Garro Pinchi et al v. Mullin et al

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
FRESCIA GARRO PINCHI, et al.,
Plaintiffs,
v.
MARKWAYNE MULLIN, et al.,
Defendants.
Case No. 25-cv-05632-PCP
ORDER RESOLVING REMAINING
DISCOVERY DISPUTES
Re: Dkt. Nos. 169, 173, 185
In this Administrative Procedure Act action, a group of non-citizen plaintiffs challenge the
alleged implementation of a new and unwritten “re-detention policy” pursuant to which the
Department of Homeland Security (DHS) authorizes its agents to re-detain previously released
non-citizens without first making individualized determinations of changed circumstances
justifying such detention—that is, without determining that changed circumstances now
demonstrate that the non-citizens pose a flight risk or danger to the public. Plaintiffs allege that
DHS began implementing the challenged policy in May 2025. Defendants deny the
implementation of any re-detention policy at that time. To facilitate the resolution of that factual
dispute, the Court granted plaintiffs’ motion for extra-record discovery on April 10, 2026. In that
order, the Court explained that “the appropriate scope of discovery is limited to (1) if there is a re-
detention policy; (2) what the re-detention policy is; (3) when the re detention [policy] began; and
(4) why DHS decided to implement the re-detention policy.” Dkt. No. 130 at 5 (cleaned up). The
Court also instructed the parties to meet and confer concerning plaintiffs’ requests for production
and, if they could not reach agreement as to the proper scope of such requests, to file a discovery
letter brief setting forth their outstanding disputes. Unable to reach an agreement, the parties filed
a joint letter brief. The Court granted all but one of plaintiffs’ proposed requests for production.
See Dkt. No. 134.
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Defendants subsequently produced a number of records while asserting privilege over a
substantial number of other documents. Plaintiffs sent defendants a letter challenging some
assertions of privilege on August 21, 2026. See Letter Brief Regarding Plaintiffs’ Requests for
Production, Dkt. No. 162. Plaintiffs and defendants filed separate briefs related to the outstanding
disputes. See Dkt. Nos. 162, 163, 164, 166. The Court ordered the parties to continue to meet and
confer regarding the outstanding disputes and to submit a revised joint letter brief setting forth the
remaining scope of their dispute and their respective positions. See Dkt. No. 167. The parties did
so. See Dkt. No. 168. After a hearing on those remaining disputes, the Court ordered production of
certain documents, transmission of other documents to the Court for in camera review, and
submission of the privilege logs to the Court for the documents that remained in dispute. See Dkt.
No. 173.
Following in camera review of the documents and review of the privilege logs, the Court
ordered production of certain documents but determined that defendants had properly withheld
others. See Dkt. No. 185. The Court also ordered defendants to submit documents for in camera
review that had been omitted in their initial transmission. Id. Lastly, the Court ordered defendants
to transmit for in camera review the documents over which they assert the presidential
communications privilege because the Court was unable to determine whether defendants’
assertions of privilege were warranted without reviewing the documents themselves. This order
addresses the remaining privilege disputes.
I. Documents for Which Defendants Assert the Attorney Client Privilege
Plaintiffs seek production of documents that contain communications with Immigration
and Customs Enforcement (ICE) in-house counsel at the Office of the Principal Legal Adviser
(OPLA). Defendants assert attorney client privilege over those documents. “The attorney-client
privilege protects confidential disclosures made by a client to an attorney in order to obtain legal
advice, ... as well as an attorney’s advice in response to such disclosures,” United States v. Ruehle,
583 F.3d 600, 607 (9th Cir. 2009) (quoting United States v. Bauer, 132 F.3d 504, 507 (9th Cir.
1997)), but “[t]he fact that a person is a lawyer does not make all communications with that person
privileged,” id. (quoting United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002)). “Generally,
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‘a party asserting the attorney-client privilege has the burden of establishing the [existence of an
attorney-client] relationship and the privileged nature of the communication.’” Greer v. Cnty. of
San Diego, 127 F.4th 1216, 1224 (9th Cir. 2025) (alteration in original) (quoting Ruehle, 583 F.3d
at 607). Courts “apply an ‘eight-part test’ to determine whether the information in dispute is
covered by the attorney-client privilege.” Id. The Ninth Circuit has outlined those eight elements
as follows:
‘(1) Where legal advice of any kind is sought (2) from a professional legal adviser in
his capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal adviser, (8) unless the protection be waived.’
Id. (quoting United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010)). In the Ninth Circuit, “the
primary-purpose test applies to attorney-client privilege claims for dual-purpose communications.”
Id. (quoting In re Grand Jury, 23 F.4th 1088, 1092 (9th Cir. 2021)). “Under the primary-purpose
test, ‘courts look at whether the primary purpose of the communication is to give or receive legal
advice, as opposed to business or [other non-legal] advice.’” Id. (alteration in original) (quoting
Grand Jury, 23 F.4th at 1091). Following in camera review of the disputed documents, the Court
makes the following determinations:
GOV-00057304 and GOV-00057424 involve legal advice being sought from a legal
advisor in their capacity as such, the communications relate to that purpose and were made in
confidence, the communications are protected from disclosure, and the privilege has not been
waived. Greer, 127 F.4th at 1224; Graf, 610 F.3d at 1156. On review, it is also clear that legal
advice was the primary purpose of the documents. Greer, 127 F.4th at 1224; Grand Jury, 23 F.4th
at 1092. As a result, plaintiffs have not overcome the attorney client privilege, and defendants
have properly withheld GOV-00057304 and GOV-00057424.
With respect to GOV-00054670, the Court concludes that although the communications
involve attorneys, no legal advice of any kind was being offered. See Grand Jury, 23 F.4th at 1092
(noting that “the attorney-client privilege ‘protects only those disclosures necessary to obtain
informed legal advice which might not have been made absent the privilege’” (quoting Fisher v.
United States, 425 U.S. 391, 403 (1976))). The Court further concludes that legal advice was not a
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primary purpose of any of the communications. Greer, 127 F.4th at 1224, In re Grand Jury, 23
F.4th at 1092. There is no indication that the communications were the result of OPLA’s need to
give legal advice, but even if they were, under the primary purpose test, defendants “must do more
than show the ‘dual-purpose communication was made ‘because of’ the need to give or receive
legal advice.’” Epic Games, Inc. v. Apple Inc., 161 F.4th 1162, 1179 (9th Cir. 2025), cert. granted
in part, 146 S. Ct. 2812 (2026) (quoting Grand Jury, 23 F.4th at 1092). As a result, defendants
have improperly withheld GOV-00054670 and plaintiffs’ request to compel production of those
documents is granted.
II. Documents for Which Defendants Assert the Deliberative Process Privilege
Plaintiffs seek production of various documents for which defendants assert the
deliberative process privilege. The deliberative process privilege “protects ‘documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.’” Karnoski v. Trump, 926 F.3d 1180, 1203
(9th Cir. 2019) (quoting Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8
(2001)). And “[f]or the deliberative process privilege to apply, the material must be
‘predecisional’ and ‘deliberative.’” Id. at 1204 (quoting In re Sealed Case, 121 F.3d 729, 737
(D.C. Cir. 1997)).
The Ninth Circuit has “held that ‘[a] litigant may obtain deliberative materials if his or her
need for the materials and the need for accurate fact-finding override the government’s interest in
non-disclosure.’” Id. at 1206 (quoting F.T.C. v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th
Cir. 1984)). The court “balance[s] four factors in determining whether this exception to the
deliberative process privilege is met: ‘1) the relevance of the evidence; 2) the availability of other
evidence; 3) the government’s role in the litigation; and 4) the extent to which disclosure would
hinder frank and independent discussion regarding contemplated policies and decisions.’” Id.
(quoting Warner, 742 F.2d at 1161). To support their assertions of the deliberative process
privilege, plaintiffs provided a declaration from Samuel J. Olson, Acting Deputy Executive
Associate Director for Enforcement and Removal Operations (ERO) at ICE. See Dkt. No. 168.
Following in camera review of the documents, the Court makes the following determinations:
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GOV-00055346, GOV-00139700, GOV-00139699, and GOV-00139361 contain no non-
deliberative content, and each document is subject to the deliberative process privilege.1 To the
extent that any relevant information is contained in the documents, it is reasonably available to
plaintiffs from other sources. The government’s interest in “full and frank communication,”
Karnoski, 926 F.3d at 1206, outweighs any interest the plaintiffs have in the information contained
in the documents. As a result, plaintiffs have not overcome the deliberative process privilege, and
defendants have properly withheld GOV-00055346, GOV-00139700, GOV-00139699, and GOV-
00139361.
III. Documents for Which Defendants Assert the Presidential Communications Privilege
Plaintiffs seek production of various documents for which defendants assert the
presidential communications privilege. The presidential communications privilege “protects
‘communications directly involving and documents actually viewed by the President,’ as well as
documents ‘solicited and received’ by the President or his ‘immediate White House advisers
[with] ... broad and significant responsibility for investigating and formulating the advice to be
given the President.’” Karnoski, 926 F.3d at 1203 (alteration in original) (quoting Jud. Watch, Inc.
v. Dep’t of Just., 365 F.3d 1108, 1114 (D.C. Cir. 2004)). “[T]he presidential communications
privilege is, at all times, a qualified one, so that an expansion to cover communications of
presidential advisers which do not directly involve the President does not mean that these
communications will become permanently shielded; they will remain available upon a sufficient
showing of need.” In re Sealed Case, 121 F.3d at 751. “[C]ommunications made by presidential
advisers in the course of preparing advice for the President come under the presidential
communications privilege, even when these communications are not made directly to the
President.” Id. at 752. “The privilege must also extend to communications authored or received in
response to a solicitation by members of a presidential adviser’s staff” but to “limit [the] risk” of
1 Defendants assert only the presidential communications privilege over GOV-00139361, but
defendants assert the deliberative process privilege over GOV-00139700 and GOV-00139699.
These three documents are different versions of the same email thread, so the Court assumes that
defendants intended to assert the deliberative process privilege over GOV-00139361 and construes
the assertion of privilege as such.
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overextending that privilege, “the presidential communications privilege should be construed
narrowly.” Id. “Not every person who plays a role in the development of presidential advice, no
matter how remote and removed from the President, can qualify for the privilege” and, “[i]n
particular, the privilege should not extend to staff outside the White House in executive branch
agencies.” Id. Critically, “[t]he presidential communications privilege should never serve as a
means of shielding information regarding governmental operations that do not call ultimately for
direct decisionmaking by the President.” Id.
To support their assertions of the presidential communications privilege, defendants
provided a declaration from Gary M. Lawkowski, who serves as Deputy Assistant to the President
and Deputy Counsel to the President. See Dkt. No. 168. Following in camera review of the
documents, the Court makes the following determinations:
GOV-00071657, GOV-00028115, GOV-00051924, GOV-00123795, GOV-00028513,
GOV-00028115, GOV-00146330, GOV-00146395, GOV-00146396, GOV-00146397, GOV-
00146398, GOV-00146399, GOV-00146400, GOV-00146401, GOV-00139272, GOV-00139283,
GOV-00139285, GOV-00139286, GOV-00139287, GOV-00139705, GOV-00139706, GOV-
00139707, GOV-00139708, GOV-00139709, GOV-00139710, GOV-00145914, GOV-00125571,
GOV-00145708, GOV-00145709, GOV-00145913, GOV-00118889, GOV-00118847, and GOV-
00052009 involve only intra-agency communications and contain no communications with any
presidential advisor. Because the presidential communications privilege does “not extend to staff
outside the White House in executive branch agencies,” In re Sealed Case, 121 F.3d at 752, and
all of the documents involve communications exclusively among agency staff, the presidential
communications privilege does not apply. As a result, defendants have improperly withheld those
documents, and plaintiffs’ request to compel production of those documents is granted.
With regard to GOV-00054651, GOV-00124457, GOV-00145806, and GOV-00124459,
the email threads were originally started by a presidential advisor, but the advisor sent only the
first email and did not remain on the threads. The subsequent emails involve agency staff
gathering information and data. Given that the presidential communications privilege does not
apply to communications to or from agency staff, In re Sealed Case, 121 F.3d at 752, defendants
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have improperly withheld these documents, and plaintiffs’ request to compel production of GOV-
00054651, GOV-00054651, GOV-00124457, GOV-00145806, and GOV-00124459 is granted.
With regard to GOV-00145949, the email thread was started by a presidential advisor, and
he remained on the thread for several of the subsequent emails. Given that the presidential
communications privilege does apply to communications to or from agency staff, In re Sealed
Case, 121 F.3d at 752, defendants have improperly withheld the remainder GOV-00145949, and
plaintiffs’ request to compel production of GOV-00145949 is granted.
GOV-00053248, GOV-00053266, GOV-00053267, GOV-00124156, involve only intra-
agency communications. There is mention of directives from presidential advisors, or at least
implication that directives were coming from presidential advisors, but those advisors are not part
of the email threads. In any case, the presidential communications privilege does “not extend to
staff outside the White House in executive branch agencies.” In re Sealed Case, 121 F.3d at 752.
As a result, defendants have improperly withheld GOV-00053248, GOV-00053266, GOV-
00053267, GOV-00124156, and plaintiffs’ request to compel production of those documents is
granted.
GOV-00053261 and GOV-00053335 are both documents titled “federal coordination
plan.” The declaration from Gary M. Lawkowski does not include reference to GOV-00053261 or
GOV-00053335, so defendants’ reasons for asserting the presidential communications privilege
over the documents is unclear. The documents appear to be ICE internal documents, and in no way
involve communications between the agency and any presidential advisor, nor is there any
indication that the documents were prepared by or for the White House. As a result, defendants
have improperly withheld GOV-00053261 and GOV-00053335, and plaintiffs’ request to compel
production of those documents is granted.
* * *
For the foregoing reasons, the Court orders the following:
1. By October 16, 2026, defendants must produce GOV-00054670, which was improperly
withheld under the attorney client privilege.
2. By October 16, 2026, defendants must produce GOV-00053248, GOV-00053266, GOV-
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00053267, GOV-00028115, GOV-00051924, GOV-00124156, GOV-00123795, GOV-
00028513, GOV-00028115, GOV-00146330, GOV-00146395, GOV-00146396, GOV-
00146397, GOV-00146398, GOV-00146399, GOV-00146400, GOV-00146401, GOV-
00139272, GOV-00139283, GOV-00139285, GOV-00139286, GOV-00139287, GOV-
00139705, GOV-00139706, GOV-00139707, GOV-00139708, GOV-00139709, GOV-
00139710, GOV-00145914, GOV-00125571, GOV-00145708, GOV-00145709, GOV-
00145913, GOV-00118889, GOV-00118847, GOV-00052009, GOV-00053261, GOV-
00054651, GOV-00124457, GOV-00145806, GOV-00124459, GOV-00145949, and
GOV-00053335, which were improperly withheld under the presidential communications
privilege.
IT IS SO ORDERED.
Dated: October 14, 2026
P. Casey Pitts
United States District Judge
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