Unreported / Non-Citable
Background
Frescia Garro Pinchi and other non-citizen plaintiffs sued in the Northern District of California under the Administrative Procedure Act. They challenge an alleged new, unwritten DHS re-detention policy under which agents may re-detain previously released non-citizens without first determining that changed circumstances show a flight risk or danger to the public. Plaintiffs allege DHS began implementing the policy in May 2025. Defendants deny that any such policy was implemented at that time. These are allegations; the court has made no finding that a policy exists.
To help resolve that factual dispute, the court granted plaintiffs' motion for extra-record discovery on April 10, 2026. It limited discovery to whether a re-detention policy exists, what it is, when it began, and why DHS adopted it. The court later granted all but one of plaintiffs' proposed document requests. Defendants then produced records but withheld many others as privileged. After letter briefs, further meet-and-confer, a hearing, and in camera review of documents and privilege logs, the court ordered some production and found other withholdings proper. It also directed defendants to submit the documents withheld as presidential communications, because it could not assess those claims without seeing them. This order resolves the remaining privilege disputes.
The Court’s Holding
Applying the Ninth Circuit's eight-part test and primary-purpose test for dual-purpose communications, the court held that GOV-00057304 and GOV-00057424 were properly withheld. Legal advice was sought in confidence from ICE in-house counsel, it was the primary purpose of the communications, and the privilege was not waived. For GOV-00054670, although attorneys were involved, no legal advice was offered and legal advice was not a primary purpose. A showing that a communication was made merely because of a need for legal advice is not enough. The court compelled production of that document.
Under the Karnoski framework, the court found GOV-00055346, GOV-00139700, GOV-00139699 and GOV-00139361 predecisional and deliberative, with no non-deliberative content. Relevant information was reasonably available elsewhere, and the government's interest in full and frank communication outweighed plaintiffs' interest, so those documents were properly withheld. Defendants had invoked only the presidential communications privilege for GOV-00139361, but the court construed the assertion as deliberative process because it is another version of the same thread as the other two.
The court construed the presidential communications privilege narrowly, relying on In re Sealed Case for the rule that it does not extend to executive branch agency staff outside the White House. It held the privilege inapplicable to about 32 documents involving only intra-agency communications. It also rejected the privilege for four threads begun by a presidential advisor who did not stay on them, for four intra-agency documents that mention or imply advisor directives without advisors on the threads, and for two ICE federal coordination plan documents that the supporting White House declaration did not address. It further ordered production of GOV-00145949, a thread begun by a presidential advisor who remained for several emails. The opinion calls the remainder improperly withheld, and its stated rule contains an apparent wording slip, so the exact boundary of what must be produced is unclear.
Key Takeaways
- Attorney involvement alone does not make a communication privileged; the party asserting the privilege must show that legal advice was the primary purpose.
- The presidential communications privilege is construed narrowly and does not cover communications solely among agency staff, even where advisors' directives are mentioned or implied.
- Deliberative process privilege held for four documents after weighing the factors, partly because any relevant information was available from other sources.
- Defendants were ordered to produce the documents by October 16, 2026, although the operative paragraph omits GOV-00071657, which the discussion grants, so clarification may be needed.
Why It Matters
This is an unpublished district court discovery order, so it carries no precedential weight. It applies existing Ninth Circuit privilege law to documents reviewed in camera and does not decide the merits of the APA claims.
Still open are whether a re-detention policy exists, its content, start date and rationale, and the merits of plaintiffs' claims. The order shows the court will test privilege assertions document by document, especially efforts to stretch the presidential communications privilege to agency records. Documents the court found properly withheld remain protected.