Judge Jesse Furman U.S. District Judge Jesse Furman. Photo: Rick Kopstein

The U.S. Supreme Court has denied a request by the Trump administration to stay the depositions of Commerce Secretary Wilbur Ross and an official at the U.S. Department of Justice in New York Attorney General Barbara Underwood’s census lawsuit.

Justice Ruth Bader Ginsburg said in an order provided by a spokesperson for the high court that those depositions, along with other discovery, may proceed in the lawsuit as scheduled as the court reviews a July decision by the district court allowing extra-record discovery in the case.

“The application is denied without prejudice, provided that the Court of Appeals will afford sufficient time for either party to seek relief in this court before the depositions in question are taken,” Ginsburg wrote.

The depositions of Acting Assistant Attorney General for Civil Rights John Gore and Ross are scheduled for Oct. 10 and 11, respectively. The U.S. Court of Appeals for the Second Circuit has, meanwhile, stayed Ross’ deposition while it reviews the decision from U.S. District Judge Jesse Furman of the Southern District of New York that allowed it. The Second Circuit denied a request by the administration to stay Gore’s deposition earlier this week.

Furman’s decision to allow Ross’ deposition is scheduled to go before the Second Circuit on Oct. 9, just two days before his deposition. Discovery in the case is scheduled to end on Oct. 12, with a firm trial date set by Furman for Nov. 5.

The Trump administration formally asked the U.S. Supreme Court this week to review a decision by Furman in July that allowed extra-record discovery in the case, which subsequently led to requests for Ross and Gore to be deposed. The Second Circuit denied the administration’s petition for a writ of mandamus on the decision last month.

Neither the Commerce Department nor the U.S. Department of Justice immediately commented on the Supreme Court’s decision Friday afternoon.

Furman, meanwhile, rejected an argument from the Trump administration on Friday that all intra- and inter-agency communications requested by Underwood’s office in the lawsuit should be privileged.

He said in the decision that while some agency communications over a citizenship question on the census are protected by deliberative process privilege, many of the documents the administration wants to withhold are not.

Attorneys with the DOJ wanted to block Underwood’s office from obtaining certain documents through discovery that they claimed pertained to the government’s decision-making process on the citizenship question.

Underwood’s office had sought to compel the administration to produce those documents last month. They said in a filing that the documents concerned communications within the Trump administration after the decision had already been made to add the citizenship question, which they argued would exempt them from deliberative process privilege.

Furman, in part, agreed with Underwood’s office in his decision on Friday, saying that privilege only protects communications before the decision was made that were also part of the policy-making process. Any other interpretation would exclude a bulk of communications from discovery that has no real reason to be withheld, Furman said.

“Put differently, where ‘messaging’ communications amount to little more than deliberations over how to spin a prior decision, or merely reflect an effort to ensure that an agency’s statement is consistent with its prior decision, protection would do little to advance the purposes underlying the privilege,” Furman wrote.

Furman did allow the administration to withhold certain documents that Underwood’s office sought in the lawsuit. He blocked the office from obtaining drafts of the so-called “Gary Letter,” a letter from the DOJ to the Commerce Department in December 2017 that formally requested the agency to reinstitute the question about citizenship.

He also allowed the administration to withhold an email discussing a pending public document request and an email concerning a response to a commissioner of the U.S. Civil Rights Commission.

Both decisions on Friday are the latest in a series that denied requests from the Trump administration to either withhold documents or stay discovery. Furman has denied two requests by the administration since August to stay discovery altogether pending review by higher courts.

Underwood’s office has welcomed the steady line of decisions denying the administration’s requests. A spokeswoman for the office did not offer additional comment on Friday’s decisions.

Underwood’s office filed the lawsuit in April after the Commerce Department announced it would add a question about immigration status to the next census. Underwood’s office has argued the question will decrease turnout for the census in states with large immigrant populations, like New York.

That could decrease the number of representatives those states have in Congress and the Electoral College, Underwood’s office argued. It could also mean less federal funding in areas like education and health care. Seventeen other states have joined Underwood on the suit.

Senior Trial Counsel Elena Goldstein and Executive Deputy Attorney General Matthew Colangelo are leading the case for New York. Kate Bailey is the lead attorney for the Trump administration.


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