Arizona Dream Act Coalition et al v. Brewer et al, No. 2:2012cv02546 - Document 216 (D. Ariz. 2014)
Court Description: ORDER granting 210 Motion to Compel re privilege documents. See order for details. Signed by Judge David G Campbell on 1/15/2014.(DGC, nvo)
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Arizona Dream Act Coalition et al v. Brewer et al 1 Doc. 216 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Arizona Dream Act Coalition; Jesus CastroMartinez; Christian Jacobo; Alejandro Lopez; Ariel Martinez; and Natalia PerezGallagos, 11 14 15 ORDER Plaintiffs, 12 13 No. CV-12-02546-PHX-DGC v. Janice K Brewer, et al., Defendants. 16 17 Following a discovery conference call with the Court on December 6, 2013, and at 18 the Court’s direction, the parties filed briefs regarding application of the deliberative 19 process and attorney-client privileges. 20 documents and testimony concerning the policy of the Governor’s Office and the Arizona 21 Department of Transportation (“ADOT”) to deny driver’s licenses to individuals granted 22 deferred action status under the 2012 Deferred Action for Childhood Arrivals (“DACA”) 23 program. Doc. 210. Plaintiffs have submitted Defendants’ privilege log and portions of 24 deposition transcripts in which Defendants assert that certain material is privileged. 25 Defendants argue that both the documents in the log and testimony about those 26 documents are protected by the attorney-client privilege, work product doctrine, and the 27 deliberative process privilege. Doc. 209. 28 Plaintiffs seek to compel the production of For ease of analysis, the contested documents are divided into two categories: Dockets.Justia.com 1 (1) documents for which Defendants assert only the deliberative process privilege, and 2 (2) documents for which Defendants assert the attorney-client privilege. Plaintiffs do not 3 challenge the assertion of the work product doctrine. 4 I. Deliberative process privilege. 5 Defendants’ privilege log (Doc. 210-2) identifies 174 documents as protected only 6 by the deliberative process privilege. For the reasons stated below, Plaintiffs’ motion to 7 compel production of these documents will be granted. 8 A. Legal Standard. 9 Federal common law recognizes a deliberative process privilege. Dep’t of Interior 10 v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). The privilege rests on 11 the fact that officials will not communicate candidly among themselves if each remark 12 could be subject to discovery. The privilege seeks to enhance the quality of government 13 by promoting open and frank exchanges among government decision-makers. For the 14 privilege to apply, a document must meet two threshold requirements. 15 document must be predecisional – it must have been generated before the adoption of an 16 agency’s policy or decision . . . . Second, the document must be deliberative in nature, 17 containing opinions, recommendations, or advice about agency policies. Purely factual 18 material that does not reflect deliberative processes is not protected.” F.T.C. v. Warner 19 Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). “First, the 20 Even if a party satisfies these requirements, the deliberative process privilege is 21 qualified. “A litigant may obtain deliberative materials if his or her need for the materials 22 and the need for accurate fact-finding override the governments’ interest in non- 23 disclosure.” Id. Among the factors that the Court must consider are: (1) the relevance of 24 the evidence, (2) the availability of other evidence, (3) the government’s role in the 25 litigation, and (4) the extent to which disclosure would hinder frank and independent 26 discussion regarding contemplated policies and decisions. 27 determines that the privilege applies, the Court must consider whether portions of the 28 document are still subject to disclosure. See Elec. Frontier Found. v. Office of the Dir. of -2- Id. Thus, if the Court 1 Nat’l. Intelligence, 639 F.3d 876 (9th Cir. 2010) (citing Vaughn v. Rosen, 484 F.2d 820, 2 826-27 (D.C. Cir. 1973)). “The party asserting an evidentiary privilege has the burden to 3 demonstrate that the privilege applies to the information in question.” Tornay v. United 4 States, 840 F.2d 1424, 1426 (9th Cir. 1988) (citing United States v. Hirsch, 803 F.2d 5 1493, 1496 (9th Cir. 1986)). 6 B. 7 The driver’s license policy at issue in this case was originally adopted in 2012. 8 The Court issued an order denying a preliminary injunction of the 2012 policy in May of 9 2013. The policy was subsequently changed, and that change was implemented on 10 Analysis. September 17, 2013. 11 To meet their threshold burden in asserting the privilege, Defendants must show 12 that the contested communications are pre-decisional. Warner, 742 F.2d at 1161; Tornay, 13 840 F.2d at 1426. Defendants do not attempt to make this showing. They do not attach a 14 copy of their privilege log to their brief, and do not discuss the timing of claimed 15 deliberative documents or the relationship of those documents to the 2012 policy or the 16 2013 policy change. Plaintiffs provide a copy of Defendants’ privilege log with their 17 brief, and it does include dates of documents, but the log says nothing about whether 18 documents claimed to be deliberative relate to the 2012 policy or the 2013 policy change. 19 Although the Court could make assumptions on the basis of the document dates and the 20 dates of the 2012 policy and the 2013 policy change, the Court should not have to 21 proceed on the basis of assumptions. Moreover, the record suggests that the 2013 policy 22 change was considered by Defendants for many months before it was adopted, and the 23 Court cannot safely attempt to guess which allegedly deliberative documents relate solely 24 to that policy change.1 25 1 26 27 28 All of the documents in Defendants’ privilege log that assert only the deliberative process privilege pre-date the 2013 policy change. Doc. 210-2. But Defendants have not argued that all of the documents on the privilege log are predecisional to the 2013 policy change, and some of the documents from the summer and fall of 2012 appear to be pre-decisional as to the Governor’s executive order, such as a series of emails described as “re: DHS Announcement” from August, 2012. Doc. 210-2 at 39. -3- 1 Defendants must also make the threshold showing that the documents are 2 deliberative in nature. Warner, 742 F.2d at 1161; Tornay, 840 F.2d at 1426. Defendants 3 do not make this showing. In order to be deliberative, the documents must contain 4 opinions, recommendations, or advice about agency policies. Warner, 742 F.2d at 1161. 5 In analyzing this threshold requirement in Warner, the Ninth Circuit examined the 6 contents of the documents to determine whether such opinions or recommendations 7 existed. 8 documents other than the privilege log’s very short description of a few words and the 9 names of the senders and recipients. The description in many cases is uninformative, 10 such as the series of emails described as “re: DHS Announcement.” Doc. 210-2 at 39. A 11 few documents have notes in the “comments” column, but none of those notes discuss the 12 contents of the documents. Defendants in this case provide no information about the content of the 13 In sum, Defendants have not carried their burden of showing that the deliberative 14 process privilege applies to the documents listed in the privilege log. Defendants have 15 not addressed whether the documents are pre-decisional, and have made no showing that 16 the documents are deliberative under Warner. But this is not the only reason for granting 17 Plaintiff’s motion. Even if Defendants had made this threshold showing, the Court would 18 conclude, under the four factors articulated in Warner, that the qualified privilege should 19 not be applied in this case. 742 F.2d at 1161. 20 First, the communications at issue in this case are highly relevant. Under the 21 Ninth Circuit’s active level of rational basis review for Equal Protection claims, which 22 the Court found applicable in its previous decision, the Court must consider the actual 23 intent behind Arizona’s driver’s license policy when it considers the merits of this case. 24 Doc. 114 at 24-27, discussing Dep’t. of Agriculture v. Moreno, 413 U.S. 528 (1973); City 25 of Cleburn v. Cleburn Living Center, Inc., 473 U.S. 432 (1985); Romer v. Evans, 517 26 U.S. 620 (1996); Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011). Under such an analysis, 27 documents concerning the government’s intent and purpose in crafting this policy are 28 -4- 1 relevant. This factor weighs in favor of disclosure.2 2 Second, there may be other evidence available that would negate the need for 3 disclosure of these documents. Plaintiffs argue that the documents Defendants seek to 4 withhold are “the best evidence of improper motive.” Doc. 210 at 10. The inquiry, 5 however, is not whether this is the “best” evidence that can be found, and Defendants 6 assert that other evidence as to the motive for the policy is available to Plaintiffs in the 7 form of “the Executive Order, the Policy, publicly made statements, declarations, written 8 discovery responses, and express testimony of several deponents.” Doc. 209 at 7. This 9 factor weighs against disclosure. 10 Third, the government has a central role in the events at issue in this case, and the 11 basis for its action is a central issue in the litigation. In Warner, the Court examined 12 whether there was evidence of bad faith or misconduct on the part of the government in 13 concluding that the reports at issue were protected under the privilege. 742 F.2d at 1162. 14 While no allegations of bad faith have been made here, this is not a situation in which the 15 content of government deliberations regarding the policy is secondary to the issues at 16 play, as was the case in Warner. The government is a party to this case and its intent in 17 crafting the policy is a primary issue. Moreover, the bad faith inquiry in Warner arose 18 from an alleged inconsistency in how the government disclosed or withheld information, 19 and no similar inconsistency has been alleged here. This factor weighs in favor of 20 disclosure. 21 Fourth, the Court cannot conclude that disclosure would be likely to hinder frank 22 and independent discussion. Arizona has a policy in favor of full and open disclosure, as 23 evidenced by Arizona’s open meetings law. Rigel Corp. v. State, 225 Ariz. 65, 72-73, 24 234 P.3d 633, 640-41 (Ariz. Ct. App. 2010) (“Arizona recognizes a legal presumption in 25 favor of disclosing public records.”); see also Cox Ariz. Publ’ns, Inc. v. Collins, 175 Ariz. 26 11, 14, 852 P.2d 1194, 1198 (1993). Arizona courts have not recognized a deliberative 27 2 28 The Court does not intend to foreclose Defendants from arguing that a different level of scrutiny should be applied in this case, but the Court’s analysis so far has found that active rational basis review is warranted. See Doc. 114 at 24-27. -5- 1 process privilege under state law. See Arizona Indep. Redistricting Comm’n v. Fields, 2 206 Ariz. 130, 141, 75 P.3d 1088, 1099 (Ariz. Ct. App. 2003); Star Pub’g Co. v. Pima 3 County Attorney's Office, 181 Ariz. 432, 434, 891 P.2d 899, 901 (App.1994). Arizona 4 state government officials, therefore, should reasonably expect that their deliberations in 5 crafting policy are open to public scrutiny. This factor weighs in favor of disclosure. Thus, even if the contested documents were privileged – which Defendants have 6 7 not shown – the Warner factors would result in disclosure. 8 II. Attorney-client privilege. 9 For the remaining contested documents on the privilege log, Defendants have 10 asserted the attorney-client privilege. This privilege is sometimes combined in the log 11 with the deliberative process privilege or the work product doctrine, but the Court has 12 already found that the deliberative process privilege does not permit withholding of the 13 documents, and, as noted, Plaintiffs have not challenged assertions of the work product 14 doctrine. Plaintiffs argue that Defendants have impliedly waived the attorney-client 15 privilege by putting the 2013 Policy at issue in this litigation, impermissibly using the 16 privilege as both a sword and a shield. Doc. 210, 12-16. 17 A. Legal Standard. 18 The attorney-client privilege is absolute. It is not qualified like the deliberative 19 process privilege or the work product doctrine. Thus, if a communication is privileged, it 20 normally cannot be obtained in discovery no matter how relevant it might be to the 21 claims or defenses at issue in the action. 22 The Ninth Circuit has held, however, that the privilege may be waived through a 23 party’s litigation actions. Chevron Corp. v. Pennzoil Co., 974 F.2d 1156 (1992) (citing 24 United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991)). The test for such waiver 25 is three-pronged. First, a party must assert the privilege as an affirmative act in the 26 litigation. Second, through the affirmative act, the party must put privileged information 27 at issue. Third, the Court must find that allowing the privilege to stand would deny the 28 opposing party access to information vital to its case. United States v. Amlani, 169 F.3d -6- 1 1189, 1195 (1999). 2 B. Analysis. 3 Plaintiffs argue that Defendants have placed their attorney-client communications 4 about the 2013 policy change at issue by asserting that the 2013 policy change cures the 5 constitutional violations of the 2012 policy. Doc. 210 at 14. Plaintiffs cite Defendants’ 6 Motion to Supplement the Record on Appeal before the Ninth Circuit, where Defendants 7 argue that the 2013 policy change passes constitutional muster and moots Plaintiffs’ 8 Equal Protection claim because the new policy denies drivers’ licenses to all deferred 9 action recipients, not just DACA recipients. See Reply in Support of Mot. To Supp. the 10 Record on Appeal, No. 13-16248 (9th Cir.). Defendants respond that they do not contend 11 that their decision to change the policy was at the direction of legal counsel, nor that the 12 decision is constitutional because they sought or received legal advice. Doc. 209 at 11. 13 It is well-established that a holder of the privilege cannot claim that legal advice 14 from his or her attorney justifies his or her action while simultaneously shielding that 15 advice from disclosure. Chevron, 974 F.2d at 1156; Amlani, 169 F.3d at 1195; In re 16 Cnty. of Erie, 546 F.3d 222, 228 (2d Cir. 2008); Sedco Int'l S.A. v. Cory, 683 F.2d 1201, 17 1206 (8th Cir.1982). But if the privilege holder makes no claim that he or she relied on 18 counsel’s advice, the question of how privileged information is placed at issue – the 19 second prong of the waiver test – is more difficult. 20 The most analogous case in this circuit appears to be Amlani, in which the 21 defendant argued on appeal that the prosecutor’s disparaging comments about his lawyer 22 caused him to fire his lawyer and settle for less effective counsel. 169 F.3d 1189. The 23 government sought discovery of the defendant’s conversations with his lawyer to 24 determine whether the alleged disparagement had in fact caused him to change counsel, 25 and the defendant asserted the attorney-client privilege in response. The Ninth Circuit 26 held that the defendant’s claim – that his lawyer was fired only because of statements 27 made by the prosecutor – sufficiently interjected his communications with the lawyer into 28 the case to constitute waiver of the privilege. Id. at 1195. -7- 1 Courts outside the Ninth Circuit have taken a variety approaches to this issue. At 2 one end of the spectrum, the Eastern District of Washington in Hearn v. Rhay, 68 F.R.D. 3 574 (1975), took a broad view of waiver. In Hearn, prison officials in a civil rights case 4 asserted the defense of qualified immunity. Id. at 574. The defendants never claimed 5 advice of counsel as a defense to their actions, but the district court noted that for 6 qualified immunity to apply, the defendants must have acted in good faith. Id. The 7 plaintiff sought disclosure of the legal advice rendered to the defendants by the state’s 8 attorney “insofar as such advice related to plaintiff’s confinement and tends to prove 9 defendants’ bad faith.” Id. at 578. The district court held that the defendants’ assertion 10 of the immunity defense was an affirmative act and, because “the legal advice they 11 received is germane to the qualified immunity defense they raised,” that the first two 12 prongs of the waiver test were met. Id. at 581. The district court justified its holding by 13 noting that “the content of defendants’ communications with their attorney is inextricably 14 merged with the elements of plaintiff’s case and defendants’ affirmative defense. These 15 communications are not incidental to the case; they inhere in the controversy itself, and to 16 deny access to them would preclude the court from a fair and just determination of the 17 issues.” Id. at 582. 18 Other courts disagree with the broad scope of waiver articulated in Hearn. See, 19 e.g., In re Cnty. of Erie, 546 F.3d 222, 229 (2d Cir. 2008). The Third Circuit, for 20 example, reviewed the holding in Hearn and similar cases and characterized them as 21 extending “waiver of the privilege to cases in which the client’s state of mind may be in 22 issue in the litigation,” rather than limiting waiver to situations where a party 23 affirmatively asserts that advice of counsel justified his or her actions. Rhone-Poulenc 24 Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d Cir. 1994). The Third Circuit noted 25 that cases such as Hearn “rest on a conclusion that the information sought is relevant and 26 should in fairness be disclosed.” Id. But “[r]elevance is not the standard for determining 27 whether or not evidence should be protected from disclosure as privileged.” Id.; see also 28 Erie, 546 F.3d at 229. The Third Circuit held that even if a privilege holder’s state of -8- 1 mind is at issue, the privilege still applies. Other courts have also held that “a party must 2 rely on privileged advice from his counsel” in order to waive the privilege, rather than 3 merely make the evidence relevant. Erie, 546 F.3d at 229 (emphasis in original). 4 The Court concludes that the reasoning in Rhone-Poulenc and Erie is truer to the 5 intent and nature of the attorney-client privilege than Hearn. Defendants do not claim 6 that the 2013 policy change is constitutional because counsel so advised them. Doc. 209 7 at 11. Defendants instead argue that “[t]hrough this litigation” they learned that all 8 deferred action recipients are without the right, under Arizona law, to drivers’ licenses, 9 and that the policy change reflecting this moots any basis for an Equal Protection claim. 10 Reply in Support of Mot. To Supp. the Record on Appeal, No. 13-16248 (9th Cir.). 11 Plaintiffs’ brief is telling on this distinction. Plaintiffs argue that “[b]y asserting 12 that the 2013 Policy cures the constitutional violations of the 2012 Policy, Defendants are 13 using the 2013 Policy as a sword and have placed the 2013 policy revision ‘at issue.’” 14 Doc. 210 at 14. Plaintiffs do not assert, however, that Defendants have used the advice of 15 legal counsel as a sword. Plaintiffs in essence ask the Court to grant them access to 16 privileged communications because those communications are highly relevant and will 17 allow Plaintiffs to test Defendants’ assertions concerning the real reasons for the 2013 18 policy change. As already noted, however, relevancy – even high relevancy – does not 19 waive the attorney-client privilege. 20 communications related to a case would be highly relevant to that case, but the privilege 21 applies even when attorney-client communications are “vital, highly probative, directly 22 relevant or even go to the heart of [the] issue.” Rhone-Poulenc, 32 F.3d at 864. Waiver 23 requires more than the mere fact that legal counsel were consulted before a defendant 24 acted. Erie, 546 F.3d at 229. Most attorney-client 25 Nor is the Court persuaded that the privilege has been waived in this case on the 26 basis of the Ninth Circuit’s decision in Amlani. The circumstances in Amlani were 27 unique, with a defendant seeking to overturn his criminal conviction by asserting that the 28 prosecutor interfered with his attorney-client relationship and persuaded him to terminate -9- 1 his counsel. More was at work than the relevancy of the defendant’s communications 2 with his attorney. The very nature of the attorney-client relationship, and why it was 3 terminated, were injected into the case by the defendant’s claim. No similar claim 4 regarding their relationship with counsel has been made by Defendants in this case. 5 Rather, Plaintiffs seek the privileged communications to test the credibility of 6 Defendants’ explanation for why they changed the 2012 policy. 7 communications might help Plaintiffs in making their argument, however, provides no 8 basis for finding waiver. The fact that the 9 A corollary point is nonetheless important. During his deposition, ADOT Director 10 John Halikowski testified that he made the decision to implement the 2013 policy change. 11 Although neither side has provided a complete copy of his deposition transcript, the 12 portion provided by Defendants shows that the attorney-client privilege was invoked. 13 Halikowski testified to the reasons for the 2013 policy change, but invoked the privilege 14 rather than describing the legal advice he received from counsel in connection with the 15 change. Doc. 209-1 at 59-64. Having thus invoked the privilege, Defendants will not be 16 permitted at later stages of this litigation to describe that advice or to explain the reasons 17 for the 2013 policy change by revealing information that was withheld on the basis of the 18 attorney-client 19 communications for their own benefit. Nor will Defendants be permitted to argue that 20 the 2013 policy change satisfies the Constitution because it was made on advice of 21 counsel. privilege. 22 1. cannot selectively disclose privileged IT IS ORDERED: 23 Defendants Defendants shall disclose the documents withheld in their privilege log 24 solely on the basis of the deliberative process privilege. These documents shall be 25 disclosed within 14 days of this order. Defendants need not disclose the remaining 26 documents in the privilege log. 27 28 2. The parties promptly shall confer concerning any additional deposition discovery that is warranted by this ruling, and shall place a conference call to the Court to - 10 - 1 2 discuss a brief modification of the discovery schedule. Dated this 15th day of January, 2014. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 -
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