E-Discovery Could Be Key in Trump Travel Ban Litigation
There are cases now pending—such as Washington v. Trump and Hawaii v. Trump—where the states are seeking extensive federal records via e-discovery to reject the Trump administration's travel ban. But Justice Department attorneys, who are representing the federal government, claim the information sought in the Washington case, much of it related to executive orders, is actually protected by various privileges.
As a result, e-discovery could play a key role in the litigation brought by several states against the travel ban. And as with many issues surrounding e-discovery, there is no bright-line rule to determine what information can and cannot be collected.
On the other hand, Leigh Ann Buziak, partner and chair of Blank Rome's general litigation practice group, argued, "The scope of discovery was defined by the Ninth Circuit, which considered comments that the president made during his campaign that the court concluded could be evaluated in the context of determining the intent of the executive order. Given that scope, it is difficult to say there is a heavy burden in going back to the beginning of the campaign."
In her opinion, "the more difficult issue, of course, will be sorting through the various deliberative process and executive privileges. However, one has to assume that the DOJ [Department of Justice] is very experienced in navigating those issues and that alone cannot be a heavy burden."
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“E-Discovery Could Be Key in Trump Travel Ban Litigation,” by Ed Silverstein was published in Legaltech News on April 17, 2017.