Camel Energy Says US Nearly 'Weaponizing' Redactions in Suit on Goods Excluded Under UFLPA

Camel argued the U.S. has engaged in an "extensive, almost weaponized use, of redactions in and withholding of its documents and assertion of privilege" during Bristol's deposition, which has prevented the company from "learning the basic factual underpinnings of the Government’s decision to exclude these goods." The exporter said the U.S. excluded the company's goods, "but it refuses to reveal why," adding that neither the "deliberative process privilege" nor the "law enforcement privilege" applies.

Camel Energy filed suit last year to contest the exclusion of its battery entries, arguing in its complaint that it didn't violate the UFLPA and that it wasn't given a chance to prove that the entries didn't violate the statute (see 2510270025). Since then, the trade court granted the company's motion to expedite its case (see 2511050003).

In its motion to compel, Camel Energy argued that the case should be "straightforward," and it anticipated a straightforward case, which is why it told the court the action would involve "minimal discovery and could proceed on an expedited schedule." However, the case "has become complicated" due to the government's extensive use of redactions and withholding of information, the exporter argued.

During the deposition of Bristol, the government's only named witness, the only explanation the U.S. gave for excluding Camel's goods was because the merchandise violates the UFLPA. However, Bristol then said "why and how the Government assumed the goods violated the UFLPA on entry is privileged." Counsel for Bristol told him not to answer questions from Camel's counsel on why the goods were detained or what fact gave rise to the potential UFLPA violation, Camel said.

Camel added that the government also obfuscated in its failure to produce key documents in the case that would let the exporter actually know why its goods were detained. The U.S. first "failed to produce a critical internal memo document," which the company only received a screenshot of from another CBP officer, "that disclosed that CBP may be acting upon secret internal guidance to automatically exclude Plaintiff’s merchandise." If the company hadn't received that screenshot from the other officer, it's "unclear if the Government would have ever produced what appears to now be the critical document in this litigation," the brief said.

The U.S. also redacted a batch of "emails, communications, and notes describing the factual underpinnings of CBP’s exclusion and denial of Camel Energy’s protests" so "as to be useless," the brief said.

Camel argued that the court must conduct an in camera review of the evidence to assess the validity of the government's claimed privileges and direct the U.S. to "produce versions of the documents that do not redact or withhold the facts, if any, on which the Government relied when making its determination that Camel Energy’s merchandise should be excluded under the UFLPA."

The company also argued that while the U.S. claims that the deliberative process privilege applies, the government "hasn’t even attempted to fulfill its legal obligation to prove [deliberative process privilege] applies." The U.S. hasn't made a formal claim of the privilege, shown actual personal consideration by a person empowered to claim the privilege or given a detailed explanation of why the documents and redactions fall within the privilege's scope, the brief said.

In addition, the privilege can't even be claimed for some of the documents, since they are "plainly post-decisional" and "must, logically, contain the facts supporting the Government's legal decision to exclude Camel Energy's merchandise," the brief said. The same is true of the law enforcement privilege, Camel argued.