[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Abrego-Garcia v. Noem, __ F.R.D. ___, 2025 WL 1166402 (D. Md. Apr. 22, 2025)(Xinis, J.), plaintiffs notified the Court of “seemingly intractable discovery disputes….” The case is before the District Court after the United States Supreme Court’s ruling in Noem v. Abrego Garcia, 604 U.S. –––– (2025).
The District Court expedited its ruling, deciding the issues without a motion to compel:
To facilitate the just and expeditious production of discovery, the Court rules on Defendants’ stated objections included within their answers to Interrogatories and responses to Requests for Production of Documents (“RPDs”).
Abrego-Garcia v. Noem, __ F.R.D. ___, 2025 WL 1166402 (D. Md. Apr. 22, 2025).
Initially, the Court addressed four “general objections.” Then it considered several specific objections.
FIRST GENERAL OBJECTION
Defendants objected to discovery because they claimed it was based on the “false premise that the United States can or has been ordered to facilitate Abrego Garcia’s release from custody in El Salvador.” [Emphasis in original]. The Court rejected that objection, writing:
Defendants—and their counsel—well know that the falsehood lies not in any supposed “premise,” but in their continued mischaracterization of the Supreme Court’s Order. That Order made clear that this Court “properly required the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” See Noem v. Abrego Garcia, 604 U.S. –––– (2025), slip op. at 2; see also Abrego Garcia v. Noem, No. 25-1404, 2025 WL 1135112, at *1 (4th Cir. Apr. 17, 2025). Defendants’ objection reflects a willful and bad faith refusal to comply with discovery obligations. The objection is overruled.
Id.
SECOND GENERAL OBJECTION
Defendants’ second objection was on privilege. The Court wrote:
Equally specious, Defendants’ objections on the grounds of privilege are rejected. Defendants invoke in name only a range of protections—attorney-client privilege, the work-product doctrine, the deliberative process privilege, the state secrets privilege, and an undefined “governmental privilege”—without providing any supporting information or analysis…. [T]he proponents of the privilege must produce a privilege log that specifically identifies each document or communication and the type of privilege being asserted. See Fed. R. Civ. P. 26(b)(5); see also D. Md. Loc. R. App. A, Guideline 10. And yet, Defendants and counsel stubbornly refuse to provide any basis for the same. Given that this Court expressly warned Defendants and their counsel to adhere strictly to their discovery obligations, see Hr’g Tr. 11:24–12:2, Apr. 16, 2025 (“Because in fairness, Mr. Ensign, [if] you’re not going to answer the questions that the plaintiffs put within the scope of my order, then you’ll justify why. You’ll cite privilege, you’ll follow the rules, I’ll make a determination.”), their boilerplate, non-particularized objections are presumptively invalid and reflect a willful refusal to comply with this Court’s Discovery Order and governing rules.
Id.
The Court added: “Although Defendants state now that they are willing to ‘meet and confer’ with counsel about the production of such a log…, their repeated refusals to meet and confer about much of anything else undermine the reliability of this assertion…. The Court thus finds this offer was not made in good faith.”
It wrote:
Nor does the Court find Defendants’ protestations regarding the abbreviated time-line persuasive. For weeks, Defendants have sought refuge behind vague and unsubstantiated assertions of privilege, using them as a shield to obstruct discovery and evade compliance with this Court’s orders. Defendants have known, at least since last week, that this Court requires specific legal and factual showings to support any claim of privilege. Yet they have continued to rely on boilerplate assertions. That ends now. If Defendants want to preserve their privilege claims, they must support them with the required detail. Otherwise, they will lose the protections they failed to properly invoke. Accordingly, by no later than 6:00 PM on April 23, 2025, Defendants shall supplement their answers and responses to provide the specific legal and factual bases for each asserted privilege and produce a privilege log that fully complies with the Federal Rules of Civil Procedure and this Court’s Local Rules. See Fed. R. Civ. P. 26(b)(5)(A)(ii); see also D. Md. Loc. R. App. A, Guideline 10.
Id.
Defendants have known, at least since last week, that this Court requires specific legal and factual showings to support any claim of privilege. Yet they have continued to rely on boilerplate assertions. That ends now. If Defendants want to preserve their privilege claims, they must support them with the required detail. Otherwise, they will lose the protections they failed to properly invoke.
Abrego-Garcia v. Noem, __ F.R.D. ___, 2025 WL 1166402 (D. Md. Apr. 22, 2025).
THIRD GENERAL OBJECTION
Defendants objected to discovery predating April 4, 2025. The Court wrote:
Defendants’ arbitrarily cramped reading of the Court’s order is rejected. At a minimum, the discovery period contemplates the time immediately preceding Abrego Garcia’s lawless seizure on March 12, 2025, and his transport to and confinement in CECOT,[1] which all predate April 4, 2025. This is particularly relevant to Abrego Garcia’s custodial status today, if for nothing else, the Plaintiffs are entitled to discover all relevant and probative evidence that undermines the Defendants’ incomplete and evasive answer that Abrego Garcia is in the “sovereign, domestic custody” of El Salvador. Indeed, custody can be joint, and custodial status may be controlled by the Defendants acting in concert with El Salvador. The Court thus overrules Defendants’ “beyond the scope” objections and directs that Defendants supplement their discovery answers and responses accordingly.
Id.
FOURTH GENERAL OBJECTION
Defendants’ fourth general objection was that the requests were beyond the scope of discovery. The requests sought information about Abrego Garcia’s removal to El Salvador, his initial placement, and continued confinement.
The Court overrules this objection. Information regarding Abrego Garcia’s removal, as well as placement and confinement in CECOT cut to the heart of the inquiry; namely, what steps, if any, Defendants have taken or will take “to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” …. The areas are also relevant and probative as to whether Defendants have made “in good faith all reasonable efforts to comply” with this Court’s Orders.
Id.
SPECIFIC OBJECTIONS
Having addressed the General Objections, the Court focused on seven specific objections.
As to Answer to Interrogatory No. 5, Defendants named “exactly two individuals” who were involved in Abrego Garcia’s removal and confinement in El Salvador. The Court found this to reflect “a deliberate evasion of their fundamental discovery obligations.”
Answer No. 7 was “vague, evasive, and incomplete. Defendants’ nonspecific reference to ‘a conversation’ with ‘a representative’ does not nearly satisfy their obligation to provide all relevant, nonprivileged information with specificity.”
Defendants prevailed on Interrogatories 9, 10, and 11. “To facilitate expedited and targeted discovery, Plaintiffs are directed to refine their requests to focus specifically on any agreement, arrangement, or understanding between the United States and El Salvador related to the removal and confinement of Abrego Garcia and any other individuals who were transported with him on March 15, 2025.”
As to Interrogatory No. 12, defendants were ordered to answer:
The interrogatory is limited to all efforts the Government has taken to facilitate the return of aliens wrongfully removed to El Salvador. The request is particularly relevant and probative to whether Defendants are taking any steps in good faith to comply with this Court’s facilitation order involving the very country to which Abrego Garcia’s was wrongfully removed.
Abrego-Garcia v. Noem, __ F.R.D. ___, 2025 WL 1166402 (D. Md. Apr. 22, 2025).
The interrogatory is limited to all efforts the Government has taken to facilitate the return of aliens wrongfully removed to El Salvador. The request is particularly relevant and probative to whether Defendants are taking any steps in good faith to comply with this Court’s facilitation order involving the very country to which Abrego Garcia’s was wrongfully removed. The Court also rejects that this narrow request is “unduly burdensome” because Defendants have made absolutely no showing as to why it cannot, with a modicum of due diligence, answer the question. See Fed. R. Civ. P. 26(b)(2)(B). Merely saying so will not suffice, especially where Defendants keep such records in the ordinary course.
Id.
The same objections to Interrogatory No. 13, led to the same decision.
Next:
As to Interrogatory No. 14 seeking the complete factual bases for Defendants’ assertion that Abrego Garcia is a member of MS-13, Defendants’ relevancy and scope objections are rejected. Defendants have previously articulated in their daily updates as to Abrego Garcia’s custodial status and his potential return that DHS would eventually take Abrego Garcia into custody and either remove him to another country or terminate withholding of removal because of his purported “membership in MS-13, a designated foreign terrorist organization.” … Defendants cannot invoke the moniker of MS-13 as responsive to the Court’s previous order…, then object to follow-up interrogatories seeking the factual bases for the same. Defendants must supplement this answer.
Id.
Because discovery was targeted and expedited, “the Court finds Interrogatory No. 15 overbroad and not squarely relevant to the issues before the Court. The request for ‘the identity and role of every U.S. official or employee with knowledge of the facts alleged in the Complaint,’ as well as those involved in any submission to this Court, the Fourth Circuit or the Supreme Court, is too broad to extract a meaningful and timely response. The interrogatory is stricken as written.”
THE COURT’S CONCLUSION
“Based on the foregoing, the Defendants’ objections are largely overruled and sustained in part only as to Interrogatories 9–11 and RPDs 6–8. Plaintiffs must narrow Interrogatories 9–11 and RPDs 6–8 consistent with this Order and resubmit to Defendants by no later than 8:00 PM tonight. Defendants shall answer and respond to all outstanding discovery requests and supplement its invocation of privilege as directed by no later than 6:00 PM April 23, 2025.”
Notes
[1] “CECOT” is the terrorism confinement center in El Salvador. CECOT | Terrorism Confinement Prison, Mega-Prison, El Salvador, Nayib Bukele, Donald J. Trump, Human Rights, & Facts | Britannica
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