Opinion
1:20-cr-424
01-20-2022
UNITED STATES OF AMERICA, Plaintiff, v. MARGARET COLE, Defendant.
OPINION & ORDER [RESOLVING DOC. 107]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
The United States has indicted Defendant Margaret Cole for conspiracy to defraud the United States and alleged false statements to an adoption accrediting entity and a Polish government agency. The State Department made an administrative decision involving Defendant Cole's adoption company before this criminal case.
Doc. 1.
Because the State Department started the investigation that led to Defendant Cole's indictment, this Court previously held that the State Department is considered part of the prosecution team for discovery and Brady purposes.
Doc. 94-1.
Following this Court's order, the government directed the State Department to provide any remaining undisclosed documents related to Defendant Cole's adoption company. The State Department disclosed two additional communications in full, along with three partially redacted communications. The State Department claimed deliberative process privilege over the redacted portions.
Doc. 104.
Id. at 2.
Doc. 107-1.
The government disclosed the communications and the State Department privilege log to Defendant Cole.
Doc. 104.
Now, Defendant Cole moves to compel the State Department to produce unredacted document portions. Defendant Cole argues that the communications are factual rather than deliberative, placing them outside the scope of the deliberative process privilege.Defendant Cole also argues that even if the document portions qualify for the deliberate process privilege, her due process rights outweigh the government's privilege.
Doc. 107.
Id. at 6-7.
Id. at 7-8.
The government responded that it has not seen the redacted portions and cannot characterize what the redacted portion of the documents involve. The government does not oppose in camera review of the documents.
Doc. 110.
Id. at 2.
For the reasons presented below, the Court ORDERS the State Department to provide the documents for in camera review.
I. Background
Defendant Cole ran an international adoption business, European Adoption Consultants. An administrative proceeding involving that company laid the groundwork for this criminal case. In 2016, the State Department reviewed a series of complaints about European Adoption Consultants. The Department issued a notice of temporary debarment, requiring the company “to immediately cease engaging in intercountry adoptions.”
European Adoption Consultants, Inc. v. Pompeo, 18-CV-1676, 2020 WL 515959, at *1 (D.D.C. Jan. 31, 2020), appeal dismissed, 20-5053, 2020 WL 3406482 (D.C. Cir. May 28, 2020).
Id.
The State Department conducted a hearing the following year. After reviewing written submissions by the adoption company and the Department, the Hearing Officer issued findings. According to her findings, the State Department proved that European Adoption Consultants committed fourteen separate violations of 42 U.S.C. § 14944 and 22 C.F.R. § 96, Subpart F. The District Court for the District of Columbia upheld these findings.
Id. at *2.
Id.
Id. at *1.
The State Department communications at issue for Defendant Cole's motion relate to the State Department investigation and debarment decision.
Doc. 107 at 6-8.
II. Discussion
The deliberative process privilege applies to “documents reflecting advisory opinions, recommendations, and deliberations that are part of a process by which Government decisions and policies are formulated.” Material only qualifies for the privilege if it is (1) “predecisional”; and (2) “deliberative.”
Dep't of Int. v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (quoting N. L. R. B. v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)).
Loving v. Dep't of Def., 550 F.3d 32, 38 (D.C. Cir. 2008) (quotation marks omitted).
“The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need.” Courts evaluate need “flexibly on a case-by-case, ad hoc basis.” Courts consider factors such as relevance, “the availability of other evidence, the seriousness of the litigation, the role of the government, and the possibility of future timidity by government employees.”
In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997).
Id.
Id. at 737-38 (quotation marks omitted).
Where parties dispute the validity of a privilege claim, district courts can order in camera inspection to rule on validity, document by document. Here, the government does not oppose in camera review to assess the State Department's deliberative process claim over the communications.
United States v. Grable, 98 F.3d 251, 257 (6th Cir. 1996).
Doc. 110 at 2.
The Court orders the State Department to produce the communications over which it claims privilege. The Court will review the communications in camera. The Court's in camera inspection will focus on three issues: (1) whether the deliberative process privilege applies; (2) whether Defendant Cole's need outweighs the government privilege over the materials; (3) whether the withheld materials are relevant to Cole's defense; and (3) whether the materials are exculpatory, requiring disclosure to Defendant Cole.
III. Conclusion
For the stated reasons, the Court ORDERS the State Department to provide the unredacted communications for in camera review. The State Department should provide digital copies through an email to this Court's courtroom deputy.
IT IS SO ORDERED.