Tag Archives: James Kurz

Supreme Court of Virginia Addresses the Reach of Conspirator Liability under the Virginia Business Conspiracy Act

The Supreme Court of Virginia recently addressed conspirator civil liability under the Virginia Business Conspiracy Act, Va. Code §§ 18.2-499 and -500.  Borrowing from Illinois law, the Court recited that “[t]he function of the conspiracy claim is to extend liability in tort beyond the active wrongdoers to those who have merely planned, assisted or encouraged the wrongdoer’s acts.”   While the case does not really change the substance of Virginia law, the opinion in Gelber v. Glock offers language that will likely appear in every future Virginia brief on conspirator liability and in the conspiracy jury instructions.

Tucked into the back of a 39-page opinion dealing with a family feud over an estate, the Supreme Court provides its tutorial on conspirator liability.   Admittedly, this is not federal law, but VBCA claims often appear in E.D. Va. litigation when state claims are before the federal court under diversity jurisdiction or pendent jurisdiction.

The Family Feud Case

The case is Gelber v. Glock, Record No. 160500 (June 22, 2017), a decision from an appeal heard during the Supreme Court of Virginia’s February 2017 Session.  The facts are those of the classic family feud.  In an early will, Mrs. Gelber left her estate to be divided among her five children.  Subsequent estate documents seemingly altered this directive—Mrs. Gelber’s real and personal property was to go to just one of her daughters.  The Executors sued on multiple theories, including a claim that the lucky daughter was part of a civil conspiracy with one of her sisters and a brother-in-law.

The Circuit Court for Henrico County granted a Motion to Strike the conspiracy claim.   The Supreme Court found no error in this circuit court ruling.  Given this straightforward appellate finding, the Supreme Court perhaps likely could have addressed the conspiracy Assignment of Error in a single paragraph.  But the Justices chose to give us a powerful tutorial on conspirator liability under the VBCA.  The tutorial is perhaps dicta, but it is nonetheless part of the Supreme Court opinion.

The Language of the Virginia Business Conspiracy Act

The VBCA is a two-part statute found in Title 18 of the Virginia Code, the criminal law title.  Va. Code § 18.2-499 identifies the elements of the criminal conspiracy. The next section, Va. Code § 18.2-500, provides for civil remedies for conspiracy violations.  Subpart A of the section reads:

Any person who shall be injured in his reputation, trade, business or profession by reason of a violation of § 18.2-499, may sue therefor and recover three-fold the damages by him sustained, and the costs of suit, including a reasonable fee to plaintiff’s counsel, and without limiting the generality of the term, “damages” shall include loss of profits.

The Reach and Purpose of Civil Conspiracy Liability

The real punch from the Gelber decision is the confirmation of conspirator liability beyond the primary tortfeasor.  The decision explains, “the object of a civil conspiracy claim is to spread liability to persons other than the primary tortfeasor.”  Gelber at 37.  The Court expands its discussion in footnote 21.  Quoting from Beck v. Prupis, 162 F. 3rd 1090, 1099 n. 18 (11th Cir. 1998), aff’d, 529 U.S. 494 (2000), the Gelber Court adds that “[i]n a civil context … the purpose of the conspiracy claim is to impute liability– to make X jointly liable with D for what D did to P.”   This is language is straight from Prosser and Keeton on Torts § 46 (5th Ed. 1984).

The Gelber opinion continues, in the same footnote 21, “[t]hus, a civil conspiracy plaintiff must prove that someone in the conspiracy committed a tortious act that proximately caused his injury; the plaintiff can then hold other members of the conspiracy liable for that injury.”  In support of this statement, the Supreme Court cites authority not only from the 11th Circuit, but also from the 8th Circuit, and from the Utah federal court and the Illinois Supreme Court.

The cited Eighth Circuit decision, Simpson v. Weeks, 570 F.2d 240, 242-43 (8th Cir. 1978), provides a clever analogy, “[t]he charge of conspiracy in a civil action is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible for any overt act or acts.”   The Utah federal court decision, Boisjoly v. Morton Thiokol, Inc., 707 F. Supp. 795, 803 (D. Utah 1988), explains that “[c]ivil conspiracy is essentially a tool allowing a plaintiff injured by the tort of one party to join and recover from a third party who conspired with the tortfeasor to bring about the tortious act.”

Finally, Gelber confirms that conspiracy liability is the same for low-level players as it is for conspiracy kingpins.  The cited Supreme Court of Illinois decision, Adcock v. Brakegate, Ltd., 645 N.E.2d 888, 894 (Ill. 1994), offers, “[t]he function of the conspiracy claim is to extend liability in tort beyond the active wrongdoers to those who have merely planned, assisted or encouraged the wrongdoer’s acts.”

Summary: Gelber and VBCA Conspirator Liability

The Supreme Court of Virginia ranges far and wide for its authority on conspirator civil liability perhaps because a clear statement of civil liability tied to a conspiracy claim was previously missing from the Virginia case law.  For instance, plaintiffs looking for authority for conspirator civil liability have frequently cited Carter v. Commonwealth, 232 Va. 122 (1986), a criminal case about vicarious liability for the use on a firearm in a felony.  This is not to say that Virginia law was any different before Gelber, but that it was challenging to find on-target Virginia citations supporting conspirator civil liability.

Expect that the Gelber language will be prominent in trial briefs and jury instructions for future VBCA claims in the state courts and in the federal courts.

Personal Jurisdiction in the Internet World Redux

In this Blog post, we look at two recent Judge Ellis decisions on personal jurisdiction: Zaletel v. Prisma Labs, Inc., 226 F.Supp.3d 599 (E.D. Va. 2016), and Thousand Oaks Barrel Co., LLC v. Deep South Barrels LLC, 2017 WL 1074936 (E.D. Va. 2017).

It seems that the Alexandria federal court’s Friday Motions Docket often has at least one personal jurisdiction motion.  You might think that a simple test for personal jurisdiction could be applied to greatly reduce the frequency that this issue comes before the courts.  But think again.  Pulitzer Prize winner Thomas Friedman contends in his recent best-seller, Thank You for Being Late, that the pace of technological change has for at least the last 10 years been accelerating faster than we can adapt.  Why, then, should we expect the law of personal jurisdiction to keep up with the changing technology landscape?   As Friedman argues, it is not just technology per se that is accelerating, it is everything that is driven by technology that is also accelerating at unsettling speeds.  This understandably includes the exploding e-commerce world.

Zippo: a 20-year old Precedent for the Internet World   

The most widely cited case on personal jurisdiction in the Internet world is now 20 years old.  In Zippo Manufacturing Co. v. Zippo Dot Com, Inc. Co., 952 F.Supp. 1119 (W.D. Pa. 1997), the court divided Internet activities into three kinds – active, passive, and interactive.  The jurisdictional question was decided based on where a website fell within these categories.  Think back to 1997, the year of the Zippo decision. The leading ISP was AOL, and the majority of online users joined the Internet via dial-up access.  Amazon (first known as Cadabra, Inc.) was just getting started and was only beginning to sell books online.  The leading web browser was Netscape, and e-commerce was not much more than a handful of infrequently accessed “storefronts.”   Times have changed.

Fourth Circuit Law on Personal Jurisdiction in the Internet World

The controlling law in the Fourth Circuit is from 2002 – ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707 (4th Cir. 2002).   In that case, now 15 years old, Judge Niemeyer wrote, “the convergence of commerce and technology thus tends to push the analysis to include a ‘stream-of-commerce’ concept under which each person who puts an article into commerce is held to anticipate suit in any jurisdiction where the stream takes the article.”  The Court lamented that the Supreme Court had not provided updated guidance.  Absent such controlling authority, Judge Niemeyer settled on the model developed in Zippo.

Zippo provides a three-part test:  A state may, “consistent with due process, exercise judicial power over a person outside of the state when that person (1) directs electronic activity into the state, (2) with the manifested intent of engaging in business or other interactions within the state, and (3) that activity creates, in a person within the state a potential cause of action cognizable in the state’s courts.”  ALS Scan, 293 F.3d at 714.

Later, in 2013, the Fourth Circuit revisited ALS Scan in Unspam Technologies, Inc. v. Chernuk, 716 F.3d 322 (4th Cir. 2013).   In Chernuk, the defendants were four foreign banks that were alleged to have financed the credit card operations for illegal prescription pharmacies.  They were sued as part of an alleged global conspiracy to market and sell pharmaceuticals online.  Chernuk adopted with minor adjustments the three-part test from ALS Scan.  Relying on some interim Supreme Court guidance, the Fourth Circuit added that “it is the defendant’s actions, not his expectations, that empower a State’s courts to subject him to judgment.”

Zaletel v. Prisma Labs—70 Million Downloads, but no Personal Jurisdiction

In Zaletel, a 2016 trademark case involving s photo-filtering app known as “Prisma,” Judge Ellis applies a somewhat modified ALS Scan test.  Before getting to the core of the legal analysis, Judge Ellis walks us through International Shoe and the difference between general jurisdiction and specific jurisdiction.  He then introduces the central issue with a quote from Chernuk.  The Fourth Circuit has adopted the three-part inquiry “to determine whether a defendant is subject to jurisdiction in a State because of its electronic transmissions to that State.”   That inquiry, the judge writes, should consider: “(1) the extent to which the defendant purposely availed itself of the privilege of conducting activities in the forum state; (2) whether the plaintiff’s claims arose out of those activities; and (3) whether the exercise of personal jurisdiction is constitutionally reasonable.”

Judge Ellis refers to the first part of this test as the “purposeful availment” prong, which he explains “is grounded on the traditional due process concept of minimal contacts.”  To determine whether a foreign defendant has purposely availed itself of the privilege of conducting business in a state, the court should ask whether “the defendant’s conduct in connection with the forum state are such that he could reasonably anticipate being haled into court there.”  To satisfy this standard, “a defendant outside the forum state must have at least ‘aimed’ its challenged conduct at the forum state.”  Chernuk at 328.

The defendant in Zaletel had no Virginia presence and did not sell its app directly into Virginia.  The app, however, could be downloaded from the Google Store.  Judge Ellis reverted to the more general “stream of commerce” theory.  Simply placing products into the stream of commerce, even with the expectation that they would be purchased in the forum state, is not enough to constitute “activity purposely directed” at the forum state.  The Prisma Labs app was downloaded more than 70 million times, but apparently not specifically aimed at Virginia.  Due process requires that a defendant be haled into court in a forum state based on his own affiliation with the state, and “not based on the ’random, fortuitous, or attenuated’ contacts he makes by interacting with other persons affiliated with the State.”  The Zaletel court must have recognized that some percentage of the 70 million downloads likely landed in Virginia, it was not by defendant’s doing.  Something more is required.

Thousand Oaks Barrel Co.—99 Shipments Supports Personal Jurisdiction

Three months after Zaletel, Judge Ellis again addressed personal jurisdiction in a trademark/copyright case.  Thousand Oaks Barrel sued Deep South Barrels, a Texas company that made and sold oak mini-barrels similar to the Thousand Oaks Barrel product, claiming trademark and copyright violations in Virginia.  Judge Ellis applied the now familiar ALS Scan test with specific reference to Zippo.  Restated again with minor adjustments in this decision, the three-part test is that a State can exercise personal jurisdiction over a nonresident defendant when that defendant “(1) directs electronic activity into the state, (2) with the manifested intent of engaging in business or other interactions within the state, and (3) that activity creates, in a person within the state, a potential cause of action cognizable in the state’s courts.”

Judge Ellis concluded first that Plaintiff Thousand Oaks established a prima facie case of personal jurisdiction over Deep South Barrels by showing that “Deep South Barrels directed electronic activity into Virginia with the manifest intent to do business with Virginia residents when it set up an interactive e-commerce website accessible to Virginia residents and used that website to fulfill Virginia customers’ Internet purchases.”  The facts established that website customers in Virginia could purchase the Deep South mini-barrels directly over the website, and that approximately 99 shipments originated from website sales to Virginia customers.  The judge found that Deep South Barrels’s use of an interactive e-commerce website to sell even a modest quantity of products to Virginia residents was sufficient to show that the defendant “purposely availed itself of the privilege of conducting activities [in Virginia].”

Summary

The center of the test for personal check jurisdiction in Internet or cyberspace transactions is whether there has been “purposeful availment” by the defendant, which requires that the commerce in question be aimed at the forum state.  The Zippo test addresses the relatively easy questions of personal jurisdiction with passive websites (no personal jurisdiction) and sales from highly active website (personal jurisdiction).   By the broad swath of middle-ground interactivity remains uncertain territory.

The current Fourth Circuit test yields what might tactfully be described as uneven results.  In Zaletel, 70 million downloads of the defendant’s app – of which some percentage were certainly to Virginia customers – did not support personal jurisdiction because the defendant did not aim at Virginia.  Yet the same judge only three months later and applying the same test concluded that 99 shipments of oak mini-barrels was sufficient for personal jurisdiction.

Judge Ellis’s analysis seems to be consistent between the two cases.  The problem is that the legal test for personal jurisdiction in the Internet world is from a bygone era, leaving us with no clear test of the critical “purposeful availment” analysis.

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).