MEMORANDUM OPINION AND ORDER
PAUL
L. FRIEDMAN UNITED STATES DISTRICT JUDGE.
This
matter is before the Court on the motion [Dkt. No. 485] of
petitioner Saifullah Paracha to compel the United States to:
(1) file a motion for exception from disclosure under Section
I.F of the Amended Case Management Order within seven days;
and (2) provide certain other discovery, or explain why the
requested discovery is not required to be produced under the
Amended Case Management Order, within thirty days. The United
States opposes both requests. See Opposition at 1
[Dkt. No. 487]. Upon careful consideration of the
parties' papers, the relevant legal authorities, and the
entire record in this case, the Court will grant Mr.
Paracha's motion in part and deny it in part without
prejudice.
On
November 15, 2017, Mr. Paracha's counsel requested
unredacted versions of 21 documents which were previously
disclosed in redacted form. See Opposition at 1-2.
On January 30, 2018, the United States responded that it
could not provide unredacted versions of those 21 documents
because the redacted information is either: (1) irrelevant;
(2) inculpatory material upon which the United States does
not intend to rely; or (3) “arguably exculpatory
material” that cannot be disclosed to Mr. Paracha's
counsel for reasons of national security. See
id. at 2. As to this third category of arguably
exculpatory material, the United States intends to file an
ex parte motion for exception from disclosure under
Section I.F of the Amended Case Management Order. See
id. In the motion now before the Court, Mr. Paracha
seeks an order compelling the United States to file such a
motion within seven days.
Section
I.F of the Amended Case Management Order provides as follows:
Classified Information. If any information
to be disclosed under Sections I.D or I.E of this Order is
classified, the government shall, unless granted an exception
by the Merits Judge, provide the petitioner's counsel
with the classified information, provided the
petitioner's counsel is cleared to access such
information. If the government objects to providing
petitioner's counsel with the classified information, the
government shall move for an exception to disclosure.
December
16, 2008 Amended Case Management Order at Section I.F [Dkt.
No. 219]. Section I.D.1 of the Amended Case Management Order,
referenced in Section I.F, was amended by this Court on July
16, 2009. As amended by this Court, Section I.D.1 provides,
inter alia, that the government shall disclose to
the petitioner “all reasonably available evidence in
the government's possession that tends materially to
undermine the evidence that the government intends to rely on
in its case-in-chief or to otherwise support its
justification for detaining the petitioner . . . .”
July 16, 2009 Amended Case Management Order at 3 [Dkt. No.
308]. Section I.D.2 provides that “[i]f evidence
described in [Section I.D.1] becomes known to the government
after the date [specified in Section I.D.1] on which the
government was to disclose exculpatory evidence in a
petitioner's case, the government shall provide the
evidence to the petitioner as soon as practicable.”
November 6, 2008 Amended Case Management Order at Section
I.D.2 [Dkt. No. 204].
Mr.
Paracha's counsel asserts that the “arguably
exculpatory material” identified by the United States
is essential to preparing Mr. Paracha's supplemental
traverse, which is due on July 31, 2018. See
Opposition at 5-6. While the United States agrees that it
must file a Section I.F motion under these circumstances, it
contends that it should not be required to do so within seven
days. See id. at 2-6. The United States suggests
that filing a single, comprehensive Section I.F motion after
discovery closes would be more efficient, as it would limit
the total number of Section I.F motions filed and allow the
Court to consider the full range of redacted information in
light of prior disclosures in the case. See id. at
1-3. The United States further contends that preparing a
Section I.F motion will take more than seven days, as the
United States must compile the redactions of the arguably
exculpatory material, work with the relevant client agencies
to prepare declarations explaining the basis for the
redactions, and prepare an ex parte motion
explaining why the redactions do not prevent Mr. Paracha from
receiving meaningful habeas review under Al Odah v.
United States, 559 F.3d 539 (D.C. Cir. 2009).
Section
I.F of the Amended Case Management Order provides that Mr.
Paracha's counsel is entitled to the disclosure of
exculpatory evidence unless the Court grants an exception to
disclosure. Section I.F does not specify a date by which the
United States must move for an exception from disclosure.
Section I.D.2, however, makes clear that the United States
must provide exculpatory evidence “as soon as
practicable” after it becomes known to the United
States.[1] While the Court recognizes that preparing
a Section I.F motion may require significant resources and
agency coordination, those factors do not outweigh the fact
that, absent an exception from disclosure, Mr. Paracha's
counsel is entitled to review exculpatory evidence “as
soon as practicable” in order to prepare Mr.
Paracha's defense. And Mr. Paracha's counsel argues
that he needs this material in order to prepare Mr.
Paracha's supplemental traverse, which is due on July 31,
2018. Accordingly, the Court will grant Mr. Paracha's
motion in part. On or before June 29, 2018, the United States
shall either produce unredacted versions of the 21 documents
requested by Mr. Paracha's counsel disclosing any
arguably exculpatory material, or move for an exception from
disclosure under Section I.F of the Amended Case Management
Order.
Separately,
Mr. Paracha moves to compel the United States to provide
certain other discovery, or explain why the requested
discovery is not required to be produced under the Amended
Case Management Order, within thirty days. See
Opposition at 7. The requested discovery refers to
approximately ten items or categories of information that Mr.
Paracha's counsel requested in his letters of November
15, 2017 and March 20, 2018. See id. The United
States asserts that it is in the process of determining
whether the requested discovery may be located, and if so,
whether it can be provided to Mr. Paracha's counsel in
either redacted or unredacted form. See id. The
United States represents that it “expect[s] to have
completed [its] searches for the requested information . . .
and hope[s] to have provided, if possible, any resulting
documents that [it agrees] are required to be produced to
Petitioner's counsel and that can be cleared for
production by the classification authorities prior to the new
traverse deadline of July 31, 2018.” Id. at 8.
Based
on government counsel's representation that it hopes to
provide the requested documents that have been cleared for
production before July 31, 2018, the Court will deny Mr.
Paracha's request for discovery without prejudice. On or
before June 29, 2018, the parties shall file a joint status
report addressing: (1) whether the requested discovery has
been located; (2) if so, whether it can be provided to Mr.
Paracha's counsel in either redacted or unredacted form;
and (3) whether an extension of the July 31, 2018 due date
for the supplemental traverse is necessary. Accordingly, it
is hereby
ORDERED
that Mr. Paracha's motion to compel [Dkt. No. 485] is
GRANTED IN PART and DENIED IN PART without prejudice; more
specifically it is
FURTHER
ORDERED that Mr. Paracha's motion to compel the United
States to file a motion for exception from disclosure under
Section I.F of the Amended Case Management Order is GRANTED
IN PART. On or before June 29, 2018, the United States shall
either produce unredacted versions of the 21 documents
requested by Mr. Paracha's counsel disclosing any
arguably exculpatory material, or move for an exception from
disclosure under Section I.F of the Amended Case Management
Order; and it is
FURTHER
ORDERED that Mr. Paracha's motion to compel the United
States to provide certain other discovery, or explain why the
requested discovery is not required to be produced under the
Amended Case Management Order, is DENIED without prejudice.
On or before June 29, 2018, the parties shall file a joint
status report addressing: (1) whether the requested discovery
has been located; (2) if so, whether it can be provided to
Mr. Paracha's counsel in either ...