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Ninth Circuit Debates DACA Decision Documents Discovery Debacle

By George Khoury, Esq. | Last updated on

A three-judge panel of Ninth Circuit justices heard arguments this week in the DACA decision-making document discovery debacle. And though the feds were hot from a recent Second Circuit win, the Ninth Circuit panel did not hold back when it came to the questions.

After Judge Alsup of California's federal Northern District Court ruled that the administration would have to produce more documents, the Trump administration appealed. Fortunately for the White House and DHS, the order requiring the probably huge document production has been stayed pending the resolution of this appeal. This could buy the Trump administration quite a bit of time as the justices seemed to have rather different thoughts on the matter based on the questions they asked.

Daca Decision Document Debacle

In case you haven't been following the discovery law and motion practice in this controversial case, it'll likely be in the news for a little while longer. This appeal is all about a document production seeking the non-privileged documents considered by the DHS director making the decision to cancel DACA.

While the administration continues to stand by the documents they produced, challengers argued that the there was significant documentation missing. The administration allegedly produced all the documents that the acting Director of Homeland Security considered prior to making the decision to end DACA. The challengers assert that this is not true because the production did not include the documents the director's subordinates relied upon when advising the director. And therein lies the conflict on appeal: Should DHS be required to turn over all the documents the director's subordinates considered when advising the director?

Inconsistency and Actions

One potential problem for the administration involves the potential waiver of legal privilege. Since the Trump administration asserted that avoiding legal challenges was a factor in the decision, attorney client privilege could be jeopardized. Another potential problem comes from Trump's own statement that he made the decision to cancel DACA rather than the DHS director.

Raising the stakes for the administration, one judge commented that there is the potential for the director's actions to be invalidated through this court action if she failed to consider certain factors. Notably, to remove a regulation, an agency needs to have as good a reason for doing so as they did for implementing the regulation.

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