United States District Court, D. Colorado
SUPPLEMENTAL OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO COMPEL AND FOR PROTECTIVE ORDER
MARCIA S. KRIEGER, District Judge.
THIS MATTER comes before the Court pursuant to Mr. Mohammed's Motion to Compel Discovery (# 331), and the Defendants' response (# 349, 350); and the Defendants' Motion for Protective Order (# 332), and Mr. Mohammed's response (# 356).
The Court heard oral argument on the motion on February 14, 2014 (# 362), and the Defendants made an in camera production of the contested documents. On March 18, 2014, this Court issued an Opinion and Order Granting in Part and Denying In Part (# 366) both motions. Also pending is the Defendants' Motion for Reconsideration (# 371) with regard to a portion of that March 18 Order, and a Motion to Restrict Access (# 375) to an exhibit submitted by the Defendants in support of that motion for reconsideration.
The Court assumes the reader's familiarity with this dispute and with the contents of the March 18 Order, and the factual recitation there concerning the facts of this case and the issues presented is deemed incorporated herein, as is the Court's discussion of the relevant legal standards.
Some time after tendering the documents that were the subject of the March 18 Order, the Defendants produced an additional CD of materials, representing potentially responsive documents that were in the custody of the FBI. (The Defendants supplemented that first CD production with a second CD containing several documents inadvertently omitted from the first CD. This Order addresses the contents of both CDs without further distinguishing between them.) These documents were not accompanied by a traditional privilege log. Rather, certain material in each document was contained in one or more colored boxes on the document, and various single-letter "deletion codes" in the corner of each box identified the grounds upon which the Defendants were claiming privilege for the information contained in that box. The Defendants provided a separate key listing the 18 distinct deletion codes the Defendants invoked.
Before turning to the specific documents, the Court has several general observations. First, it is the Court's understanding that the Defendants have already produced all of the documents on the CDs (or, at the very least, all of the documents from the folders other than those designated "TANBOM") to Mr. Mohammed in a redacted form, and that the redactions on the documents produced to Mr. Mohammed correspond precisely with the boxed text on the documents provided to the Court. As exhibits to his Motion to Compel, Mr. Mohammed attached samples of the redacted FBI documents that have been provided to him by the Defendants. Although the Court cannot locate those same pages in the CDs that have been produced, the type and frequency of the redactions should on Mr. Mohammed's exemplars is consistent with the type and frequency of the boxed text in the documents produced to the Court. Moreover, the explanatory memo accompanying the Defendants' CDs seems to imply that the FBI has produced the redacted versions of the documents contained on the CD to Mr. Mohammed.
Accordingly, the rulings herein relate only to the material contained within the various colored boxes designated by the Defendants. In other words, even where the Court directs below that a given document may be withheld on privilege grounds at set forth below, the Defendants shall produce the entirety of that document to Mr. Mohammed, redacting only that portion of the text that was contained within a text box for which the Court has upheld a claim of privilege.
Second, the Court notes that its review of the documents has been made in somewhat of a vacuum. Although the Defendants' Motion for Protective Order was supplemented with the ex parte affidavit of FBI Assistant Director John Giacalone (# 340, 342), elaborating somewhat on the general reasons for the Defendants' invocation of the law enforcement privilege and addressing certain concerns the Defendants had about the disclosure of certain kinds of information, the Defendants have not offered any publically filed brief or publically detailed log that offers specific arguments as to why specific documents within the FBI's production should be deemed privileged.
Limiting itself to publically filed documents, the Court has referred only to the deletion codes and the identified text of each document letting each speak for itself, without clarification, elaboration, or contextual explanation. The Motion for Protective Order has not been supplemented since its filing. Because the Defendants have been heard to the full extent that they wish to be on the reasons why these documents should be withheld from production, the Court is not inclined to entertain a motion seeking reconsideration of this order for reasons that could have been fully identified or explained at the time of filing the Motion for Protective Order.
Finally, the Court briefly explains the file structure on the CDs and identifies the documents it has reviewed and is adjudicating. The root directory of the initial CD provided by the Defendant contains the following folder names: (i) "BOP docs"; (ii) FBI Denver files produced [parts 1-4]"; (iii) "FBI emails produced" (this folder is subdivided into 9 parts, although part 4, apparently comprising Bates numbers 11815-11959, or thereabouts, was not included on the CD); (iv) "Nassor docs from TANBOM Sub DD & other files"; (v) "Other inmates' correspondence in Denver file"; (vi) TANBOM complete NY Sub DD file"; (vii) "TANBOM NY Sub I file"; (viii) "TANBOM Sub IC file"; (ix) "TANBOM Sub DD production in addition to Nassor docs"; (x) TANBOM two 302s of Fatima Khamis Mohammed"; and (xi) a key listing and describing the various deletion codes.
At oral argument, Mr. Mohammed's counsel conceded that he was no longer requesting production of "the TANBOM file." Lacking any clear understanding of the extent to which Mr. Mohammed's reference to the "TANBOM file" corresponds to the various files denoted as TANBOM in the Defendant's FBI production, this Court has simply assumed that any file folder containing the TANBOM designation is no longer requested by Mr. Mohammed. Thus, this Order addresses only the documents contained in folders (i) - (iii) and (v) listed above.
The Court then turns to the specific documents on the CDs.
A. Universal Grounds for partial redaction
Numerically, the deletion code most frequently cited by the Defendants with regard to these documents is code "S", representing "personal identifying information related to law enforcement personnel and their family members, the disclosure of which is routinely guarded for security reasons." Without passing on the assertion in the second clause of that sentence, this Court notes that Mr. Mohammed conceded at oral argument that he was only interested in knowing when persons who the Defendants have identified as trial witnesses are mentioned in or involved with a document, and the identities of persons involved with ...