travel ban” provisions.

The replacement Order is, by all measures, facially neutral, and the Administration has provided its statement of justification focused on national security concerns.  The justification includes explanations of why each “travel ban” country poses significant immigration dangers.

Judge Trenga’s Sarsour v. Trump Opinion – Preliminaries

The Sarsour Complaint was filed by a series of individual plaintiffs; unlike the earlier Aziz v. Trump case where the Commonwealth of Virginia assumed the lead in the case, there is no state presence in this case.

The specific substantive claims are similar to those in the Hawaii and Maryland cases.  That is, there is a count based on the Immigration and Naturalization Act (“INA”), a claim grounded in the Establishment Clause, and then Due Process claims.

Judge Trenga sets the stage for his Sarsoar opinion by reminding us that he’s ruling on a TRO/Preliminary Injunction motion.  These are both “extraordinary remedies” which should be “granted only sparingly and in limited circumstances.”  He then outlines the now-familiar four-step analysis from Winter v. Nat.  Res. Def. Council, Inc., 555 U.S. 7 (2008).

The Court’s findings recognize that the plaintiffs have sufficiently shown their standing to challenge the new Executive Order.  The opinion then turns to the INA and APA-based claims. Recall that the earlier Maryland District Court opinion rejected the INA claim as a basis for temporary injunctive relief.  Judge Trenga likewise concluded that the plaintiffs have failed to clearly show that the President’s authority is limited under the relevant INA sections

The Critical Establishment Clause Analysis

As before in the other cases, Judge Trenga’s core analysis is directed to the Establishment Clause claim, which is Count 1 in the Sarsour Complaint.  Sarsour’s allegation is that the replacement Immigration Executive Order “violates the Establishment Clause because it disfavors the religion of Islam.”  Sarsour conceded that the new Executive Order does not facially violate the Establishment Clause, and the District Court then applied the three-part test from Lemon v. Kurtzman, 403 U.S. 602 (1971).  Within this test, Judge Trenga focused on the first part of the Lemon test, specifically whether the replacement order has a secular purpose.

Judge Trenga rejected the Government’s argument that the President offered a legitimate, rational, and non-discriminating purpose in the replacement Executive Order, and in turn, this permitted the federal courts to go outside of the four corners of the Order to analyze constitutional validity.  (This was the same argument that the Government made unsuccessfully in defense of the original Executive Order; the argument was also unsuccessful before the Ninth Circuit and before Judge Brinkema in Aziz v. Trump.)

Judge Trenga then went to the heart of the case: “[T]he question is now whether the President’s past statements continue to fatally infect what is facially a lawful exercise of presidential authority.”  The past statements are those by candidate Trump and campaign surrogates promising a ban on Muslim immigration.  These allegedly anti-Muslim statements were the bases for the earlier federal court decisions enjoining the original Executive Order, and they served as the bases in the Hawaii and Maryland District Court decisions enjoining the new Order.  Citing Supreme Court authority, Judge Trenga explained that “past actions [do not] forever taint any effort on [the government’s] part to deal with the subject matter.”

Continuing in the next paragraph, Judge Trenga wrote, “the Court cannot conclude for the purposes of the motion that the statements, together with the President’s past statements, have effectively disqualified him from exercising his lawful presidential authority . . . .”   He then concludes “the substantive revisions reflected in [the replacement immigration Executive Order] have reduced the probative value of the President’s statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominant purpose . . . is to discriminate against Muslims based on their religion . . . .”   The Establishment Clause count, therefore, failed at this point in the proceedings.

Continuing with the four-step TRO/Preliminary Injunction analysis, Judge Trenga agreed that the plaintiffs made an adequate showing of irreparable harm.  But because of the revisions in the replacement Executive Order, the plaintiffs did not establish that the equities tipped in their favor, and the plaintiffs also did not establish that the public interest favored the issuance of immediate injunctive relief.

The Fourth Circuit Accelerates Consideration of the Maryland District Court’s Ruling

On March 17th, the Government noticed its appeal of the injunction granted by the Maryland District Court.  If Judge Trenga’s Sarsour ruling is appealed, then the Fourth Circuit might consolidate the two cases. But even without a formal appeal, the Fourth Circuit will have before it multiple citations to Judge Trenga’s opinion and analysis in the Government’s opening brief.

At this point, the Maryland District Court injunction remains in place, and the Fourth Circuit will consider the matter promptly.  As noted above, the Government has already filed its Motion to Stay the Maryland Injunction, and the Fourth Circuit has accelerated consideration of the appeal.

At this point, the Fourth Circuit is likely to see the next major action on the Executive Order, as it appears that the Government is more interested in appellate review here as opposed to the Ninth Circuit.

Stay tuned.

President Trump’s Immigration Executive Order Heads to the Fourth Circuit

The Trump Administration issued its replacement Immigration Executive Order on March 6, 2017 (Order No. 13,780).  This Executive Order arrived three weeks after several federal courts, including the EDVa and the Ninth Circuit, enjoined enforcement of core terms of the earlier Immigration Executive Order (Order No. 13,769).

In this Blog Post, we report on two federal court rulings blocking enforcement of the replacement Immigration Executive Order. EDVa has not yet been drawn into this legal battle.  But it is emerging that Judge Brinkema’s analysis in her widely-reported February 13, 2017 decision in Aziz v. Trump provides the template for judicial review of the new Executive Order.  This Post revisits Judge Brinkema’s decision and shows how the decisions this week from federal courts in Hawaii and in Maryland have tracked her analysis.  This analysis will soon be scrutinized in the Fourth Circuit, as, the Government noticed its appeal late on Friday night (March 17).

We previously reported on Judge Brinkema’s ruling in Aziz v. Trump granting the Commonwealth of Virginia’s Motion for a Preliminary Injunction.  Judge Brinkema ruled that Virginia would likely prevail on its Establishment Clause claim and issued a narrowly-drafted Preliminary Injunction Order.  No appeal was taken by the Government.

The Aziz v. Trump decision is significant not so much for developments in Immigration Law (although it has significance consequences), but for the three-step analysis applied by Judge Brinkema: (1) It was first decided that Virginia had standing to challenge the Executive Order as a party whose own interests were at stake (the Court did not reach a decision on Virginia’s parens patriae standing theory); (2) her opinion then confirms that federal courts unquestionably have the authority to review the constitutionality of actions by the Executive Branch, including actions of the President; (3) and lastly, perhaps most importantly, a federal court does not have to accept the facial justifications offered for Executive Branch action, but may consider evidence of contrary, unconstitutional motives.

The Replacement Immigration Executive Order

The Administration’s replacement Immigration Executive Order is identically entitled “Protecting the Nation from Foreign Terrorist Injury into the United States.”  The Order seeks to restrict the entry of foreign nationals from specified countries and suspends entrance from the United States refugee program for a set time period.   The new Order seeks to address the Ninth Circuit’s February 9, 2017 decision in Washington v. Trump, and to some degree to answer concerns from Judge Brinkema’s February 13, 2107 Aziz v. Trump decision.

Some of the more obvious flaws and procedural frailties from the earlier Immigration Executive Order are either omitted or repaired, but the core of the order remains essentially unchanged.  That is, the so-called “travel ban” provisions remain in the Order.

The Hawaii Court’s Ruling and “Pretextual Justification”

The legal arguments have shifted slightly in the challenges to the new Immigration Executive Order. In the February challenges to the first Order, the Government argued that the President’s actions in the realm of national security could not be reviewed by a federal court. When Judge Brinkema and the Ninth Circuit forcefully batted down this argument, the Government was left without any factual defense.  Recall that Judge Brinkema’s opinion cited Virginia’s factual allegations showing evidence that the Order’s true purpose was to block Muslim entry into the United States.  The evidence included multiple quotes from Donald Trump on the campaign trail, and added quotations from Rudy Giuliani alleging that the purpose of Order was to make good on the so-called “Muslim Ban” campaign promises.

In wading into the Pretextual Justification issue, Judge Derrick K. Watson, from the Hawaii District Court, begins with an acknowledgment that “It is undisputed that the [new] Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion.”  The Government argued that the core language was “religiously neutral,” and that the new Immigration Executive Order could not have been religiously motivated because “the six countries represent only a small fraction of the world’s 50 Muslim-majority nations, and are home to less than 9% of the global Muslim population . . . .”  The Government continued that “[C]ourts may not ‘look behind the exercise of [Executive] discretion’ taken ‘on the basis of a facially legitimate and bona fide reason.’”  In the Government’s analysis, this should have ended the case and defeated Hawaii’s arguments.

But the Hawaii federal judge did not stop with the Government’s argument.  He cited the Ninth Circuit’s February 9, 2017 decision regarding the earlier Immigration Executive Order in Washington v. Trump:  “It is well-established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.”  This is the entry of the “Pretextual Justification” issue: Were the Trump Administration’s facially-neutral legal justifications intended to obscure a purpose of barring Muslim immigrants?

The allegations of anti-Muslim animus—taken in substantial part from the record in Aziz v. Trump—was obviously not going away.  Judge Watkins continued, “Any reasonable, objective observer would conclude, as does the Court for purposes of the instant motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.”

The evidentiary record before Judge Watson included more than the Trump campaign statements and promises, and more than the Giuliani commentary on a “Muslim ban.”  The judge had before him the earlier Declaration National Security Officers that criticized the Trump Administration’s arguments.   In the view of Judge Watson, the Administration’s case was further damaged a by February 21, 2017 statement by Stephen Miller, the President’s Senior Advisor.  Miller stated, “fundamentally, [despite ‘technical’ revisions meant to address the Ninth Circuit’s concerns in Washington v. Trump,] you are still going to have the same basic policy outcome [as the first].”

The Hawaii District Court found that the plaintiffs would likely prevail on their Establishment Clause claim.   Late on March 15, 2017, Judge Watson entered a nationwide TRO enjoining enforcement of Sections 2 and 6 of the new Immigration Executive Order.  Section 2(c) is the “travel ban” part of the Order, and Section 6 suspends the refugee program.

Maryland Federal Court Frames Issue as “Pretextual Justification”

Meanwhile, in the Maryland District Court, Judge Theodore D. Chuang authored a 43-page opinion in International Refugee Assistance Project v. Trump.  Judge Chuang released his decision on March 16, 2017, along with a nationwide preliminary injunction enjoining enforcement of Section 2(c) of the new Executive Order. Unlike the earlier cases involving the first Immigration Executive Order where the lead plaintiffs were the states, the plaintiffs in the Maryland action are nonprofit entities and several individuals. The Maryland District Court, however, had no difficulty finding that these plaintiffs have standing.

As in the Hawaii ruling, the Maryland plaintiffs prevailed on the Establishment Clause claim, the greatest vulnerability for the Immigration Executive Order.  The Court considered in some detail claims based on the Immigration and Nationality Act, but rejected those claims.  The Court also weighed and credited a number of the Government’s arguments. For example, the President’s assertions that the Order is driven by national security and foreign policy judgments is in the opinion recognized as a valid secular purpose.

Judge Chuang, citing Supreme Court precedent, framed the critical issue this way: “The question, however, is not simply whether the Government has identified a secular purpose for the travel band.  If the stated secular purpose is secondary to the religious purpose, the Establishment Clause would be violated.”  Here the Government’s argument that the case is only about a “facially legitimate and bona fide reason” for the Executive Branch action is rejected   The judge concludes that “in this highly unique case, the record provides strong indication that the national security purpose is not the primary purpose for the travel ban.”

Where Do We Go From Here?  To the Fourth Circuit.

The Government has now picked its battleground.   Late on Friday, March 17, 2017, the Government noticed its appeal of the Maryland District Court ruling to the Fourth Circuit.  While Judge Brinkema’s ruling will not formally reach the Fourth Circuit, her reasoning will be examined on appeal when the Circuit Court reviews Judge Chuang’s decision.

Under the current Briefing Order, the Government’s Opening Brief will be due on April 26, 2017 in the Fourth Circuit.  Unlike in last month’s Ninth Circuit consideration in the Washington case where the Government sought emergency review of the TRO, the Government is not seeking an emergency review of the Maryland District Court’s preliminary injunction ruling.  After the Government’s rough experience in the Ninth Circuit, it was probably an easy decision to go to Richmond rather than San Francisco.

The EDVA Drama Over the Immigration Executive Order Advances to the Preliminary Injunction Opinion: An Update on the Constitutional showdown in Judge Brinkema’s Court

This Blog post is the third in a series tracking the EDVA case of Aziz et al. v. Trump, the challenge to the January 27th Immigration Executive Order.  The earlier posts covered the January 28th Habeas Corpus Petition filing and the first courtroom confrontation on Friday morning, February 3, 2017, and then followed the Commonwealth of Virginia’s Motion for a Preliminary Injunction aimed at Section 3(c) of the Executive Order, with an eye on parallel proceedings in the Seattle federal court and the Ninth Circuit.

This third Blog post reports on Judge Brinkema’s February 13th Order in Case No. 1:17cv116—LMB/TCB, which grants Virginia’s Motion for Preliminary Injunction, and the judge’s accompanying Memorandum Opinion.  Consideration of the EDVa Order necessarily includes the Ninth Circuit’s February 9, 2017 Order and Opinion denying the Government’s request for an emergency stay of the February 3rd TRO issued by the Seattle federal district court.  The Seattle TRO enjoined the enforcement of Sections 3 and 5 of the Immigration Executive Order anywhere in the nation.  The Ninth Circuit left the TRO in place and returned the matter to the Seattle court for further proceedings.

Path to February 10th Hearing

Virginia’s Solicitor General, Stuart Raphael, set the battle lines in the Aziz case when he filed the Commonwealth’s February 2nd Brief in Support of the Motion for Preliminary Injunction.  Virginia proposed a fairly narrow and targeted order.  Unlike in the Seattle case where Washington and Minnesota pursued a nationwide ban on both substantive sections of the Executive Order, Virginia focused on the harm to the Commonwealth and its residents, and it challenged only Section 3(c) of the Executive Order, the section that applied to immigrants from the seven specified countries who held Green Cards or student/work visas.  Raphael knew what evidence Virginia could marshal in the short time to the preliminary injunction hearing, and he seemingly tailored the objectives to mesh with the evidence.

On February 3rd, Judge Brinkema granted Virginia’s Motion to Intervene.  Her reasoning essentially confirmed Virginia’s standing in the case.

On Wednesday, February 8, 2017, the Government filed its opposition to Virginia’s arguments.  Prior to this pleading, the Government had submitted its brief to the Ninth Circuit and had completed the appellate argument in an extraordinary telephone hearing (the circuit judges were in California, Hawaii, and Arizona, while the arguing counsel were in Seattle and D.C. – and 137,000 listeners followed the argument online).  The Government’s argument in the EDVA case tracked its position taken in the Ninth Circuit that the states did not have standing and that the federal courts have no jurisdiction to review the President’s findings and actions in the Executive Order.  The Government’s opposition went on to contest Virginia’s Due Process and Establish Clause arguments, but offered little or no evidence to support is defense.

The next day, the Ninth Circuit ruled against the Government and rejected the effort to stay the Seattle TRO.  In the EDVA case, Virginia filed its Reply Brief along with pages of supporting affidavits and public statements made by then candidate-Trump and others.

To use a football analogy, the Government stacked its defense for an all-out blitz; in doing so, the Government risked that if the states did have standing and the federal courts decided the Executive Order was reviewable, then there would be no remaining defenders who might tackle the states’ claims on the facts.

Ninth Circuit’s February 9th Ruling

Late on Thursday, the Ninth Circuit ruled 3-0 denying the Government’s Motion for an Emergency Stay Pending an Appeal of the Seattle TRO.

The Opinion first batted down the argument that Washington and Minnesota did not have standing.  The Court then turned to the crux of the Government’s position, that the federal courts could not review the Executive Order.  The Opinion rejects the Government position: “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”  From there, the Court marches through the legal test and concludes that the Government has not met its burden to stay the TRO.

The Seattle TRO stands as a nationwide ban on enforcement of the key parts of the Executive Order.  The Government argued that the ban, even if upheld in part, was overbroad. The Ninth Circuit responded simply:  “[W]e decline to limit the geographic scope of the TRO.”

Judge Brinkema’s February 13th Order and Opinion

In a one-hour Friday morning hearing before a packed courtroom, Judge Brinkema heard arguments on Virginia’s Motion for a Preliminary Injunction in Aziz v. Trump.  Her Minute Order noted only that she was taking the matter “Under Advisement” and she would rule shortly.  The judge’s questioning of counsel, as reported by USA Today, highlighted a “startling” lack of evidence that travelers from the seven Muslim-majority countries represented a specific national security threat.  The judge, sua sponte, read from the joint affidavit by former national security officials who stated that they were “unaware of any specific threat” posed by travelers from the seven countries.  Following the hearing, the Government had few, if any, reasons to believe it might prevail when Judge Brinkema ruled.

Judge Brinkema’s Order and 22-page Opinion were released late on Monday, February 13, 2017.  The Order grants Virginia’s requested Preliminary Injunction, albeit without nationwide effect.  (For this limited scope, Judge Brinkema explains, “To avoid any claim that the preliminary injunction to be entered in this litigation is defective because of overbreadth, this Court declines the Commonwealth’s invitation to impose broader relief.”)  The Order bans enforcement of Section 3(c) of the Executive Order as applied only to Virginia residents and students who hold Green Cards or have otherwise valid visas.

Unlike the Seattle case, Aziz v. Trump followed an orderly procedure from TRO to Preliminary Injunction in the EDVA, with the opportunity for adequate briefing and presentation of evidence.  Virginia had even filed comprehensive Proposed Findings of Fact.  Indeed, Judge Brinkema’s Opinion includes an eight-page Findings of Fact section.

A year from now, the details of Judge Brinkema’s Opinion will be mostly forgotten.  Her dispatch of the Government’s lead argument that the Executive Order is not reviewable by the federal courts may, however, be long discussed.  The judge writes:

Maximum power does not mean absolute power.  Every presidential action must still comply with the limits set for Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights.

The Opinion even references Marbury v. Madison, probably the first case studied in Constitutional Law class.  

The EDVA Opinion does not discuss Virginia’s standing other than to reference Judge Brinkema’s Order and Opinion from February 3rd granting Virginia’s Motion to Intervene.  In the progression through the legal standard for preliminary injunction, the Opinion states that “[t]he Commonwealth had produced unrebutted evidence supporting its position that it is likely to succeed on an Establishment Clause claim.”  There is no discussion of Virginia equal protection, due process, or statutory claims except in a footnote where the Court explains that “[B]cause the Commonwealth has established a likelihood of success on its Establishment Clause claim, the court does not need to address [the other claims].”  The Court concluded that Virginia proved sufficient bases for the Preliminary Injunction Order.

Summary and Status

The Immigration Executive Order, issued only 2½ weeks ago, is now the subject of more than 40 lawsuits.  The drama began when international flights landed at JFK Airport and then at Dulles Airport—passengers who boarded the flights holding valid Green Cards and visas learned that an Executive Order issued after take-off blocked their legal entry into the United States.

In Aziz v. Trump, the EDVA case, the initial parties were the Aziz bothers and other travelers who were blocked from entry, denied legal counsel, and almost immediately placed on returning flights.  As the case moved forward, the parties shifted and the issues narrowed.  The Commonwealth of Virginia sought to intervene.  Soon, in both the EDVA litigation and in the Seattle case, the states had the leading roles, and the issues focused on the states’ standing and whether the federal courts could review the Executive Order.  The Ninth Circuit and now the EDVA have confirmed that the states do have standing.  And, perhaps most significantly, the courts have emphatically rejected the Government’s argument that this Executive Order is beyond review by the federal courts.

The Seattle case has returned to the district court with the initial nationwide TRO banning enforcement of most of Sections 3 and 5 of the Immigration Executive Order in place.  In a new order issued this morning, the Seattle district judge noted that the Ninth Circuit construed the TRO as a preliminary injunction, and thus he has dispensed with further consideration of a preliminary injunction and has ordered the parties “to continue with other aspects of this litigation.”

Meanwhile, after 112 Docket entries and appearances by 28 amici parties, Judge Brinkema’s more limited Preliminary Injunction Order may now be appealed to the Fourth Circuit.

The EDVa Drama Over the Immigration Executive Order: From IAD to Courtroom 701 in Seven Wild Days

News reports have followed the short saga of the Immigration Executive Order issued on Jan. 27th by President Trump, but the legal saga culminating in this morning’s hearing (Friday, Feb. 3rd) before Judge Brinkema is remarkable, even by EDVA standards.

Earlier this morning, the first confrontation over the Executive Order unfolded in Judge Brinkema 7th Floor courtroom in Aziz at al. v. Trump, Case No. 1:17cv116—LMB/TCB.  As filed, the matter addressed the detainment of two brothers, both Green Card holders, traveling through Dulles Airport on their way to meet their father, who lives in Flint, Michigan.  The plight of the Aziz brothers appears now to be resolved, but the Commonwealth of Virginia has sought to intervene to push the broader issues with the Executive Order.

The issues before Judge Brinkema included the original parties’ Motion for Abeyance, Virginia’s Intervention Motion, the Motion of a second set of Plaintiffs to Intervene, and a Rule to Show Cause.  The Minute Order shows that the judge granted both Motions to Intervene and the original parties’ Motion to Hold Claims in Abeyance.  The judge denied, however, the Motion for the Rule to Show Cause.

The case thus continues with the Commonwealth of Virginia seemingly in the driver’s seat on the Plaintiffs’ side.

Friday Afternoon Executive Order

President Trump signed his Executive Order at about 4:30 PM on Friday, January 27, 2017.  As of the time of signing, flights from the Middle East heading to various US international airports were already in the air with arrivals beginning on Saturday morning.  This meant that a number of passengers from the seven foreign nations identified in the Executive Order were flying into an uncertain situation.  These passengers held Green Cards and valid student/work visas – without this advanced-entry approval, they never would have been permitted to board the international flights in the first place.

Saturday Morning—Incoming Flights

The first of the affected flights landed at JFK Airport early on Saturday, January 28th.  About 45 minutes later the first affected flight landed at Dulles Airport.  On board the Dulles fight were the two Aziz brothers, Yemeni nationals who were granted Green Cards because their father is a US citizen.  The brothers were connecting through Dulles on the way to Michigan where their father was planning to meet them.

The Aziz brothers and as many as 60 other arriving passengers were detained by the US Customs and Border Protection (CBP) and blocked from leaving a designated area at Dulles Airport.  CBP is an agency within the US Department of Homeland Security (DHS).

Habeas Petition and TRO/Injunction

Apparently anticipating a showdown, a group of immigration lawyers gathered at Dulles Airport.  By questioning passengers who were not detained, the lawyers confirmed that the Aziz brothers and others were in fact detained.  There was also concern that this group of detainees were being questioned by CBP officers and possible arrangements had been made to return the detainees to the countries from which they came.

The lawyers sought access to their new clients, but the CBP denied all access.

Late that afternoon, a Petition for Writ of Habeas Corpus and Complaint for an Injunction were filed in the Alexandria federal court.  The filing sought a targeted TRO: first, the Petitioners asked that the attorneys be granted access to their clients, and second, that for a minimum of at least seven days the detainees not be removed from the United States.

At about 9:30 PM on Saturday night, Judge Brinkema signed a two-point Temporary Restraining Order.  The Order requires that “respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International Airport.”  The TRO continues that “respondents are forbidden from removing petitioners–lawful permanent residents at Dulles International Airport–for a period of 7 days from the issuance of this Order.”

CBPs Saturday Night Defiance of the TRO

Copies of Judge Brinkema’s Order were delivered to the lead CBP officers at Dulles Airport.  The CBP officers apparently defied the federal court order–the lawyers who were to have access to their clients were again denied that access.  It also is the case that CBP put several, and perhaps many, of the detainees on return flights during the day on Saturday.

Sunday—Congressional Visitors to Dulles

On Sunday, January 29th, several members of Congress from the DC area, including Rep. Don Beyer, appeared at Dulles.  Beyer, in an affidavit later filed with the federal court, reported that “to my knowledge, not a single attorney was permitted access to any detained traveler.  My congressional colleagues and I were also denied access to detainees.”  Beyer concluded in his affidavit that “CBP’s continued enforcement of the Executive Order amounted to a constitutional crisis: four members of Congress asked CBP officials to enforce a federal court order and we were all turned away.”

Commonwealth of Virginia’s Intervention

On Tuesday, the Commonwealth of Virginia sought to intervene through its Attorney General, Mark Herring.  The next morning, Virginia filed with the federal court a Motion for a Rule to Show Cause, essentially requesting that the recipients of the TRO Order be required to explain their defiance or be held in contempt of court.  The Virginia pleadings sought a hearing on Friday, February 3rd.   Virginia additionally moved for a Preliminary Injunction to enjoin enforcement of Section 3(c) of the Executive Order, the broader section of the Executive Order.  Judge Brinkema set the Virginia Intervention Motion and the Motion for the Rule to Show Cause for a hearing this morning (Feb. 3rd).

On Wednesday, the U.S. Attorney entered an appearance.  Not long afterwards, the original parties filed a Joint Request to Hold Claims in Abeyance.  The pleading states that the parties “have a signed agreement to resolve Petitioner’s claims against Defendants.”   For this reason, the parties asked that Petitioner’s claims in this case be held in abeyance.

Thursday’s Pleadings Avalanche

The pleadings continued to pour in on Thursday—the PACER Docket Sheet lists twelve entries.

Virginia offered an additional Declaration in support of its motion for a Rule to Show Cause.  Virginia also filed its Opposition to the Joint Motion to Hold Claims in Abeyance. The Virginia Brief argues that “the Government’s conduct suggests that it may be maneuvering to delay the case in order to avoid having to account for whether it complied with this Court’s Temporary Restraining Order.”  The argument continues, “the Government has been holding press conferences claiming that it promptly complied with this Court’s TRO. It has time to explain why it appears that not even a single LPR [Green Card or student/work visa holder] detained at Dulles has been allowed to see a lawyer.”

The Virginia position is that while the claims of the Aziz brothers appear to be on their way to resolution, the issues regarding the constitutionality of the Executive Order still must be adjudicated.  Then, a second group of individual plaintiffs filed their own Motion to Intervene.

Just before 7 PM, Virginia filed its Brief in Support of Preliminary Injunction.  The US Attorney then filed its Opposition to Virginia’s Intervention and Opposition to the Rule.

Friday Morning Hearing

The Court’s schedule for this morning’s hearing showed Aziz v. Trump as the only remaining matter on Judge Brinkema’s 10AM docket.  Local authorities warned of traffic backups in the vicinity of the Alexandria federal courthouse.

The Court’s Minute Order confirms a 64-minute hearing and provides a cryptic summary of the rulings.  Judge Brinkema granted the joint Motion to Hold Matters in Abeyance—this perhaps resolves the Aziz brothers claims.  But the judge granted Intervention to the Commonwealth of Virginia and to the second Plaintiffs (though the Motion for a Rule to Show Cause was denied).  The Preliminary Injunction Hearing remains on the calendar for next Friday, February 10th.

A wild week in the Rocket Docket, and with the potential for more to come next week.

Proportionality Redux: The Sedona Conference Revisits its Commentary on Proportionality in Electronic Discovery

When Working Group 1 of The Sedona Conference (Sedona) publishes one of its eDiscovery White Papers, the consequence is often that Sedona steers the development of the law rather than merely reports on developments.  This observation is intended as a compliment, not a criticism. Sedona’s publications have guided the development of eDiscovery law since publication in 2003 of The Sedona Principles; Best Practices, Recommendations & Principles for Addressing Electronic Document Production, and have earned recognition as the gold standard for both the practical and scholarly discussion of eDiscovery issues.

In November 2016, Sedona released its Public Comment Version  of its Commentary on Proportionality in Electronic Discovery (“2016 Commentary”).  This version follows Sedona’s 2010 and 2013 Commentaries on Proportionality and its Fall 2015 publication in The Sedona Conference Journal of Judge Craig B. Shaffer’s scholarly article, “The ‘Burdens’ of Applying Proportionality” (also available for download from Sedona’s website).

This Blog post is not a critique or even a summary of the 2016 Commentary, but serves as a signpost directing litigators to Sedona’s website and the White Paper with the suggestion that the work be a resource for every federal litigator.

The December 2015 Rules Amendments: Key Rules Completely Revamped

The 2016 Commentary reminds us that “Rules 26 (b)(1) and 37(e) were completely revamped in December 2015.”  The amendments are the product of at least five years of  committee work and the most extensive public debate over any rules amendment going back to and probably including the Federal Rules of Civil Procedure introduction in 1938.

For federal court litigators on the front lines, these amendments should carry enormous, almost religious significance.  Chief Justice John Roberts emphasized in his 2015 Year-End Report on the Federal Judiciary that these developments were indeed a “Big Deal.”   See Kurz, J, “The Chief Justice and the Big Deal in the December 2015 Amendments to the Federal Civil Rules,” EDVA Update Blog (February 8, 2016).

The Chief Justice wrote that amended Rule 26(b)(1) “crystallizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.”   Before the amendment, the boundary for the scope of discovery was relevancy.  While for at least three decades federal courts had wrestled with various proportionality considerations embedded in the discovery section of the Federal Rules, the consensus is that proportionality had gained little or no traction for the day-to-day practice of law.  Each time we checked, proportionality slipped deeper into the forgotten fine print of rule subsections and subparts.  With the December 2015 amendment, the discovery scope boundaries are revised to matters “relevant to any party’s claim or defense and proportional to the needs of the case . . .” (emphasis added).  The amended rule then identifies six consideration points.  Proportionality thus moved from the proverbial rule sub-basement (Rule 26(b)(2)(iii)) to the front foyer.

The rule-makers opted in Rule 26(b)(1) not only to elevate proportionality as a discovery touchstone along with relevancy, but seemingly weighted them equally.  This amendment was then paired with the total revision of Rule 37(e), the rule that provides directions for data preservation and spoliation sanctions.   For our coverage of the Rule 37(e) amendment, see Kurz and Mauler, “Proposed Rule 37(e) Cleared by the U.S. Judicial Conference,” EDVA Update Blog (September 29, 2014).  Under these combined rules, a proponent of discovery should now be prepared to defend both the relevancy and the proportionality of requested discovery. Additionally, when conducting a post hoc analysis of preservation decisions, the reasonableness of the preservation should depend in part on proportionality considerations.

Sedona’s 2016 Commentary on Proportionality in Electronic Discovery

The intervening development between the earlier Commentaries and Judge Shaffer’s work and now the 2016 Commentary is the arrival of the December 2015 amendments to Rule 26(b)(1) and Rule 37(e).

The 2016 Commentary revises only slightly the previously published Sedona Principles of Proportionality.  These principles first appeared in the 2010 Commentary. The discussion under each principle is now considerably more robust than in the prior versions. Of course, this is the expected result now that we have the amended rules, the Committee Notes, and nearly a year of case law applying the amended rules.

Some commentators have observed that many practitioners, and even some federal courts, have continued seemingly oblivious to the December 2015 amendments.  This was expected—as we all know, court procedural rules can be mind-numbing, and it will reasonably  take several years for amendments, even highly consequential amendments, to achieve broad effect.  The Chief Justice’s “Big Deal” reminder in his 2015 Report was probably more an effort to accelerate what was otherwise anticipated to be slow change, and not a response to minimally-observed changes on the front lines of litigation.

Sedona’s 2016 Commentary does not admonish either the bar or the bench regarding recognition of the rules amendments.  Rather, the Commentary summarizes the rules amendments, and then works through the six Principles of Proportionality using for the first time a detailed set of 24 Comments.  With each Comment, the Commentary suggests how the new rules can and should work in practice.  For example, under Principle 1 (which addresses proportionality in preservation) in Comments 1.a and 1.b, the language is “proportionality principles may be considered in evaluating the reasonableness of prelitigation preservation efforts,” and “a post hoc analysis of a party’s preservation decisions should [be made] in light of the proportionality factors set forth in Rule 26, and the reasonableness of the preservation parties’ efforts.”  Consistent with Sedona’s practices, the Comments are supported by comprehensive footnotes.

As a second example, the same bridge from Principle to Comments and practical advice can be seen in the discussion of Principle 4 (proportionality decisions should be based on information other than speculation). Comment 4.b directs that “Discovery must be limited if producing the requested information is disproportionate to its likely benefits . . . .”  In Comment 4.c the instruction is that “courts may order sampling of the requested information to determine whether it is sufficiently important to warrant discovery.”

Making Use of Sedona’s 2016 Commentary

Sedona’s White Papers should be a part of every federal litigator’s eDiscovery toolkit.  The White Papers are the preferred starting point to understand the current state of eDiscovery law, to track recent developments, and to appreciate pending or future rules amendments.  Overall, Sedona presents balanced assessments of eDiscovery issues, and provides the best available practical guidance as well as scholarly research and analysis.

We appreciate the practical value of the 2016 Commentary.  This reflects the make-up of the team of lawyers and judges who drafted the Comments. The team members, all respected eDiscovery veterans, include front-line litigators and two federal court magistrate judges.  In many instances, they provide granular, step-by-step recommendations for implementing the Principles.  For this reasons, the Commentary may prove to be especially valuable in resolving many of the eDiscovery challenges that routinely arise in federal court litigation.

The 2016 Commentary, while currently at the Public Comment Version stage, is no exception to the continuing quality of Sedona’s White Papers.  The writers and editors have produced the best available resource on proportionality in eDiscovery, including bringing to date the developments associated with the December 2015 amendments to Rule 26(b)(1) and Rule 37(e).

The Bench: the Judges of the Alexandria Division

Have you wondered who are the judges for the Alexandria Division of the U.S. District Court for the Eastern District of Virginia?  How are the judges appointed or selected?  How long has each served?  When may a federal judge shift to Senior Status?  And, when can federal judges retire?  For answers to some of these questions and more, read on.

We now have eleven Article III authorized judgeships for the Eastern District of Virginia.  This number is set by statute (as recently as 1966, the Court had only four authorized judgeships).  Four District Judges are assigned to the Alexandria courthouse.  We have Magistrate Judges in each of the Divisions in the District, including five Magistrate Judges in Alexandria, and we have Bankruptcy Judges in each Division as well.

Article III District Judges

Appointment/Confirmation.  Article III judges are appointed by the President and confirmed by the Senate.  Once confirmed, a federal District Judge has the “judicial power of the United States.”   Article II of the U.S. Constitution gives the President and the Senate concurrent authority over nominations of executive officers and members of the Federal Judiciary.  Specifically, the President “shall nominate, by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court, and all other Officers of the United States.”

The judicial selection process typically begins with a “senatorial courtesy” recommendation from the home state senators.  The senior senator from the President’s party forwards the nomination to the White House. There is no set process for the situation that we will soon have in Virginia where the two senators are from a different party than the President.   Nonetheless, the “blue slip” policy of the Senate Judiciary Committee affords every senator at least a consultative role in the judicial appointments for his or her home state.

After the President has made an appointment, the Senate Judiciary Committee considers the nominee. If a majority of the Committee votes in favor of the nominee, then the nomination goes to the floor of the Senate. A simple majority of the Senate confirms the nomination.   This sounds streamlined, but as we know, the reality of judicial appointments and confirmations is something else.

The District’s Chief Judge.  The Chief Judge of the Eastern District is Rebecca Beach Smith.  Chief Judge Smith sits in Norfolk.  Her duties as Chief Judge are mostly administrative, but she presides at all meetings of the judges.  She became the Chief Judge in 2011 and is now 5 years into her 7-year term.  By statute, the Chief Judge is the senior judge in terms of his or her commission, but who is not yet 65 years old.  See 28 USC § 136.   Also, a Chief Judge serves only a single term.  In 2018, when Chief Judge Smith steps down from the position, most likely Judge Mark Davis (who also sits in Norfolk) will have the position.  He is the senior judge among the three judges in the District who in 2018 will be younger than 65.

Alexandria Division Article III Judges.  There are four Article III judges assigned to the Alexandria Division.  Judicial assignments (referred to as “duty stations”) are typically to a courthouse within a judicial Division.  See 28 USC 456(d).  The chart below shows the Alexandria Division District Judges, their ages, and the year each judge came to the federal bench:

Leonie Brinkema Age 72 1993
Gerald Bruce Lee Age 64 1998
Liam O’Grady Age 66 2007
Anthony Trenga Age 67 2008

Judges Brinkema and O’Grady served as Magistrate Judges before appointment and confirmation as Article III judges.  The dates shown above are their confirmation dates as Article III judges.  Judge Lee served previously as a judge on the Fairfax Circuit Court.

Senior Judges on Alexandria Court.   We have three active Senior Judges in Alexandria. Article III judges may serve for life, but they have the option of taking Senior Status or retiring when certain service requirements are met.

Senior Status for a federal judge is a form of semi-retirement; a federal judge who moves to Senior Status continues to hold the full authority of an Article III judge, and may continue to serve full-time, but has the option of a reduced caseload if he or she chooses.   A District Judge may move to Senior Status if he or she satisfies the criteria of 28 U.S.C. § 371.  The Chief Judge of the Fourth Circuit then annually must certify a Senior Judge’s continuing compliance with the criteria.

Our three Senior Judges in the Alexandria Division are:

James Cacheris Age 83 1981 (Sr. Status — 1998)
Claude Hilton Age 76 1985   (Sr. Status – 2005)
T.S. Ellis, III Age 76 1987   (Sr. Status – 2007)

Judge Albert V. Bryan, Jr. is also a Senior Judge on the Court, but his status is “inactive.”

A  District Judge who is age 65 and has 15 years of judicial service qualifies for Senior Status.  This is the “Rule of 80”— 65 + 15.  For those who are counting, applying the basic criteria to the four District Judges of the Alexandria Division means that one of the judges is now eligible for Senior Status, and another will be eligible in 2017.  The Rule of 80 provides that for every year over age 65, a judge qualifies for senior status with one less year of experience.  This means that by 2019, all of our current Alexandria Division District Judges will be eligible for Senior Status.

Significantly, for purposes of counting judgeship positions, a judge who moves to Senior Status is treated as retired and therefore no longer fills one of the approved judgeships for the District.  For example, after Judge Hilton opted for Senior Status in 2005, he continued to serve full-time as a judge, but his status-change opened the seat that was eventually filled by Judge O’Grady.

District Judges may also outright retire.  If the retirement criteria are met, then a retired District Judge will continue to be paid 100% of his salary at the time of retirement.

Magistrate Judges and Bankruptcy Judges.

Magistrate Judges.  The Alexandria Division has five Magistrate Judges:

Theresa Buchanan 1996 3rd Term
John Anderson 2008 2nd Term
Ivan Davis 2008 2nd Term
Michael Nachmanoff 2015 1st Term
T. Rawles Jones, Jr. (retired in 2014; recalled)

Magistrate Judge Jones retired in 2014, but continues to serve part-time working with Judge Trenga on the Lumber Liquidators action (MDL No. 15:1md2627–AJT/TRJ).  His status is referred to as “recalled.”

Under the Federal Magistrates Act, 28 USC 636 et seq., an appointed Panel investigates candidates and reports to the Court, and then the judges of the District (include the active Senior Judges) elect a Magistrate Judge.   A full-term appointment is for eight years, and a part-time Magistrate Judge serves at most a four-year term.  Magistrate Judges Anderson and Davis were recently re-appointed to their second eight-year terms.

The authority of a Magistrate Judge is set by the federal act and delegated by the District Court.  Thus, most actions of a Magistrate Judge are reviewable by a District Judge.

Bankruptcy Judges.  There are two Bankruptcy Judges in the Alexandria Division, each serving a 14-year term. They are appointed by the U.S. Circuit Courts of Appeals.  (For example, in the Alexandria Division, it is the judges on the U.S. Court of Appeals for the Fourth Circuit who select the Bankruptcy Judges by majority vote.)

Judge Brian Kinney was named to the Alexandria Division of the U.S. Bankruptcy Court for the Eastern District of Virginia in 2011; his term runs to 2025.  Judge Robert Mayer is retiring from the Bankruptcy Court effective January 4, 2017.  Alexandria practitioner Klinette H. Kindred has been named as the second Bankruptcy Judge in the Alexandria Division, and she is expected to take the bench in early 2017.

Filing Deadline Changes: The Disappearance and then the Return of the 3-Day Cushion

On December 1, 2016, amendments to Fed. R. Civ. P. Rule 6(d) went into effect.  At the same time, amendments to EDVa Local Civil Rule 7(F)(1) also went into effect.  For practical purposes, the F.R.C.P amendments make ECF service good for nearly all purposes and eliminate the added 3-day cushion that applied to most response and reply filings.  The EDVa Local Rule revision adds back the otherwise lost three days.  While the overall consequence may seem insignificant, you should be alert to at least one nuance from these changes.

To appreciate the changes, we summarize below the F.R.C.P. Rule 6(d) amendment and the changes to Local Civil Rule 7(f)(1).  Then we revisit the Sprint Option provision in the standard Rule 16(b) Scheduling Order used in the Alexandria Division.  See R. Larson, “The 1-Week EDVa Discovery Sprint from Filing to Ruling in 7½ Days.”  As explained below, the combined new F.R.C.P. and Local Rule amendments provide some added coverage for the beloved Sprint Option.

FRCP Rule 6(d) Amendments — Good-bye 3-Day Cushion

In April 2016, the U.S. Supreme Court approved the F.R.C.P. Rule 6(d) amendment that removes electronic service from the modes of service under Rule 5(b) that allows an extra three days for responses.   The Rule before amendment provided:

(d) Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a).

The workings of this Rule for the most part simply extended the motion response and reply times by three days.  For example, a motion that provided 11 days for the response in fact provided 14 days because of the 3-day cushion that was automatically added.  Now, when the services is by ECF (which is covered as electronic service under Rule 5(b)(2)(E)), the 3-day cushion vanishes.

The amended version of the Rule looks almost exactly the same except a close look shows that subpart 5(b)(2)(E) has been erased.   This now-gone segment is where Rule 5(b) allows for electronic service, which we usually translate to mean ECF service.  A quick look at Rule 5(b)(2)(E) suggests that the electronic service provisions apply only if the receiving party “consented in writing” to electronic service.   You might conclude that the changes add to a big nothing because you perhaps could refuse to consent.  You may have forgotten, however, that when you registered for ECF filing (as all EDVa practitioners are required to do) you consented to electronic service.   The EDVA Complete E-Filing Policies and Procedures Manual provides in Chapter 4 that “[b]y participating in the electronic filing process, the parties consent to the electronic service of all documents and will make available electronic mail addresses for service.”

To this point in the analysis, the F.R.C.P. Rule 6(d) amendments effectively shorten the response and reply times for most motion pleadings.

Local Civil Rule 7(F)(1) Amendment — the 3 Lost Days Return

EDVa Local Civil Rule 7 covers local Motions practice.  Subpart (F)(1) provides for filing response and reply briefs, and until the new revisions took effect set the filing dates at 11 days and three days respectively.  But with the addition of the 3-day cushion, the effective response and reply dates have been 14 days and six days.  The Local Rule subpart read (until now):

(1)  All motions, unless otherwise directed by the Court and except as noted herein below in subsection 7(F)(2), shall be accompanied by a written brief setting forth a concise statement of the facts and supporting reasons, along with a citation of the authorities upon which the movant relies. Unless otherwise directed by the Court, the opposing party shall file a responsive brief and such supporting documents as are appropriate, within eleven (11) days after service and the moving party may file a rebuttal brief within three (3) days after the service of the opposing party’s reply brief. No further briefs or written communications may be filed without first obtaining leave of Court. [Emphasis added.]

Absent modification of this Local Rule, the amendments to F.R.C.P. Rule 6(d) would result in significantly shorter response and reply times.

The EDVa amendments to Local Civil Rule 7(F)(1) substitute 14 days and three days as the new response and reply dates.  This Local Rule change was issued on extreme short notice—on November 17, 2016, only two weeks ago.  So we are essentially back where we started.  The major difference is that we have eliminated a provision appropriate to the time when nearly all pleadings traveled by snail mail.

When practicing in other Districts, be sure to check the Local Rules to see whether the EDVa changes have been adopted in the other District.   Failure to check could potentially result in painful consequences.

The Sprint Option and the Alexandria Division’s Rule 16(b) Scheduling Order

The give/take changes described above are not entirely neutral.  One difference is that the combined new F.R.C.P. and Local Rule amendments provide added coverage for the Sprint Option.

What we refer to as the “Sprint Option” is a creature of the standard Alexandria Division Rule 16(b) Scheduling Order, and it is not a Local Rules provision.   The standard Scheduling Order issued by the Alexandria magistrate judges includes this language:

In order to provide for the prompt resolution of non-dispositive matters, a non-dispositive motion may be filed and served by no later than 5:00 p.m. on a Friday and noticed for a hearing at 10:00 a.m. on the following Friday. Under this expedited schedule, a response must be filed and served by no later than 5:00 p.m. the Wednesday before the hearing and any reply should be filed and served as early as possible on Thursday to give the Court time to review all pleadings before the hearing. At the moving party’s discretion, a non-dispositive motion may also be filed and noticed for a hearing in accordance with the briefing schedule provided in Local Civil 7(F)(1) discussed above in order to provide additional time for briefing and consideration by the Court. [emphasis added]

In short, file and serve by 5 PM on Friday, and you can be before the Court the next Friday morning.

This is a key provision that greatly disturbs lawyers from other districts, but also one that keep the Rocket Docket roaring forward.  The 3-day cushion, however, had the potential to disrupt this process.  To stay on the Sprint Option track, a party had to avoid the 3-day cushion in prior F.R.C.P. Rule 6(d).  This required service of the pleading by “handing it to the person” to be served, or by leaving the pleading at the person’s home or office.   For practice in the Alexandria Division, this was a major impediment if the opposing counsel (or local counsel) was anywhere outside of Alexandria.

The above-describe challenge goes away with the combined F.R.C.P. Rule 6(d) and EDVa Local Rule 7(F)(1) amendments.  ECF service by 5:00 PM on Friday (with the NEF returned—service time is when the NEF issues, and not when you hit the last ECF button) suffices, and the Sprint Option is now more widely available without concerns about the in person service and the 3-day cushion.  The same applies to the Sprint Option responses and replies—ECF filing is adequate service without adding the 3-day cushion.