Federal panel sends consolidated NSA surveillance suits to San Francisco judge

Federal panel sends consolidated NSA surveillance suits to San Francisco judge

[JURIST] The Judicial Panel on Multidistrict Litigation [official website] has ordered [PDF text] that seventeen cases challenging the legality of the NSA's domestic surveillance program [JURIST news archive] be transferred to the chief judge of the US Northern District of California [official website]. In an order issued Wednesday, the panel wrote:

On the basis of the papers filed and hearing session held, the Panel finds that these actions involve common questions of fact, and that centralization under Section 1407 in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. All actions are purported class actions sharing factual and legal questions regarding alleged Government surveillance of telecommunications activity and the participation in (or cooperation with) that surveillance by individual telecommunications companies. Centralization under Section 1407 is necessary in order to eliminate duplicative discovery, prevent inconsistent pretrial rulings (particularly with respect to matters involving national security), and conserve the resources of the parties, their counsel and the judiciary. …

We conclude that the Northern District of California is an appropriate transferee forum in this docket because the district is where the first filed and significantly more advanced action is pending before a judge already well versed in the issues presented by the litigation. One of the Government's key arguments for centralization in this docket is its contention that, because of security concerns associated with the production of highly classified information, a framework should be created whereby a single transferee court (rather than the multiple courts where MDL-1791 actions and potential tag-along actions are now pending) would be charged with the task of reviewing any classified information that might need to be produced in connection with the plaintiffs' claims and the Government's assertion of the state secret defense. In that regard, the California district is one of the two districts in this litigation where a court has already established and utilized a procedure for reviewing classified information that the Government deems necessary to decide its state secret claim. On the other hand, the District of District of Columbia, which the forum choice of the movants, the Government and other responding defendants, is a district where no constituent MDL-1791 action is now pending. Centralization in the District of Columbia forum would thus require the very duplication and expansion of access to classified information that the Government deems to be so perilous.

The panel assigned the cases to Chief Judge Vaughn Walker [official profile; SF Chronicle profile], described by the San Francisco Chronicle as an "independent-minded conservative." Government attorneys asked the JPML to consolidate [JURIST report] a group of coordinated lawsuits [JURIST report] brought by the American Civil Liberties Union [advocacy website] against telecommunications companies so that the government can invoke the state secrets privilege and have all the cases dismissed.

Last week, Walker refused to dismiss [order, PDF; JURIST report] a separate lawsuit against AT&T [EFF case materials] brought by the Electronic Frontier Foundation alleging that AT&T violated citizens' rights to privacy and several federal statutes when it allowed the NSA to use its infrastructure to wiretap US citizens as part of the domestic surveillance program. The DOJ tried to invoke the state secrets privilege [News Media & the Law commentary] and have the case dismissed, but Walker ruled that the case should continue. He has since delayed the lawsuit [JURIST report] pending an appeal [petition, PDF] to the US Court of Appeals for the Ninth Circuit.