DOJ Says It Can't Provide Former Employees' Addresses, Unredacted Emails in Discovery

December 22, 2023 by Kathryn Nucci|Litigation

An importer seeking to compel the government to provide addresses of former CBP employees and underacted versions of documents handed over during discovery didn't show the sufficient need for, or relevance of, either, DOJ said Dec. 20 (Lutron Electronics v. U.S., CIT # 22-00264).

Lutron is challenging CBP's tariff classification of its “intelligent shade machines” as curtains and blinds under the Harmonized Tariff Schedule, subject to Section 301 tariffs. In October it filed a motion to compel DOJ to provide several pieces of information that, during discovery, DOJ had refused to provide (see 2310160061). It requested the last known addresses of all former CBP agents who had been consulted in the classification proceedings, including one who had authored a 2007 scope ruling on Lutron’s entry.

“There can be no reasonable dispute that the former CBP personnel are relevant to this matter,” Lutron said.

It also asked for the unredacted versions of the documents the government handed over to Lutron after Lutron’s first production request, saying DOJ had “gone overboard.”

DOJ asked CIT to deny the motion. It said the Privacy Act prohibits disclosure of the last known addresses of former CBP employees, but that, to try to help the importer, it attempted, and failed, to track down the people Lutron wanted to depose.

The Privacy Act only allowed production of the employees’ last known addresses if Lutron could meet the burden of proof that that information was relevant to the claims and defenses in the case, DOJ said. Lutron’s “conclusory statement,” on its own, didn't establish relevance, it said.

“Lutron has not identified the specific information or knowledge that it intends to seek from each former CBP employee, and how that information bears on the claims or defenses in this action,” it said.

It also said the unredacted documents Lutron requested were protected from disclosure by the government’s deliberative process privilege. Those documents consisted “primarily of information and analysis regarding the classification of the merchandise” prior to the 2007 scope ruling and the 2022 classification, including mental impressions, advice, recommendations and expressions of opinion, DOJ said.

Although a sufficient showing of need for privileged documents can help a requester gain access to them regardless, Lutron hasn't shown such a need, DOJ said.