US Response to Motion to Compel Discovery Put 'Cart Before Horse,' 3D Pen Importer Says
An importer of 3D pen kits again said Feb. 14 that the U.S. hadn’t met the procedural requirements to shield unredacted internal CBP communication under the deliberative process privilege (Quantified Operations Limited v. U.S., CIT Consol. # 22-00178).
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The importer moved in January to compel discovery of the communications amid its classification dispute before the Court of International Trade (see 2501060043). It and consolidated plaintiff Wobbleworks argue that their products are toys under Harmonized Tariff Schedule heading 9502, not rubber- or plastic-working machines under heading 8477 (see 2402070017). Quantified argued that “[w]ithout the materials,” they wouldn’t be able to “effectively vindicat[e] their statutory rights.”
It also argued that denying the motion “could incentivize the government to assert the deliberative process privilege broadly, potentially shielding unjustified actions from scrutiny.”
The U.S.’s response to the importer’s motion (see 2502050047) incorrectly focused on the relevance of the redacted portions of the communications, it said, thus “putting the proverbial cart before the horse.” The government must first demonstrate that the privilege applies before it can argue relevance, it said.
It again said the government can’t access the privilege because it failed to submit a declaration for “months” after asserting it. It disagreed with the characterization of Pacific Gas & Electric Co. v. United States as an “outlier,” saying that “in fact it reflects a well-established principle that timely assertions of privilege are essential.”
And it again argued that the government hadn’t shown that the withheld communications were predecisional deliberations, providing only a “boilerplate declaration” that “lacks sufficient detail to support these claims.” The privilege is intended to be narrowly asserted, as, otherwise, it “can lead to abuse,” Quantified said.