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United States v. Malik

United States District Court, D. Kansas

September 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
AFAQ AHMED MALIK, Defendant.

          MEMORANDUM AND ORDER

          Teresa J. James U.S. Magistrate Judge.

         This is a denaturalization case brought by Plaintiff United States of America (“the Government”) against naturalized citizen Defendant Afaq Malik (“Malik”). This matter is pending before the Court on Malik's Motion to Compel Discovery Response and for Sanctions (ECF No. 113) and Motion for Leave to Conduct Supplemental Discovery (ECF No. 116). Malik requests an order compelling production of documents from the Government and for sanctions. He also requests leave to conduct supplemental discovery. The Government opposes the motions. As explained below, the Court grants Malik's Motion to Compel Discovery Response. Malik's request for sanctions and Motion for Leave to Conduct Supplemental Discovery are both taken under advisement pending the Government's production of the discovery ordered in this Memorandum and Order.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Malik served his first set of written discovery requests upon the Government on December 9, 2015. Request for Production No. 3 sought “documents related to [Malik] . . . and the allegations in the Complaint.” Request No. 5 asked the Government to produce:

any documents utilized, consulted, created, or relied upon by the Fraud Detection and National Security Directorate (FDNS), Homeland Security Investigations (HSI) or any other federal or state agency in investigating [Malik], . . ., including any person's notes, recordings, messages, emails, text messages, instant messages, voice messages, or any other documents related to [Malik].[1]

         On January 8, 2016, the Government served its Response to Malik's First Interrogatories and Requests for Production of Documents and ESI, [2] and a two-page privilege log. The Government objected to Request No. 3 as “overbroad and vague, ” and objected to both Request Nos. 3 and 5 to the extent they sought “documents containing information protected by the law enforcement, deliberative process, or attorney-client privileges, or the work-product doctrine.”[3]However, in response to Request No. 5, the Government also incorporated its response to Request No. 2, stating it would produce some specific documents and “to the extent there [were] additional responsive documents, [the Government ] intends to produce such documents with appropriate redactions.” Also on January 8, 2016, Malik served the Government with a copy of his Pakistani Notice of Divorce as part of his Rule 26(a) disclosures.

         On January 9, 2016, Malik informed the Government that he believed the Government's responses were inadequate. On February 9, 2016, the Government clarified its objections. On February 10, 2016, Malik filed a motion to compel documents with respect to the Government's January 8, 2016 discovery responses, seeking production of three documents the Government withheld or redacted under the deliberative process privilege or law enforcement privilege. Malik's motion did not raise any other issue with respect to the Government's discovery responses and objections. On June 7, 2016, after the motion to compel was fully briefed, the Court denied Malik's motion, finding that the documents and redactions were protected from disclosure under the asserted privileges.[4]

         The original Scheduling Order deadline for the parties to complete discovery was March 10, 2016, but that deadline was extended three times, ultimately to August 19, 2016.[5] The final pretrial conference was held on September 19, 2016. The following week, on September 28, 2016, the parties informally advised the Court of the Government's intent to move to reopen discovery. Malik opposed any such motion for further discovery.[6] The Government later advised the Court that it would not be filing a motion to reopen discovery.[7] The Pretrial Order (ECF No. 75) was entered on September 29, 2016.

         On November 30, 2016, counsel for the Government emailed a document to Malik's counsel, stating the document “[was] responsive to Request for Production No. 5.”[8] The document was a copy of the Homeland Security Investigations (“HSI”) Report of Investigation regarding Malik's Pakistani Notice of Divorce (“Interim Report”). It is date stamped November 18, 2016, but shows a “Date Approved” of September 20, 2016, and a “Case Opened” date of March 2, 2016.[9] The Interim Report revealed that on February 25, 2016 the HSI Kansas City office received a request to assist in the civil denaturalization of Malik, and on June 14, 2016 investigators traveled to the Bhara Kahu, Pakistan Union Council's office to inquire about the Notice of Divorce Malik had produced in his Rule 26 initial disclosures. The investigators inspected Malik's Pakistan Union Council file (the “Pakistani file”) and found it contained a Notice of Divorce similar to the one Malik previously produced. However, the report noted three discrepancies between the two Notices of Divorce. The Interim Report stated that the Secretary of the Union Council verified the Notice of Divorce from the Pakistani file with his signature, date, and stamp, provided the investigators a copy, and HSI Islamabad would send a scanned copy of the verified document to HSI Kansas City “via email.” The Interim Report concludes with the statement: “Investigation continues.”[10]

         Malik's counsel replied to the November 30, 2016 email, asking that the verified copy of the divorce decree from the Pakistani file mentioned in the Interim Report, be forwarded to him.[11] On December 1, 2016, counsel for the Government replied, stating the Interim Report “was the only document [he] received to date. It was not accompanied by any attachments.” Government counsel further advised that he “raised the issue with [his] clients and [would] provide those documents if and when [he was] able to obtain them.”[12]

         Later on December 1, 2016, counsel for the Government emailed the referenced verified copy of the Notice of Divorce to Malik's counsel. That document bears the handwritten notation “verified as per record” and the stamp of “Secretary Union Council Bhara Kahu Federal Area Islamabad” next to the handwritten date June 14, 2016.

         On December 5, 2016, Malik's counsel sent an email expressing his frustration that the Government had withheld responsive documents and asking whether the Government's counsel was “aware of any additional documents or ESI responsive to [Malik's discovery] requests that [hadn't] been produced or identified on a privilege log.”[13] Malik's counsel also inquired whether the Government's former counsel or his assistant were aware of the verified divorce document in June 2016, or the report claiming discrepancies in September 2016.[14]

         Counsel for the Government replied by email the same day, stating the Government strongly disagreed with Malik's “characterization of the Government's production in this case.”[15]The email stated that the Government produced the Interim Report promptly and the “[Department of Justice] did not know of such documents until late-November 2016.”[16] The email concluded “[f]inally, as we have previously indicated, based on our discussions with our clients, [counsel for the Government] are not aware of any other documents or ESI in this case that you are interested in or would deem responsive.”[17]

         On May 19, 2017, Malik's counsel emailed counsel for the Government, asking if there had been any movement in the ongoing investigation into Malik's Pakistani divorce decree and whether there were any additional documents that would need to be produced.[18] The email also indicated Malik's intent to depose the author of the Interim Report if the author would be testifying at trial.[19]

         On May 25, 2017, counsel for the Government sent an email to Malik's counsel, which stated that the investigation into Malik's Pakistani divorce was closed “last year” and attached the HSI's final report of the investigation (“Final Report”).[20] The Final Report was dated May 24, 2017, with an October 24, 2016 “Date Approved, ” and stated again that HSI received a request to assist with the investigation on February 25, 2016.[21] It also stated that “[o]n September 10, 2016, the HSI Kansas City office requested to close the case, as they had received all the information, which was being investigated.”[22] The Final Report concluded, “Investigation is closed.”

         On June 9, 2017, Malik's counsel emailed the Government asking that it produce the February 25, 2016 and September 10, 2016 communications referenced in the Final Report.[23]

         On June 22, 2017, the Government produced 22 pages of documents associated with the Final Report, including redacted February 2016 emails.[24] The Government also produced a privilege log for five of the February 2016 emails it produced with the substance redacted.

         On July 4, 2017, Malik filed his Motion to Compel Discovery Response and for Sanctions (ECF No. 113), Memorandum in Support of Motion to Compel Discovery Responses and for Sanctions (ECF No. 114), and Motion for Leave to Conduct Supplemental Discovery (ECF No. 116).[25] On August 3, 2017, the Government filed a letter (ECF No. 124) advising that it was no longer claiming the law enforcement privilege for the February 2016 emails and attached its amended privilege log. Malik filed his response (ECF No. 125) to the Government's letter on August 14, 2017, in which he maintains the Government's amended privilege log is still deficient with regard to the assertions of attorney-client privilege and work product as to these emails.

         On August 22, 2017, the Court ordered the Government to submit unredacted copies of the emails listed on the privilege log for an in camera review.[26] The Government submitted unredacted copies of the five emails on August 22, 2017. On August 29, 2017, Malik filed a motion to continue the October 4, 2017 court trial date.

         II. MOTION TO COMPEL DISCOVERY

         Malik requests an order compelling the Government to produce documents and electronically stored information (“ESI”) responsive to Request No. 5. He also requests the Government be compelled to produce unredacted copies of the five emails listed on the privilege log because they are either not subject to, or the Government has waived, any claimed privilege or protection. He alternatively requests that the Court conduct an in camera review of the redacted emails to determine whether they are in fact privileged or protected. Finally, he asks the Court to sanction the Government for its repeated failure to disclose evidence he describes as “exculpatory.”

         As an initial matter, the Government asks the Court to summarily deny Malik's motion to compel on the grounds Malik failed to timely raise any issue with the Government's objections to Malik's Request No. 5. It argues Malik should be foreclosed from raising an issue with the objections some nineteen months after the Government served its original discovery responses and objections. The Court rejects this argument. In response to Malik's Request No. 5, the Government objected on privilege grounds but stated that, subject to the objection it would produce responsive documents with necessary redactions. The Government also had an ongoing duty to timely supplement its discovery response and production of documents with any additional responsive documents subsequently identified. Malik moved to compel in a timely manner with respect to the Government's supplemental production of documents responsive to Request No. 5 and its privilege log, which the Government did not produce until June 22, 2017.[27]

         The Government also argues that, with respect to its June 22, 2017 production of documents, it was under no obligation to produce such documents after the close of discovery, [28]but nevertheless it voluntarily produced all non-privileged relevant information pursuant to Rule 26(b)(1). The Court disagrees with the Government's assertion that it was under no obligation to produce the emails and other documents regarding the HSI investigation. These emails were requests to investigate and communications regarding investigation of Malik's foreign divorce documents, which were responsive to Request No. 5 as documents “utilized, ” “created” or “relied upon” by the Government in “investigating [Malik].”[29] These emails were sent in February 2016, shortly after the Government's discovery responses to this set of Malik's requests for production were due and while Malik's first motion to compel as to this set of discovery requests was pending.

         The Government makes additional arguments why the Court should deny Malik's motion to compel. These arguments will be addressed in more depth below.

         A. Request to Apply Brady Criminal Discovery Standards

         Malik characterizes the discovery he seeks in his motion as “exculpatory, ”[30] and urges the Court to adopt and apply the criminal discovery standards set forth in Brady v. Maryland[31] in this denaturalization proceeding commenced pursuant to 8 U.S.C. § 1451(a). Malik argues that while civil denaturalization proceedings are not criminal in nature, this Court should apply the Brady standard, which requires the government to disclose exculpatory evidence to a defendant in a criminal case. He claims it is warranted here given the statutory burden of proof and the extreme consequences that will result to him if denaturalized. He relies upon the case, Demjanjuk v. Petrovsky, where the Sixth Circuit held that “Brady should be extended to cover denaturalization and extradition cases where the government seeks denaturalization or extradition based on proof of alleged criminal activities of the party proceeded against.”[32]

         The Government contends discovery in civil denaturalization actions is governed by the Federal Rules of Civil Procedure and the unique discovery obligations applicable to criminal cases, including those in Brady, do not apply. It argues courts have declined to apply Brady in all but the most exceptional civil proceedings. The Government points out that Malik cites only the Demjanjuk case for his bold proclamation that “courts have generally applied criminal discovery standards to denaturalization cases.”

         In the absence of any controlling Supreme Court or Tenth Circuit precedent, the Court declines to adopt and apply the criminal discovery standards set forth in Brady v. Maryland[33] to this denaturalization case. “A denaturalization suit is not a criminal proceeding. But neither is it an ordinary civil action since it involves an important adjudication of status.”[34] The Sixth Circuit Court of Appeals case cited by Malik, Demjanjuk v. Petrovsky, is not controlling on this Court and is furthermore factually distinguishable. In Demjanjuk, the government sought to denaturalize Demjanjuk, an alleged Nazi war criminal, based both on his misrepresentations when he applied for citizenship and the capital charges brought against him.[35] These facts are quite different from this case where the Government is not seeking denaturalization based upon allegedly criminal activity.[36] Discovery thus far in this civil denaturalization case has proceeded under the Federal Rules of Civil Procedure and should continue to proceed under those rules. Malik's request to apply the Brady criminal discovery standards in this case is denied.

         B. Request for In Camera Review of Emails Listed on the Government's Privilege Log

         Malik raises an issue with the sufficiency of the privilege logs provided by the Government with respect to the five February 2016 emails listed on the log. Malik argues that- based upon the information provided on the privilege log-the emails listed do not appear to be protected from disclosure as attorney work-product or under the attorney-client privilege, and the Government should not be permitted to shield from disclosure otherwise discoverable evidence by invoking the protection without explanation. He alternatively requests that the Court conduct an in camera review of the emails listed on the privilege log to determine whether they are in fact privileged or protected.

         Based upon its review of the parties' briefing, the Government's privilege logs, and the redacted emails, and in light of the facts and circumstances of this case, the Court ordered the Government to submit unredacted copies of the five emails listed on the Government's privilege log for in camera review. The Court has completed its in camera review of the emails at issue.

         C. Waiver of Attorney-Client Privilege and Work Product Protections of Emails Listed on Privilege Log

         Malik challenges the Government's assertion of the attorney-client privilege for one of the emails and the assertion of “attorney work product privilege” for all five emails listed on the June 22, 2017 privilege log. Malik argues that the Government has waived any claimed privilege and work product protections for these emails by failing to timely assert privilege or work product.

         Federal Rule of Civil Procedure 26(b)(5)(A) provides that when a party withholds information otherwise discoverable by claiming that the information is privileged or subject to ...


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