3D Pen Importer Seeks to Compel Discovery After US Claims Deliberative Process Privilege
3D importer Quantified Operations on Jan. 5 asked the Court of International Trade to compel discovery in its classification case. The importer said the government was trying to hide behind the deliberative process privilege without meeting the procedural requirements for it (Quantified Operations Limited v. U.S., CIT Consol. # 22-00178).
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Quantified Operations and consolidated plaintiff WobbleWorks brought their case saying their pen kits should have been classified upon entry as toys under Harmonized Tariff Schedule heading 9503, not rubber- or plastic-working machines under heading 8477 (see 2402070017).
The importer said it asked the government for unredacted internal CBP communications regarding the sets’ classifications. But the U.S. refused to turn them over, asserting the deliberative process privilege.
The U.S. hasn’t met the procedural requirements for the privilege, however, it said, because the deliberative process privilege requires that the government submit an affidavit “from the head or a properly chosen delegate of the relevant agency” describing the “precise and certain reasons” each document was detrimental to CBP’s decision-making.
But “the government has not met any of the procedural requirements for any of the unredacted documents that are the subject of this motion,” it said.
It said the U.S. Court of Federal Claims case Pacific Gas held that the privilege must be asserted by either “the head of the agency that has control over the requested document” or by an employee to whom that head has “carefully delegate[d] that authority.” In this case, there wasn’t any evidence either the CBP’s head official or a delegated employee actually “personally” looked the documents over and invoked the privilege, Qualified said. Instead, it said, the privilege was invoked by government counsel.
And the government also hasn’t provided “precise and certain reasons” for refusing to hand over the unredacted documents, Qualified said, and it hasn’t explained, by affidavit or otherwise, "why the disclosure of each particular document would be detrimental to agency decision-making."
“The redaction log provided by counsel provides only vague and conclusory statements about ‘pre-decisional deliberative opinions’ without explaining with particularity how disclosure would harm agency decision-making,” it said.
Quantified also argued that, even if the U.S.’s process of claiming the privilege wasn’t found to be deficient, the communications in question weren’t covered by the privilege because they weren’t deliberative or pre-decisional.
If CBP’s communications were “focused on analyzing or responding to the [World Customs Organization’s] decisions regarding classification rather than debating internal policy options,” the communications wouldn’t be considered deliberative, it said. Rather, they would be “[f]actual analyses” or analyses of “external decisions,” it claimed.
The government’s prior classification position -- “(inconsistent with its current litigation position)” -- was also publicly available already, so there isn’t any risk of further harm from disclosure, it said. And a protective order would also be enough to provide “adequate safeguards” against harm if it was possible, it said.
But even if the importer ultimately lost on the prior two points, Quantified said, the documents should still be produced because the deliberative process privilege is a qualified privilege -- it can be revoked if a plaintiff has a “substantial evidentiary need” for the privileged information that outweighs the potential harm to the government. Quantified has that substantial need in its case, it said.
For example, considering the government had switched positions for the current litigation, the emails “appear highly relevant” for an attorney's fees claim under the Equal Access to Justice, it argued. It said that “the substantial justification of the government’s pre-litigation and litigation conduct must be evaluated together, making only one threshold determination for the entire civil action.”
It cited the 2015 CIT case International Custom Products v. U.S., in which the court looked at internal communications regarding the classification of a different product and found “multiple CBP officials had raised warnings about the need to revoke a ruling letter before rate-advancing entries, but these warnings were ignored by the agency.”
Qualified also said the court was its last resort; it tried to go through “proper discovery channels” for information about the communications, but was “thwarted by the government’s failure to produce an adequately prepared witness.”
The witness, it said, hadn’t been involved in the communications at issue because they hadn’t been employed by CBP at the time. And “relevant information was not made known to him during his deposition preparation, as would otherwise be expected per USCIT Rule 30(b)(6),” Quantified claimed.