Coalition for a Sustainable Delta et al v. Carlson et al, No. 1:2008cv00397 - Document 101 (E.D. Cal. 2009)
Court Description: ORDER granting in part and denying in part 87 Plaintiffs' Motion to Compel signed by Judge Oliver W. Wanger on 10/15/09. (Coffman, Lisa)
Download PDF
<![CDATA[
Coalition for a Sustainable Delta et al v. Carlson et al Doc. 101 1 2 3 4 5 6 UNITED STATES DISTRI CT CO URT 7 FOR THE EASTERN DISTRICT OF C ALIFORNIA 8 9 10 11 12 13 14 COALITIO N FOR A SUST AINABLE DELTA, e t al., v. 17 MEMORANDUM DEC ISION RE PLAINTIFFS’ MO TION T O COMPEL DOCUMENT S WITHHELD BASED ON DELIBERATIVE P ROCESS PRIVILEGE (DOC . 87.) Pl aintiffs, DONALD K OCH, in his official capacity as Director of the Californ ia Departmen t of Fish and Game, 15 16 1:08-CV- 00397 OWW GSA De fendant, CENTRAL DELTA WATER AGENCY, et al., 18 De fendant-Intervenors, 19 20 CALIFORN IA SPORTFISH ING PROTECTI ON ALLIANCE, et al., 21 De fendant-Intervenors. 22 I. INTRODUCTION 23 Plaintif fs move to c ompel production of 39 docume nts 24 25 withheld under the d eliberative process privilege . Doc. 26 87. 27 resolve the disputed issues, and the parties subm itted a Cou nsel unsucce ssfully attempted in good fai th to 28 1 Dockets.Justia.com 1 joint st atement of t heir dispute. 2 document s at issue h ave been produced for in came ra 3 4 review. See D oc. 93. Septembe r 10, 2009. Doc. 87-2. The Oral argument was heard on Doc. 95. 5 6 7 8 9 10 11 12 13 II. SUMMARY OF THE CASE This cas e involves a challenge to Cal iforni a’s Departme nt of Fish a nd Game’s (“CDFG”) enforcemen t of state sp ortfishing r egulations affecting striped bass populati ons in the S acramento-San Joa quin Delta (“stri ped bass reg ulations”). Plaintiffs allege that CDFG’ s enforcem ent of these regulations violates Section 9 of 14 the Enda ngered Speci es Act (“ESA”), because strip ed bass 15 prey upo n four speci es listed under the ESA, name ly, the 16 Sacramen to River win ter-run C hinook salmon, Central 17 Valley s pring- run Chinook salmon, Cen tral Valley 18 19 20 21 22 23 24 25 26 27 28 steelhea d, and delta smelt (“Listed Species”). W ith respect to the insta nt motion, the disputed factu al issues i nclude: 1. The exte nt of stripe d bass predation on the Listed S pecies; 2. Whether the striped bass regulations result in a larger striped bass population than there would be absent the regulations; and 3. Whether the striped bass regulations increase striped bas s predation on the Listed Species. 2 1 III. THE DISC OVERY AT ISSUE 2 The docu ments in dis pute here were withheld from 3 response s to P laintiffs’ first, second, fou rth, a nd fi fth 4 5 6 7 8 9 10 requests for product ion. Plaintiffs served their first request for producti on on October 30, 2008. Defe ndant served i ts response on January 9, 2009, and a Suppleme ntal Respons e on March 16, 2009. Neither response asserted th e deliberative process privil ege. Plaintif fs served th eir second request for produc tion 11 on Febru ary 5, 2009. 12 March 15 , 2009, but did not assert the deliberati ve 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant served its respon se on process privilege at that time. Plaintif fs served th eir fourth request for produc tion on June 3, 2009. De fendant responded July 8, 200 9, to which De fendant gene rally asserted the deliberati ve process privilege in response to RFPs 59 & 60: Defendan t objects to this request on the grounds that it is overbroad , seeks information that is not rele vant to the subject matter litigation and not reasonably c alculated to lead to the discover y of admissi ble evidence, and seeks producti on of inform ation that is privileged by the atto rney/client privi lege , attorney workproduce privilege, a nd/or the deliber ative process privilege. Doc. 87- 2 at 11-12 (emphasis added). Plaintif fs served th eir fifth request for product ion on June 25, 2009. D efendant served its response on 3 1 August 7 , 2009, and in response to RFP #76, gener ally 2 asserted the d eliberative process privilege: 3 Defendan t objects to this request to the extent [it] see ks informati on that is protected by the attorney /client priv ilege, the attorney workproduce privilege, or the del iberative proc ess privileg e, or any co mbination of these.... 4 5 6 7 8 Doc. 87- 2 at 13. Defendan t eventually produced a privilege log, wh ich 9 detailed the grounds upon which the disputed docu ments 10 were wit hheld: 11 12 13 14 15 16 • Document s 34 through 44 and 46 through 54 are emails b etween CDFG staff reflecting advisory opinions , recommenda tions, and deliberations rela ting to the i ssue of whet her CDFG should recommend amendmen ts to the St riped Bass Policy to the 17 Californ ia Fish and Game Commission (“CFGF”). 18 • 19 reflecti ng advisory opinions, recommendations, an d 20 21 22 23 24 Document 45 is an em ail between CDFG staff delibera tions relati ng to the issue of whether CD FG should r ecommend cha nges to the striped bass slot limit to CFGF. • Document s 46 and 47 also included within the 25 first ca tegory, are emails between CDFG sta ff 26 reflecti ng advisory opinions, recommendations and 27 delibera tions relati ng to a petition to uplist th e 28 4 1 Delta Sm elt to endan gered status under the Califo rnia 2 Endanger ed Species A ct. 3 • 4 Document s Nos. 62, 6 8, 73, and 75 through 89 are drafts o f bill analy ses prepared for the Governor ’s 5 Office a nd emails be tween CDFG staff reflecting 6 advisory opinions, r ecommendations, and deliberat ions 7 8 relating to what pos ition CDFG should take in 9 connecti on with Asse mbly Bill 1253. 10 IV. ANALYSIS 11 12 13 A. Summary of Plaintiffs’ Position. Plaintif fs argue: 14 (1) Defe ndant failed to make a timely and 15 specific objection b ased on the deliberative 16 process privilege, w hich waived the privilege; 17 (2) Defe ndant failed to comply with the 18 19 20 21 22 procedur al requireme nts necessary for invoking this pri vilege, ther eby waiving the privilege; (3) Defe ndant failed to demonstrate the two essentia l elements o f the privilege: 23 (i) that the dispute d documents are 24 predecis ional, and 25 (ii) tha t they are d eliberative in nature; 26 27 28 (4) Even if the docu ments are covered by the qualifie d deliberati ve process privilege, 5 1 Plaintif fs’ need for the documents and the 2 public i nterest in t heir disclosure outweigh the 3 CDFG’s i nterest in s ecrecy; and 4 (5) Even if the docu ments and/or groups of 5 document s are subjec t to this qualified 6 privileg e, the factu al material in these 7 document s should be separated and produced. 8 9 10 11 12 13 B. Timeline ss of Assert ion of the Privilege. Rule 34( b)(2) requir es a party to respond to a request for producti on within 30 days, and the re sponse must “ei ther state t hat inspection and related ac tivities 14 will be permitted as requested or state an object ion to 15 the requ est, includi ng the reasons.” 16 34(b)(2) (B). 17 claiming a privilege , a party must “(i) expressly make 18 19 20 21 Fed. R. Civ . P. Rule 2 6(b)(5)(A) provides that, whe n the clai m; and (ii) describe the nature of the do cuments, communic ations, or o ther tangible things not prod uced or disclose d – an d do so in a manner that, without r evealing 22 informat ion itself p rivileged or protected, will enable 23 the othe r party to assess the claim.” 24 Rule 34 provides tha t, when objecting to a reques t to 25 produce documents, t he responding party’s objecti on “must 26 27 28 Rule 26(b) (5)(A ). specify the part and permit inspection of the res t.” Rule 34( b)(2)(C). 6 1 2 3 4 5 6 7 Plaintif fs complain (1) that Defendan ts failure to assert t he deliberat ive process privilege in thei r initial responses to certain RFPs constitutes per se waiver, and (2) that Defendants’ subsequent produ ction of a privil ege log seve n months after service of Pla intiffs’ first RF P was untimely, amounting to waiver. 8 Plaintif fs’ pe r se waiver argument is witho ut mer it. 9 A party’ s failure to assert a particular privileg e in an 10 initial response is not a per se waiv er. 11 26(b)(5) nor Rule 34 (b) mandate waiver upon a par ty’s 12 13 14 15 16 failure to obj ect.” “ Neither Rul e First Sav. Bank, F.S.B . v. First Bank Sys tem, Inc., 902 F. Supp. 1356, 1360 (D. Ka n. 1995). The Ninth Ci rcuit rejected a per se rule that “failure to produce a privilege log in a timely m anner 17 triggers a waiver of privilege,” noting that Rule 26’s 18 requirem ent for prop er assertion of a privilege d oes not 19 correlat e with Rule 34’s 30-day deadl ine for serv ing 20 21 22 23 24 written responses to discovery requests, “nor doe s it explicit ly articulat e a waiver rule.” Burlington Northern & Santa Fe Railyard Co. v. United States , 408 F.3d 114 2, 1147 (9th Cir. 2005). Rather, a court should 25 use Rule 34’s 30-day time period as a “defa ult 26 guidelin e,” for a “c ase-by-case determinati on” wh ether 27 the asse rtion of a p rivilege is timely and suffic ient. 28 7 1 Id. at 1 149. 2 account the followin g factors: 3 1) The degr ee to which the objection or assertio n of privile ge enables the litigant seeking discovery an d the court to evaluate whether each of the withheld documents is privileg ed; 4 5 6 2) The time liness of th e objection and accompan ying informa tion about the withheld document s (where ser vice within 30 days, as a default guideline, i s sufficient); 7 8 3) and 9 10 13 The magn itude of the document production; 4) Other pa rticular cir cumstances of the litigati on that make responding to discovery unusuall y easy or un usually hard. 11 12 Burlington inst ructs courts to take into Id. Burlingt on con cerned two issues of first im pression: 14 (i) whet her “a gener al, boilerplate assertion of an 15 evidenti ary privileg e in response to a discovery request” 16 17 18 19 20 is effec tive t o properly assert the privile ge; an d (ii ) whether “the effect of untimeliness in properly a sserting the priv ilege is to waive or otherwise abandon th e privileg e.” I d. at 1147. With respect to the first 21 issue, t he Court fou nd “that a proper assertion of 22 privileg e must be mo re specific than a generalize d, 23 boiler-p late objecti on.” 24 Court fo und that the failure to produce a timely 25 26 27 28 Id. On the second issu e, the privileg e log, pursu ant to “Rule 34’s 30-day time limi t,” does not result in a per se waiver of the p rivilege. at 1149. 8 Id. 1 2 3 4 5 6 7 Plaintif fs read Burlington to hold that where a party fails to assert a pa rticular privilege in an init ial written response in any manner, boilerplate or ot herwise, it amoun ts to a per se wa iver of that privilege, whether or not t he privilege was invoked in a later-produ ced privileg e log. This reading of Burli ngton is 8 inconsis tent with th e Ninth Circuit’s refusal to apply a 9 per se w aiver to a l ate-filed privilege log, even afte r 10 finding the boilerpl ate assertions of privilege in the 11 initial, written res ponse to be insufficient. 12 13 14 15 16 If assertin g a privileg e in a boilerplate manner is improper , then the p arty withholding documents in Burlingt on fai led to prop erly assert partic ular privileg es in their initial written responses. 17 Neverthe less, the Burling ton court fo rgave this i nitial 18 failure and permitte d the privilege log to assert the 19 privileg es for the f irst time. 20 21 22 23 24 This cas e is suffici ently analogous. Even though the initial written resp onse to some of the earlier R FPs did not asse rt the delib erative process privilege, on ce Defendan t had an opp ortunity to thoroughly examin e the 25 responsi ve documents , it determined that assertio n of the 26 privileg e was approp riate and did so. 27 applying a per se waiver rule, Burlington demands that 28 9 Rather tha n 1 Defendan t’s actions be examined in light of the f our 2 factor t est. 3 4 1. 5 6 State De fendant’s As sertion of the Privilege Enables the Plaintif fs and the Court to Evaluate Whether the Document s are Privileged. Defendan t’s privileg e log describes the wit hheld 7 document s by providi ng the identities of the send er and 8 recipien t and the ge neral subject matter of the 9 communic ation. 10 11 12 13 14 15 16 In a ddition, submission of the di sputed document s to the Cou rt in camera perm its th e Court to evaluate the privile ge claim completely and thoro ughly . 2. Under th e Circumstan ces, the Objection Was Timely. The thre e remaining Burli ngton factor s -- timeliness of the a ssertion, ma gnitude of the production, an d other 17 circumst ances -- are appropriately discusse d toge ther. 18 Discover y in t his case has been complex and voluminous. 19 Defendan t has produc ed over 83,000 pages of docum ents, 20 includin g thousands of e- mail messages, all of wh ich had 21 22 23 24 to be re viewed for p rivilege. 88, at ¶ 10. First Wordham Decl ., Doc. Plainti ffs’ first RFP, propounded on Octo ber 30, 2008 , sought inf ormation dating back almost 3 0 years 25 to befor e 1980 in so me cases. 26 in a len gthy meet-and-con fer over the scope of 27 Plaintif fs’ discover y requests. 28 10 The parties then e ngaged Ultimately, the parties 1 agreed t hat all requ ests woul d be limited to years aft er 2 1980. 3 4 5 6 7 T he parties a lso agreed that written respo nses would be due on Janu ary 9, 2009, with document pr oduction on Janua ry 21, 2009. . Defendan t engaged in extensive efforts to collect , review a nd produce e-mails from numerous CDFG employee s, 8 potentia lly involvin g tens of thousands of e-mails. 9 parties agreed that the discovery demands would b e 10 limited to e-m ails from approximately eleven CDFG staff 11 who work ed primarily on striped bass issues (the “CDFG 12 13 14 15 16 striped bass work group”). The This limited the potentially discover able emails to several thousand. Over the next few mo nths, CDFG staff worked to collect e-mail s and provi de them to counsel for review . 17 After e- mails were p rovided to counse l by staff, the e- 18 mails we re rev iewed for relevance and privilege and 19 prepared for product ion. 20 21 22 23 24 25 26 27 28 During this review proc ess, counsel discovered t hat some of the e-mail communications were sub ject to the deliberative process privileg e, among other pr ivileges. O n or about April 1, 2009, Defendant produced more than 3 ,500 emails, the vast majorit y of responsi ve, non-privileged e-mails. Around m id-Mar ch, 2009, counsel for the Defendant determin ed that the Defendant needed to attempt t o 11 1 recover e-mail s and docum ents that had been deleted from 2 CDFG sta ff computers between the time the plainti ffs 3 4 5 6 7 served t he Defendant with a notice of intent to s ue on or about Oc tober 27, 20 07 and the date the litigatio n was initiate d on Februar y 22, 2008, at which time CDF G imposed a litigation hold on CDFG staff e-mails a nd 8 document s. 9 the proc ess of obtai ning a contractor to search a nd 10 retrieve all such e- mails and documents. 11 recoveri ng deleted e-mails, reviewing them for relevan ce 12 13 14 15 16 Counsel for the Defendant immediately began and priv ilege, and prepar ing them for produ ction was complete d on or abou t May 21, 2009, at which time they were pro duced to pla intiffs. produced on May 28, 2009. 18 Exhibit Q. 20 21 22 23 24 A privilege log, li sting 54 e-mails withhe ld und er claim of privilege, was th en 17 19 T he pro cess of First Wordham Decl., D oc. 88, On June 3, 2009, pla intiffs propounded RFP Set 4, which in cludes Reque st for Production No. 59 and Request for Prod uction No. 6 0. Id., Exhibit R. Bo th req uests seek pro duction of d ocuments relating to Californ ia Assembly Bill 1253. In response to RFP Set 4, No s. 59 25 and 60, the Defendan t objected in part and assert ed the 26 attorney -client, att orney work product, and delib erative 27 process privileges. 28 On or about July 23, 2009, c ounsel 12 1 for the state defend ant served on plaintiffs a re vised 2 privileg e log, listing the e-mails withheld from the 3 response to RFP Set 4. 4 5 6 7 Id., Exhibit T. In total , Defense co unsel has reviewed over 4,200 pages of e-mai ls. Of these over 4,200 pages, approxim ately 150 pa ges, or a total of 89 e-mails , hav e 8 been det ermined to be responsive but subject to a clai m 9 of privi lege. 10 been pro duced. 11 12 13 14 15 16 Appro ximately 4,060 pages of e-mai ls ha ve Id. at ¶ 10. Discover y in this ca se has been voluminous and complex, particularl y in light of the need to sea rch for and retr ieve deleted emails. Once counsel began to review r esponsive em ails, Defendant took a reason able amount o f time to de termine that some of the 17 communic ations were subject to the privilege. 18 totality of circumst ances, it appears that Defend ant’s 19 claims o f privilege were asserted as soon as reasonably 20 21 practica ble. Un der this Under Burli ngton, the p rivilege has been appropri ately assert ed. 22 23 24 25 26 C. Complian ce with Proc edural Requirements for Invok ing the Deli berative Pro cess Privilege. Plaintif fs cite this court’s 1998 decision in Stockton East Water District, et al. v. Bureau of 27 Reclamat ion, C onsolidated Cases: CV-F-93-5896 OWW and CV- 28 F-96-573 8 OWW DLB (“Stockton Order”), which held that 13 1 four req uirements mu st be met before a claim of 2 delibera tive process privilege may be sustained: 3 4 5 6 7 8 9 10 11 12 13 14 First, a formal clai m of privilege lodged by the head of the departme nt having control over the matter m ust be made after actual personal consider ation by tha t officer. An affidavit of the resp onsible agen cy official must explain reasons for preservi ng the confidenti ality of the gove rnmental com munication. A specific designat ion and desc ription of the documents, i.e., a privilege lo g must be made in sufficient detail t o allow a re asoned determination as to the legi timacy of th e claimed privilege. Discoverable factual material must be separated from pro tected delib erative material. Stockton Order at 8- 9. P laintiffs assert t hat th ese requirem ents were no t met in this case. However, the district court speci fically found in Stockton that these requirem ents did not apply where the documents are 15 presente d for in camera inspection. 16 numerous cases). Id. at 9 (citing 17 Defendan t submitted concurrently with the joint 18 statemen t the declar ation of John McCamman, Chief Deputy 19 20 21 22 23 Director of the CDFG . McCamman reviewed al l of the conteste d documents and, after describing these document s, concludes that their disclosure would “inhibit the free flow of ide as among CDFG staff” regardin g 24 proposed changes to the Striped Bass Policy, the 25 possibil ity of adopt ing a striped bass slot limit , the 26 review o f a petition to modify the species status of the 27 28 Delta sm elt under th e California Endangered Speci es Act, 14 1 and the provision of advice to the Governor’s Off ice 2 regardin g pending le gislation. 3 Doc. 88- 4, at ¶¶ 2-5. 4 5 6 7 McCamman Declarat ion, Mr. McCa mman’s offic ial position as Chief Deputy Director of CDFG mee ts the requirement that the a ttesting person i s an “indivi dual with overall responsibil ity for 8 the admi nistration o f the agency.” 9 Rozet, 1 83 F.R.D. 66 2, 665 (N .D. Cal. 1998). 10 11 12 13 14 15 16 United States v. As for t he remaining procedural requirements, the privileg e log in thi s case accurately describes t he withheld documents a nd provides sufficient detail to permit a reasoned de termination as to the legitim acy of the clai med privileg e. Finally, contrary to Plai ntiffs’ assertio ns, the with held documents contain no 17 discover able factual information that must be sep arated 18 from the deliberativ e material. 19 The priv ilege has be en properly invoked. 20 21 22 23 24 25 26 D. Applicat ion of the P rivilege to the Documents in Dispute. Accordin g to the Sup reme Court, “the ultimate pur pose of the l ong-re cognized [deliberative process] privileg e is to pr event injury to the quality of agency dec isions.” National Labor Relat ions Board v. Sears, Roebuck & Co., 27 421 U.S. 132, 151 (1975) (“NLRB”). The pri vilege is 28 intended “to insure that a decision-maker w ill re ceive 15 1 the unim peded advice of his associates. 2 that if advice is re vealed, associates may be rel uctant 3 4 5 6 7 8 9 10 11 12 13 14 15 16 to be ca ndid and fra nk.” The theo ry is Fed eral Open Market Committe e v. Merri ll, 44 3 U.S. 340, 359-360 (19 79). In a recent decision addressing the privilege, the Supreme Co urt declared : The deli berative pro cess privilege rests on the obvious realization that officials will not communic ate candidly among themselves if each remark i s a potentia l item of discovery and front pa ge news, and its object is to enhance “the qua lity of agen cy decisions” (citation omitted) by protecti ng open and frank discussion among th ose who make them within the Government. Departme nt of the Interio r, et al. v. Klama th Wat er Us ers Protecti ve Associati on, 5 32 U .S. 1, 8-9 (20 01). In addressi ng the appli cation of the privilege to in ternal document s, the Supre me Court stated: “[i]t would be 17 impossib le to have a ny frank discussion of legal or 18 policy m atters in writing if all such writings were to be 19 subjecte d to public scrutiny.” 20 87 (1973 )(superceded by statute on other grounds, 5 21 22 23 24 EPA v . Mink , 410 U.S. 73, U.S.C. § 552). The Nint h Circuit ha s repeatedly affirmed this pu blic policy t o encourage frank and candid intern al age ncy 25 discussi ons. 26 F.3d 124 0, 1246 (9th Cir. 2000); Nat’l Wild life Fed’n v. 27 United S tates Forest Serv., 8 61 F.2d 1114, 1117 (9th C ir. 28 See, e.g., United States v. Fernand ez, 231 16 1 1988) (“ NWF”). 2 the deli berative pro cess privilege in the Ninth C ircuit: 3 Two conditions apply to the asser tion of 6 [U]nder the delibera tive process’ privilege, a document must be bot h (1) pre decisional or antecede nt to the ad option of agency policy and (2) deli berative meaning it must actually b e related to the proce ss by which policies ar e formulat ed. 7 NWF, 861 F.2d at 1117 (internal citations and quotations 8 omitted) (emphasis ad ded). 4 5 9 10 11 12 13 14 15 16 17 18 19 Id. As the NWF court explained: These tw in requireme nts recognize that the underlyi ng purpose o f this privilege is to protect[ ] the consul tative functions of governme nt by mainta ining the confidentiality of advisory opinions, r ecommendations, and delibera tions compri sing part of a process by which go vernmental d ecisions and policies are formulat ed. “A docum ent may be c onsidered predecisional if it was prepared in order to assist an agency decisionmak er in arriving at his deci sion.” Carter v. U.S. Dept. of Commerce , 307 F.3d 1 084, 1089 (9th Ci r. 2002). “Material which pr edates a dec ision chronologically, but di d not 20 contribu te to that d ecision, is not predecisional in any 21 meaningf ul sense.” 22 “predeci sional” requ irement does not mandate that the 23 agency a sserting the privilege has taken steps to 24 25 26 27 28 Id. finalize its decisio n. On t he one hand, the As the Supreme Court has observed : Our emph asis on the need to protect predecision al documents does not mean that the existenc e of the pri vilege turns on the ability 17 1 of an ag ency to iden tify a specific decision in connecti on with whic h a memorandum is prepared. Agencies are, and pr operly sh ould be, engag ed in a contin uing process of examining their policies ; this proce ss will generate memoranda containi ng recommend ations which do not ripen into age ncy decision s; and the lower courts should b e wary of in terfering with this process. 2 3 4 5 6 7 NLRB, 42 1 U.S. at 151, n.18. One California district court co ncluded “tha t the Supreme Court meant to protect 8 document s that were part of the decision-making proces s, 9 regardle ss of a ‘fin al decision’.” 10 Soc’y v. EPA, 251 F.R.D. 408, 411-412 (N.D. Cal. 2008) . 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Cal. Na tive P lant On the o ther hand, t he party opposing discovery m ust identify a specific decision or policy to which t he withheld documents r elate. As the Ni nth Circuit explaine d in M aricopa Audubon Society v. U.S. Forest Service: The [age ncy] argues that because agencies a re involved in a contin ual process of selfexaminat ion, it need not identify a specific decision in which th e ... report and the ... letter w ill culminat e in an order for those material s to be “pre decisional.” For this position , it relies entir ely on a footnote in the Supr eme Court’s decision in NLRB v. Sea rs, Roebuck & Co., 421 U .S. 1 32 . .. This cauti onary dictum, however, doe s not justify the broad reading ... urged by the government ... Th us, we are r equired to r eject the government’s primary argument tha t a continuing process of agency s elf-examination is enough to render a document “predecisio nal” and hold, instead, that the agen cy must iden tify a specific decision to which th e document i s predecisional. 26 108 F.3d 1089, 1094 (9th Cir. 1997)(emphasis adde d). 27 also Ass embly of the State of Cal. v. U.S. Dept. of 28 18 See 1 Commerce , 968 F.2d 9 16, 921 (9th Cir. 1992) (“Material 2 which pr edates a dec ision chronologically, but di d not 3 4 contribu te to that d ecision, is not predecisional in any meaningf ul sense.”). 5 Document s are delibe rative only if they are “actu ally 6 7 related to the proce ss by which policies are form ulated.” 8 NWF, 861 F.2d at 1117. 9 material s are genera lly not protected by the priv ilege. 10 Id. 11 document exposes “an agency’s decisionmaking proc ess in 12 13 14 15 16 17 For example, purely factual The impor tant inquiry is whether disclosure of the such a w ay as to dis courage candid discussion wit hin the agency a nd thereby u ndermine the agency’s ability to perform its function s.” Assembly, 968 F.2d at 920 (interna l citation a nd quotation omitted). 18 1. Document s that Conce rn Whether to Recommend to CFGF an Amendment to the Striped Bass Policy. 19 Defendan ts assert th at Documents 34 through 44, 4 6 20 through 54, and 62 c oncern whether to recommend t o CFGF 21 an amend ment t o the striped bass policy. 22 23 24 25 26 27 28 T he doc ument s submitte d in c amera reveal that the i ssue o f whether C DFG should m ake such rec ommendations to CFGF was raised several times and co nsidered over the course of m ore than a year, but never ac ted upon. Plaintif fs mai ntain that Defendant’s assertion of the privileg e in connect ion with these documents is 19 1 insuffic ient under Maricopa Audubon. 2 to speci fy what amen dments were proposed to which part(s) 3 4 5 6 7 8 9 of the s triped bass policy. Defendant refuse d Because no informati on wa s actually given about the substance or timing of t he putative decisions, Plaintiffs argue the discussi on of “an amen dment to the Striped Bass Policy” is simp ly “part of a con tinuing proc ess of agency self-examination.” The in c amera review reveals that most of the 10 communic ations in th is category, namely Documents 34 11 through 44, 48 throu gh 54, and 62 concerned speci fic 12 13 14 15 16 proposal s to modify striped bass policy. That th ese proposal s were never acted upon does not render t he assertio n of the del iberative process privilege ineffect ive. This i s not the kind of “continuing process 17 of agenc y self-examination” with which Maricopa Audubo n 18 was conc erned. 19 withheld documents b e related to a specific polic y 20 21 22 23 24 proposal . Maricopa Audubon simp ly dem ands that As to Documents 34 through 44, 48 through 54, and 62, the discussi on focused on specific propos als for striped bass. The d ocuments were predecisional, satisfyi ng the first requirement. These document s are 25 also del iberat ive because they concern the formulation of 26 policy. 27 28 Although it is a clo se call, a careful examinatio n of 20 1 document s 46 and 47 reveals no connection to any specific 2 proposal to modify t he striped bass policy. 3 4 5 6 7 Modi fying the stri ped bass pol icy is mentioned as a possibl e remedy for conc erns r aised in these two emails, but no specific policy c hanges are d iscussed. Documents 46 and 4 7 qualify as communica tions generated as part of a 8 “continu ing process of agency self-examination,” to wh ich 9 the deli berative pro cess privilege does not apply under 10 Maricopa Audubon. 11 12 13 14 The deli berative pro cess privilege is validly app lied to Docum ents 34 thro ugh 44, 48 through 54, and 62 , but does not apply to do cuments 46 and 47. 15 2. 16 Document 45 concerns a particular proposal, which 17 18 19 20 21 Document Concerning the Striped Bass Slot Limit. originat ed outside C DFG, to impose a slot limit 1 to protect striped bass . The withheld communication addresse s whether CD FG should support that propos al. This doc ument is pre decisional, as it concerned a 22 specific proposal (w hether to support the slot limit) 23 that had not yet bee n adopted by CDFG, and delibe rative, 24 because it concerned the formulation of policy. 25 privileg e is properl y asserted with respect to Do cument The 26 27 28 1 A slot limit allows anglers to take fish in a ce rtain size ran ge, but requ ires the release of anything smaller or large r. 21 1 45. 2 3 3. 4 5 Document s Relating t o Petition to Uplist the Delta Sm elt to Endangered Status under the Californ ia Endangere d Species Act (“CESA”). Document s 46 and 47, in addition to discussing 6 proposal s to recomme nd changes to the striped bas s 7 policy, include a sp ecific proposal to uplist the Delta 8 smelt to endangered status under CESA. 9 document s do tangent ially discuss the CESA uplist ing, 10 11 12 13 14 Alt hough these they are not deliber ative on this issue. In othe r words, they do not discuss and/or deliberate over policy actions or decis ions CDFG mu st take in relation to the CE SA petition . The privilege does not apply to documents 4 6 15 and 47 b y virtue of their discussion of the CESA 16 petition . 17 18 19 20 4. Document s Reflecting Analysis of AB 1253. Document s 68, 73, an d 75 through 89 documents are all drafts o f bill analy ses prepared by CDFG for the 21 Governor ’s Off ice and emails between CDFG s taff r elati ng 22 to what position CDF G should take in connection w ith 23 various drafts of As sembly Bill 1253. 24 25 26 27 28 at ¶5. See McCamm an De cl. These are al l predecisional, as they conc ern drafts o f a specific piece of legislation, and delibera tive, becaus e they concern the formulatio n of CDFG’s p olicy toward that bill. 22 The privilege pr operly 1 applies to Documents 68, 73, and 75 through 89. 2 5. 3 Conclusi on Re: Appli cation of the Privilege. The deli berative pro cess privilege applies to all of 4 5 the docu ments withhe ld on that ground with the ex ception 6 of Docum ents 46 and 47. 7 GRANTED as to Docume nts 46 and 47. Plaintiffs’ motion to co mpel is 8 9 10 11 E. Qualifie d Privilege Analysis: Is Defendant’s Interest in Non-Disclosure Overcome By The Plaintif fs’ An d The Public’s Interest In Disclosure? The deli berative pro cess privilege is a qualified 12 privileg e. 13 is overc ome, courts usually consider four non-exh austi ve 14 factors: (1) the rel evance of the evidence; (2) t he 15 availabi lity of othe r evidence that contains the same 16 17 18 19 20 To deter mine whether the qualified pr ivilege informat ion; (3) the government’s role in the lit igation, i.e., wh ether there is any evidence of bad faith and/or miscondu ct; and (4) the extent to which disclosur e would hinder f rank and ind ependent discussi on reg arding 21 contempl ated policie s and decisions. 22 Commc’ns , Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). 23 court ma y also take into account (5) the interest of the 24 25 26 27 28 FTC v . Warner The litigant , and societ y, in accurate judicial fact- finding. North Pa cifica , LLC v. City of Pacifica, 274 F. Supp 2 d 1118, 11 22 (N.D. Cal . 2003), and (6) the seriousn ess of the liti gation and t he issues involved, Uni ted St ates v. 23 1 2 3 4 5 6 7 Irvin, 1 27 F.R.D. 16 9, 174 (C.D. Cal. 1989). In the S tockton case , the dis trict court refused to permit d isclosure af ter finding that the document s withheld were only m arginally relevant; the “info rmation sought [ was] availab le ... from other sources”; t he “documen ts [did] not contain evidence of bad fait h or 8 governme nt misconduc t”; permitting “disclos ure would 9 chill th e free flow of ideas between members of t he 10 agency a nd effective cooperation in the developme nt of 11 water po licy by stat e and federal agencies in the state 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of Calif ornia;” and “the documents do not disclos e ‘the smoking gun,’ Plaintiffs’ seek.” Sto ckton Order at 7- 41. Here, Pl aintiffs ass ert that the documents may re veal relevant documents a nd/or the “smoking gun” not f ound in the Stoc kton c ase. For example, Plaintiffs assert tha t: [T]he De fendant’s di scussion of an amendment to the stri ped bass abu ndance policy will probably discuss the key issu es of striped bass predation on nativ e fish and E SA implications. Among the document s already pr oduced by CDFG was an email and Repo rt from CDFG employee Marty Gingras, CDFG’s s triped bass expert. (Rubin Decl. ¶ 16, Exh. 7.) In the ema il Marty Gingras reported that the CDFG “discu ssed the Commission’s striped bass policy as it relates to fishing regulati ons, spendin g Striped Bass Stamp Funds, and ESA, ” and advoca ted revision of this policy. (Id. (emphasis added).) Moreover, the Report attached to his emai l complains that the striped bass abu ndance polic y is “harmful ... primarily because significant uncertainty remains about the effe ct of stripe d bass predation on native fishes.” (Id.) Doc. 97- 2 at 46. Pl aintiffs maintain that this disclosed 24 1 email is evidence th at “Defendant is ... trying t o hide 2 key evid ence and adm issions based on the delibera tive 3 4 5 6 7 process privilege.” Id. Similarly, Plaintiffs a ssert “it is h ighly likely that during the discus sion o f the striped bass slot li mit, the CDFG discussed wheth er this proposed striped bas s regulation would increase o r 8 maintain the striped bass population -- one of the 9 primary issues in di spute.” 10 11 12 13 14 15 16 Id. at 47. A carefu l review of all of th e remaining disputed document s in c amera proves Plaintiffs ’ cont entions are meritles s. Although the communications do touch upon the issue of striped bas s predation upon native speci es, the withheld documents a re primarily concerned with v arious ways to word policy recommendations s o as to accurately 17 reflect the state of the science. 18 not reve al bad faith or any effort to withhold 19 informat ion from the public. 20 21 22 23 24 The communicat ions do Rather, they reveal a concern over giving policy advice that does not o verstate the scie nce. The wi thheld communications do not discuss scientif ic informati on in any detail, nor do they shed meaningf ul light on the ultimate issues in this c ase, 25 e.g., wh ether the ex isting striped bass sportfish ing 26 regulati ons cause un lawful take of ESA list ed spe cies. 27 28 Moreover , in general , the withheld emails would n ot 25 1 add to i nformation a lready disclosed. 2 Plaintif fs admit the y are already in possession o f an 3 4 5 6 7 For exampl e, email in which Marty Gingras advocated revisions to the striped bass p olicy in light of ESA concerns. Disclosure of the v ast majority of withheld documents would “hinder frank an d independen t discussion regarding contem plated 8 policies and decisio ns,” without enhancing the re cord in 9 any mean ingful way. 10 11 Plaintif fs have not overcome the priv ilege as to the remainin g documents. 12 13 14 15 F. Plaintif fs’ Request for Reasonable Expenses. Federal Rule of Civi l Procedure 37(a)(5)(A) requi res 16 the part y or deponen t whose conduct necessitated the 17 motion t o compel “to pay the movant’s reasonable expen ses 18 19 20 21 incurred in making t he motion, including attorney ’s fees,” u nless “the o pposing party’s nondisclosure , response , or objecti on was substantially justifie d.” 22 Here, St ate Defendan ts’ nondisclosure was substan tially 23 justifie d. 24 39 chall enged docume nts, this reflects the distri ct 25 court’s balancing of the parties’ and public’s in terest, 26 27 28 Although Defendants must disclo se two of t he and does not undermi ne Defendant’s right to asser t the privileg e as to all 39 documents in the first ins tance. 26 1 Plaintif f’s re quest for f ees and reasonable expenses i s 2 DENIED. 3 4 5 6 7 8 9 V. CONCLUSI ON For the reasons set forth above: (1) Plai ntiffs’ motion to compel is GRANTED as to Docum ents 46 and 47 and DENIED as to all other do cuments; and 10 (2) Plai ntiffs’ requ est for reasonable expe nses 11 is DENIE D. 12 Plaintif fs shall sub mit a form of order consisten t with 13 this mem orandum deci sion within ten (10) days of 14 electron ic service. 15 16 17 18 19 20 SO ORDER ED Dated: October 15, 2009 /s/ Oliver W . Wang er Oliver W. Wang er United States Distri ct Judge 21 22 23 24 25 26 27 28 27
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
