CIT Asks for More Briefing on If Internal CBP Documents Relevant for Customs Suit

The Court of International Trade on March 26 ordered importer Lutron Electronics Co. to submit a supplemental brief further explaining its demand for redacted information in CBP's internal documents as part of a customs suit on the company's window shade machines. Judge Richard Eaton said Lutron must reconcile its motion to compel the documents with the holdings from Ford Motor Co. v. U.S., a 2010 U.S. Court of Federal Claims decision (Lutron Electronics Co. v. United States, CIT # 22-00264).

In the customs suit, Lutron and the U.S. disagreed on whether the "deliberative process privilege applies" to the redacted CBP information and whether Lutron "has overcome the privilege" if it does apply by showing that the need for the unredacted documents outweighs CBP's interest in non-disclosure.

Eaton first noted that discoverable material is "any nonprivileged matter that is relevant to any party's claim," adding that the deliberative process privilege is at issue here, since it shields deliberative "intra-governmental pre-decisional documents." Citing Ford, the judge said that the information must address issues "antecedent to the adoption of agency policy" to qualify as pre-decisional and that to be deliberative, the document "must reflect the give-and-take of the consultative process, rather than constituting a body of secret law."

The court found Ford to be instructive, since in that case, Ford sought to compel the Internal Revenue Service to produce internal documents pertaining to the development of a revenue ruling letter. The Ford court said the documents were "pre-decisional and deliberative, and therefore, privileged," since they discussed Ford's refund claims. The court then considered whether the need for the privileged documents to show that the revenue ruling merits little or no deference under the Supreme Court's Skidmore standard outweighed the IRS's interest in non-disclosure.

The Ford court said employing the Skidmore factors doesn't require consideration of internal government deliberations but that an evaluation of the government ruling's reasoning should be apparent solely from the ruling "itself and relevant precedent."

While Lutron here says CBP's unredacted analysis regarding its customs claims are "highly relevant," Eaton wondered if they are "indeed relevant at all." The judge said he's "inclined to find that the subject documents are pre-decisional and deliberative based on Customs' privilege log and declaration." The documents would reveal the agency's "pre-decisional analysis" and are thus privileged, shifting the analysis to whether the importer's need is greater than the need for the asserted privilege, the court noted.

Eaton found that, as in Ford, the documents here "do not bind the court" since it's the court's duty to "find the correct result" -- a process that doesn't turn on consideration of Skidmore deference. "In other words, it is hard to see how the documents, in unredacted form, that Plaintiff asks the court to compel Defendant to produce would be relevant to the court’s consideration of any claim that Skidmore deference should apply to Customs’ prior rulings, or to the ultimate determination of the correct classification of the subject shading systems," the decision said. The court said that Lutron shall submit a brief by April 9 explaining how the documents are needed.