Athletics Investment Group, LLC v. Schnitzer Steel Industries, Inc.

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 ATHLETICS INVESTMENT GROUP, Case No. 21-cv-05246-MMC (DMR)

LLC,

8

Plaintiff, ORDER FOLLOWING IN CAMERA

9 REVIEW

v.

10 Re: Dkt. Nos. 103, 142

SCHNITZER STEEL INDUSTRIES, INC.,

11

Defendant.

12

13 I. BACKGROUND

14 This is an action brought pursuant to the Clean Air Act’s (“CAA”) citizen suit enforcement

15 provision, 42 U.S.C. § 7604, to challenge Defendant Schnitzer Steel Industries, Inc.’s

16 (“Schnitzer”) operations at its metal shredding facility in West Oakland.

17 Plaintiff Athletics Investment Group, LLC (“AIG”) served a subpoena on third-party Bay

18 Area Air Quality Management District (“BAAQMD” or “the District”), a California state agency,

19 for production of 17 categories of documents. [Docket No. 103-1.] BAAQMD produced

20 approximately 5,000 documents in response to the subpoena but withheld nearly 9000 responsive

21 documents. AIG and BAAQMD subsequently filed a joint discovery letter regarding BAAQMD’s

22 response. Specifically, AIG challenges the sufficiency of BAAQMD’s privilege log; BAAQMD’s

23 claim of deliberative process privilege over approximately 9,000 documents; BAAQMD’s

24 withholding of “confidential documents shared under [two] interagency agreements”; and

25 BAAQMD’s redactions for relevance in 127 responsive documents. [Docket No. 103 (Jt. Letter).]

26 AIG moves for an order compelling BAAQMD to produce the documents that AIG contends were

27 “improperly withheld and redacted.” Jt. Letter 1.

1 review. [Docket Nos. 104, 105.] The court subsequently ordered AIG to select “20 examples of

2 withheld documents that it contends illustrate BAAQMD’s improper assertion of the deliberative

3 process privilege and five examples of documents containing BAAQMD’s redactions for

4 relevance,” and ordered BAAQMD to lodge the 25 documents for in camera review along with the

5 declaration of BAAQMD official Carol Allen supporting the District’s invocation of the

6 deliberative process privilege. [Docket No. 142.] The court noted that after reviewing the

7 exemplar documents it would “make benchmark rulings on the representative samples of

8 documents chosen by AIG and issue additional instructions or order(s) as it deems appropriate.”

9 Id. The court also ordered BAAQMD to lodge the two interagency agreements under which it

10 withheld “confidential documents.” Id. BAAQMD timely lodged all exemplar documents and

11 other materials for review. [See Docket Nos. 143, 153.]

12 The court reviewed the exemplar documents over which BAAQMD claims deliberative

13 process privilege that were submitted for in camera review along with the accompanying privilege

14 log entries and agency declaration. BAAQMD submitted parent emails and attachments to the

15 exemplars; in total, BAAQMD submitted 48 documents for in camera review. Some but not all of

16 BAAQMD’s claims of deliberative process privilege are supported by the record and by the law.

17 To move the parties’ dispute toward final resolution, the court sets forth its rulings on the

18 exemplar documents. BAAQMD and AIG shall now apply these benchmark rulings to the

19 remaining disputed documents withheld on the basis of deliberative process privilege as instructed

20 below.

21 The court has also reviewed the five exemplars of redacted documents and the two

22 interagency agreements under which BAAQMD withheld certain documents and now rules on

23 those disputes.

24 II. LEGAL STANDARDS

25 Federal Rule of Civil Procedure 45 governs discovery of nonparties by subpoena. Fed. R.

26 Civ. P. 45. The Advisory Committee Notes to Rule 45 state that “the scope of discovery through a

27 subpoena is the same as that applicable to Rule 34 and the other discovery rules,” which in turn is

1 34(a) (“A party may serve on any other party a request within the scope of Rule 26(b).”). Federal

2 Rule of Civil Procedure 26 provides:

3 Parties may obtain discovery regarding any nonprivileged matter that

is relevant to any party’s claim or defense and proportional to the

4 needs of the case, considering the importance of the issues at stake in

the action, the amount in controversy, the parties’ relative access to

5 relevant information, the parties’ resources, the importance of the

discovery in resolving the issues, and whether the burden or expense

6 of the proposed discovery outweighs its likely benefit.

7 Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be admissible in

8 evidence to be discoverable.” Id. “Relevancy, for the purposes of discovery, is defined broadly,

9 although it is not without ultimate and necessary boundaries.” Gonzales v. Google, Inc., 234

10 F.R.D. 674, 679-80 (N.D. Cal. 2006).

11 Rule 45 provides that “on timely motion, the court for the district where compliance is

12 required must quash or modify a subpoena that . . . requires disclosure of privileged or other

13 protected matter, if no exception or waiver applies; or subjects a person to undue burden.” Fed. R.

14 Civ. P. 45(d)(3)(A)(iii), (iv). “Of course, ‘if the sought-after documents are not relevant, nor

15 calculated to lead to the discovery of admissible evidence, then any burden whatsoever imposed

16 would be by definition undue.’” Del Campo v. Kennedy, 236 F.R.D. 454, 458 (N.D. Cal. 2006)

17 (quoting Compaq Computer Corp. v. Packard Bell Elec., Inc., 163 F.R.D. 329, 335-36 (N.D. Cal.

18 1995)). “[A] court determining the propriety of a subpoena balances the relevance of the

19 discovery sought, the requesting party’s need, and the potential hardship to the party subject to the

20 subpoena.” Gonzales, 234 F.R.D. at 680.

21 III. DISCUSSION OF THE DOCUMENTS SUBMITTED FOR IN CAMERA REVIEW

FOR WHICH BAAQMD CLAIMS DELIBERATIVE PROCESS PRIVILEGE

22

A. Deliberative Process Privilege

23

The deliberative process privilege protects “the decision making processes of government

24

agencies” in order to “prevent injury to the quality of agency decisions.” N.L.R.B. v. Sears,

25

Roebuck & Co., 421 U.S. 132, 150-51 (1975) (quotation marks and citations omitted). “The

26

underlying premise of the privilege is that agency decision-making might be impaired if

27

discussions within the agency were subject to public review, thereby discouraging ‘frank

1 discussion of legal or policy matters.’” In re McKesson Governmental Entities Average

2 Wholesale Price Litig., 264 F.R.D. 595, 600 (N.D. Cal. 2009) (quoting Sears, 421 U.S. at 150).

3 The deliberative process privilege is not absolute, and even if the privilege applies, “a litigant may

4 obtain discovery of protected material if the need for the documents outweighs the governmental

5 interest in keeping the decision making process confidential.” McKesson, 264 F.R.D. at 601. The

6 Ninth Circuit has “defined the ambit of the deliberative process privilege . . . narrowly” and the

7 agency bears the burden of showing the privilege applies. Sierra Club, Inc. v. United States Fish

8 & Wildlife Serv., 925 F.3d 1000, 1011 (9th Cir. 2019).

9 In order for the deliberative process privilege to apply, “a document must be both (1)

10 predecisional or antecedent to the adoption of agency policy and (2) deliberative, meaning it must

11 actually be related to the process by which policies are formulated.” Nat’l Wildlife Fed’n v. U.S.

12 Forest Serv., 861 F.2d 1114, 1117 (9th Cir. 1988) (quotation marks and citation omitted). A

13 document is pre-decisional if it is “prepared in order to assist an agency decisionmaker in arriving

14 at his decision, and may include recommendations, draft documents, proposals, suggestions, and

15 other subjective documents which reflect the personal opinions of the writer rather than the policy

16 of the agency.” Assembly of State of Cal. V. U.S. Dep’t of Commerce, 968 F.2d 916, 920 (9th Cir.

17 1992) (internal citation and quotation marks omitted). A document is deliberative if disclosure of

18 the materials “would expose an agency’s decision-making process in such a way as to discourage

19 candid discussion within the agency and thereby undermine the agency’s ability to perform its

20 functions.’” Id. at 921. “[A]n agency head does not need to personally review every document in

21 order to invoke the deliberative process privilege” if the agency “provide[s] sufficient detail ‘to

22 insure that the privilege remains a narrow privilege which is not indiscriminately invoked.’”

23 Scalia v. Int’l Longshore & Warehouse Union, 336 F.R.D. 603, 611 & n. 4 (N.D. Cal. 2020)

24 (quoting United States v. Rozet, 183 F.R.D. 662, 665 (N.D. Cal. 1998))) (holding that agency head

25 properly invoked the privilege where he reviewed a representative sample of the documents

26 withheld).

27 For a document to be “deliberative” it should disclose the personal opinions or “mental

1 (N.D. Cal. 2008). Deliberative documents “reflect[ ] the give-and-take of the consultative

2 process” and include documents that would “inaccurately reflect or prematurely disclose the views

3 of the agency, suggesting as agency position that which is as yet only a personal position.”

4 Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). Examples of

5 deliberative documents include “staff memoranda to senior agency officials with

6 recommendations, legal interpretations and drafts of litigation documents,” and “documents [that]

7 reflect an agency’s preliminary positions about how to exercise discretion on a policy.” United

8 States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993). Such documents may “weigh[ ] the pros and

9 cons of agency adoption of one viewpoint or another.” Coastal States Gas Corp., 617 F.2d at 866.

10 They could contain advice, recommendations, or suggestions from an inferior to a superior.

11 Maricopa II, 108 F.3d at 1094. However, a final decision-maker need not review every requested

12 document so long as the information is part of the decision-making process “as a whole.” Moye,

13 O’Brien, O’Rourke, Hogan, & Pickert v. Nat’l R.R. Passenger Corp., 376 F.3d 1270, 1279 (11th

14 Cir. 2004) (finding that internal memoranda and audit work papers were protected by the

15 deliberative process because they were part of the “entire body of collaborative work” performed

16 by the agency); see also Sears, 421 U.S. at 150 (explaining that the privilege protects “documents

17 reflecting advisory opinions, recommendations and deliberations comprising part of a process by

18 which governmental decisions and policies are formulated” (internal quotation marks and citation

19 omitted)); Sierra Club, 925 F.3d at 1016 (documents “reflecting the opinions of individuals or

20 groups of employees rather than the position of an entire agency” are deliberative).

21 Additionally, while opinions are protected under the deliberative process privilege, “purely

22 factual” material is not. F.T.C. v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984)

23 (“Warner”). However, factual material can still be protected if “its disclosure would reveal a

24 decision-maker’s mental process.” California Native Plant Soc’y, 251 F.R.D. at 413. “To

25 withhold documents containing factual information under the deliberative process privilege, the

26 declarant must show that the factual information is intertwined with the author’s opinions such

27 that the facts and opinions cannot be practically separated.” United States ex rel. Poehling v.

1 Dec. 14, 2018) (citing Warner, 742 F.2d at 1161).

2 B. Analysis

3 Carol Allen is an Engineering Manager with BAAQMD. She oversees three programs

4 related to BAAQMD’s “successful regulation of air quality within the Air District’s jurisdiction.”

5 Allen Decl. ¶¶ 2, 3. Allen has reviewed and evaluated permit applications from Schnitzer

6 regarding its West Oakland facility (the “Facility”) since 2006. These include applications to

7 “increase throughput at the facility, enclose the facility’s shredder, enclose the facility’s Joint

8 Products Plant, install Regenerative Thermal Oxidizers (‘RTOs’), and install an emergency

9 standby diesel-fired engine.” Id. at ¶ 5. Allen personally reviewed 339 documents, which at the

10 time represented approximately 10% of the total number of documents designated as subject to the

11 deliberative process privilege. She states that the documents she reviewed generally “consisted of

12 draft documents and internal discussions regarding the Air District’s regulation of the Facility,”

13 including “iterations of draft engineering evaluations, draft emissions calculations, draft permit

14 conditions, draft compliance agreements, draft test methodologies, and related internal strategy

15 discussions.” Id. at ¶¶ 6-8. For all but six of the documents Allen reviewed, she concludes that

16 the documents “were deliberative and pre-decisional,” containing “the mental processes, opinions,

17 recommendations, and/or advice of Air District employees with respect to the Air District’s

18 regulatory and enforcement policy towards the Facility.” According to Allen, all were “generated

19 prior to the adoption of Air District decisions and/or final policies regarding the Facility.” Id. at ¶

20 11.

21 1. Documents for Which BAAQMD Has Established Privilege

22 Considering Allen’s declaration, the exemplars, and the corresponding information in

23 BAAQMD’s privilege logs, the court concludes that BAAQMD has established that the following

24 exemplars are privileged because they are both pre-decisional and deliberative in that they are part

25 of the process by which the District’s decisions and policies were formulated: Exemplars 1, 4a, 7a,

26 7b, 8a, 8b, 10a, 10b, 10c, 12a, 12l, 13, 14, 15, 16, and 17.1 When examined in context, these

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1 documents bear the following hallmarks: (1) they are communications between BAAQMD staff or

2 information prepared by BAAQMD staff for internal use; (2) they reflect mental processes,

3 opinions, and deliberations, as well as preliminary studies, analyses, and evaluations related to

4 BAAQMD’s regulation of the Facility, including materials related to various permit applications

5 by Schnitzer; and (3) they are all pre-decisional, according to Allen’s sworn declaration.

6 Exemplars 18a-18d may be privileged but the District needs to clarify one fact. Exemplar

7 18a is an email in which Carol Allen forwards three attachments without comment to a non-

8 BAAQMD email address that starts with “Carol@...” Exemplars 18b-18d appear to be the three

9 attachments. The privilege log states that these documents reflect decision-making “regarding

10 sources at Schnitzer Steel’s Oakland facility.” If Allen was forwarding these attachments to

11 herself, the District has established the privilege. However, if Allen was sharing the documents

12 with a different Carol outside BAAQMD, they are not privileged, as discussed below. By May

13 17, 2024, BAAQMD shall file a supplemental declaration by Allen addressing this factual

14 question.

15 Notwithstanding the court’s conclusion that the foregoing documents are protected by the

16 deliberative process privilege, the privilege is not absolute. Warner, 742 F.2d at 1161. “A litigant

17 may obtain deliberative materials if his or her need for the materials and the need for accurate fact-

18 finding override the government’s interest in non-disclosure.” Id. It is the requesting party’s

19 burden “to show that the privilege should be waived in the instant case.” California Native Plant

20 Soc., 251 F.R.D. at 415. To determine whether waiver should occur, courts consider “1) the

21 relevance of the evidence; 2) the availability of other evidence; 3) the government’s role in the

22 litigation; and 4) the extent to which disclosure would hinder frank and independent discussion

23 regarding contemplated policies and decisions.” Warner, 742 F.2d at 1161. By May 20, 2024,

24 AIG shall file a brief that does not exceed four pages addressing any documents properly withheld

25 by BAAQMD on the basis of the deliberative process privilege for which AIG contends the court

26 should find waiver of the privilege in light of the Warner factors. The District may file a four-

27 page response, plus evidentiary support as required, by May 24, 2024.

2. Communications With and Materials from Third Parties

1

The following exemplars are not privileged. They consist of communications shared

2

between BAAQMD and third parties (for example, Schnitzer, a different state agency, or a non-

3

governmental organization) and/or materials submitted to BAAQMD from third parties: 3, 4b, 4d,

4

6b, 11a, 11b, 12e, 12g, 12h, 12i, 12j, 12k, and 20. BAAQMD’s privilege log entries indicate that

5

these documents were part of the decision-making process with respect to the District’s

6

enforcement policy towards the Facility, potential violations at the Facility and the District’s

7

resolution thereof, and “sources” at the Facility. However, the privilege log does not identify the

8

authors of the documents as BAAQMD employees and the documents are plainly authored by

9

third parties. There is no indication that they reflect internal advice, recommendations, opinions,

10

or suggestions by BAAQMD employees. Accordingly, the documents do not disclose the

11

personal opinions or “mental processes of decision-makers” and thus are not deliberative. See

12

California Native Plant Soc’y, 251 F.R.D. at 413. The fact that documents may have weighed into

13

an agency’s decision-making process—i.e., related to the process or considered by the agency

14

during that process—does not mean that they are deliberative, where, as here, they do not reflect

15

the agency’s views.

16

Additionally, Exemplar 4c is an undated, unsigned attachment to an email between

17

BAAQMD employees regarding Schnitzer (4a). The privilege log does not identify the author of

18

the document but based on the court’s review of Exemplars 4b and 4d, 4c appears to have been

19

authored by a third party, West Oakland Environmental Indicators Project (“WOEIP”), and

20

provided to BAAQMD. Exemplar 4c was not authored by a BAAQMD employee and is therefore

21

not protected by the deliberative process privilege as it does not reflect decision-makers’ personal

22

opinions or mental processes.

23

3. Communications Related to Response to Public Records Act Request

24 and Public Relations Decisions

25 Exemplar 6a is an email from a BAAQMD records custodian to other BAAQMD

26 employees regarding a June 2018 Public Records act request for records related to Schnitzer.

27 Exemplar 6c is a one-page attachment to the email that the records custodian proposed releasing in

1 decision-making “regarding the A’s Public Records Act requests related to Schnitzer Steel’s

2 Oakland facility.”

3 As noted, for the deliberative process privilege to apply, “a document must be both (1)

4 predecisional or antecedent to the adoption of agency policy and (2) deliberative, meaning it must

5 actually be related to the process by which policies are formulated.” Nat’l Wildlife Fed’n, 861

6 F.2d at 1117 (emphasis added). Exemplars 6a and 6c do not fall within the scope of the

7 deliberative process privilege because they pertain to a Public Records Act request, an issue that

8 does not clearly bear on agency policies or programs. The deliberative process privilege “shields

9 from public disclosure confidential inter-agency memoranda on matters of law or policy,” and a

10 document is part of the “‘deliberative process’ as long as it is ‘actually . . . related to the process

11 by which policies are formulated.’” Id. at 1116, 1118. The Ninth Circuit has explained that

12 “[g]overnment ‘deliberations regarding how best to address public relations matters or possible

13 responses to an inquiry received from an outside entity are not the type of policy decisions the

14 privilege is intended to protect.’” Transgender L. Ctr. v. Immigr. & Customs Enf’t (“TLC”), 33

15 F.4th 1186, 1198 (9th Cir. 2022) (quoting Al Otro Lado, Inc. v. Wolf, No. 3:17-cv-2366-BAS-

16 KSC, 2020 WL 6449152, at *4 (S.D. Cal. Nov. 2, 2020) (internal quotation marks and citation

17 omitted)).

18 Similarly, Exemplar 2 is not privileged. It is an email chain regarding a request from a

19 third party (WOEIP) to BAAQMD for its response to an announcement by Schnitzer of a

20 settlement related to LFM (light fibrous material). Part of the chain is an email in which a

21 BAAQMD employee forwarded comments “From Engineering” regarding Schnitzer’s

22 announcement. As with Exemplars 6a and 6c, agency “deliberations regarding how best to

23 address public relations matters . . . are not the type of policy decisions the privilege is intended to

24 protect.” TLC, 33 F.4th at 1198.

25 4. Communications and Materials for Which BAAQMD Has Not Met Its

Burden to Establish Application of the Privilege

26

The remaining exemplars are 5a, 5b, 12b, 12c, 12f, and 19a-19c. As previously noted, the

27

Ninth Circuit has “defined the ambit of the deliberative process privilege . . . narrowly” and the

1 agency bears the burden of showing the privilege applies. Sierra Club, Inc., 925 F.3d at 1011.

2 The District has not met its burden to establish application of the deliberative process privilege on

3 the current record as follows:

4 • Exemplars 5a and 5b: 5a is a May 2017 email chain between BAAQMD employees

5 regarding the “2015 Toxic Emissions Inventory” and an attachment labeled “2015

6 Toxic Emissions Inventory.” There is a reference in one of the emails that the

7 “2015 Toxic Emissions Inventory . . . is ready to be posted on the web site.” The

8 privilege log indicates that these documents are related to “a decision regarding

9 sources at Schnitzer Steel’s Oakland facility,” but the emails do not clearly bear on

10 such a decision. Rather, they appear to relate to a discussion of posting information

11 on a website, and the attachment appears to be information ready to be posted on a

12 website.

13 • Exemplars 12b, 12c, and 12f: These documents are attachments to a July 2017

14 email between BAAQMD employees regarding “files for Schnitzer.” The privilege

15 log indicates that these documents are related to “a decision regarding potential

16 violations or violations at Schnitzer Steel’s Oakland facility and resolution

17 thereof,” but BAAQMD does not explain, and it is not clear, how these three

18 attachments bear on such a decision.

19 • Exemplars 19a, 19b, and 19c: 19a is an August 2016 email chain between

20 BAAQMD employees regarding “facilities with a projected prioritization score

21 greater than or equal to 100,” and 19b and 19c are attachments thereto. The

22 privilege log indicates that these documents are related to “a decision regarding the

23 Air District’s enforcement policy towards Schnitzer Steel’s Oakland facility,” but

24 BAAQMD does not explain, and it is not clear, how the emails and attachments

25 bear on such a decision.

26 IV. BAAQMD’S REDACTIONS TO RESPONSIVE DOCUMENTS

27 BAAQMD submitted five examples of redacted documents; each contains extensive

1 facility, in addition to “information about hundreds of facilities subject to its oversight mandate.”

2 Jt. Letter 5. BAAQMD states that it redacted information “based solely on the non-responsive

3 quality of the information contained within those documents, i.e., that the information was about

4 other facilities and not protected by another privilege.” Id.2 For its part, AIG argues that the

5 redactions are improper and that “how BAAQMD regulates other facilities may be probative of

6 claims in this case.” Id. at 3.

7 As a general matter, it is improper to redact portions of otherwise responsive documents on

8 the grounds that those portions are not relevant or responsive. Doe v. Trump, 329 F.R.D. 262, 275

9 (W.D. Wash. 2018); see In re High-Tech Emp. Antitrust Litig., No. 11-CV-2509-LHK, 2013 WL

10 12230960, at *1 (N.D. Cal. Mar. 15, 2013) (“The Court will not permit Defendants to redact

11 information based on Defendants’ unilateral assessment of lack of relevance and/or

12 responsiveness.”). “It is a rare document that contains only relevant information; and irrelevant

13 information within an otherwise relevant document may provide context necessary to understand

14 the relevant information.” Doe, 329 F.R.D. at 276. Redactions are also highly disfavored where,

15 as here, there is a protective order in place. See Jt. Letter 1 (discussing protective order between

16 AIG and BAAQMD); Magana-Munoz v. W. Coast Berry Farms, LLC, No. 5:20-CV-02087-EJD,

17 2022 WL 6584545, at *2 (N.D. Cal. Sept. 29, 2022) (affording only “slight deference” to

18 defendant’s concern about disclosure of irrelevant information where there was a protective order

19 in place and disallowing redactions based only on responsiveness and relevancy).

20 BAAQMD does not explain why the protective order is not sufficient to protect its

21 interests in the redacted material. Accordingly, as BAAQMD has not shown a legal basis for its

22 redactions, BAAQMD must produce unredacted versions of all non-privileged responsive

23 documents by May 17, 2024.

24

25

26

2 Notwithstanding its statement that the redacted information is “not protected” by any privilege,

27

BAAQMD states that “where appropriate, [it agrees] to amend its privilege log to assert the law

V. INTERAGENCY AGREEMENTS UNDER WHICH BAAQMD WITHHELD

1 DOCUMENTS

2 Finally, BAQMD lodged the two interagency agreements pursuant to which it withheld

3 purportedly confidential documents. The first agreement is an interagency information sharing

4 agreement between the California Air Resources Board and BAAQMD. The second agreement is

5 entitled, “Joint Prosecution Confidentiality Agreement Regarding Investigation of Schnitzer Steel

6 Industries, Inc., in Oakland, California and Related Companies, and Others.” The agreements

7 themselves specify the actions any party must take upon receiving a request from a non-party for

8 information covered by the agreements, including notifying other parties of the request and

9 asserting objections to disclosure and all available privileges. According to BAAQMD,

10 documents produced pursuant to the first agreement are protected under the law enforcement

11 investigation privilege and the common interest privilege. Jt. Letter 5. BAAQMD contends that

12 documents shared under the second agreement are protected under the law enforcement and/or the

13 official information privilege. Id.3

14 “[T]he federal privilege applicable to the government interest in preserving confidentiality

15 of law enforcement records has various names,” including the “official information privilege” and

16 the “law enforcement privilege.” Deocampo v. City of Vallejo, Civ. No. S-06-1283 WBS GGH,

17 2007 WL 1589541, at *4 (E.D. Cal. June 1, 2007) (citing Sanchez v. City of Santa Ana, 936 F.2d

18 1027, 1033 (9th Cir. 1991) and In re Dep’t of Investigation of City of N.Y., 856 F.2d 481, 484 (2d

19 Cir. 1988)); see also United States v. McGraw-Hill Cos., Inc., No. CV 13-779-DOC (JCGx), 2014

20 WL 1647385, at *5 n.2 (C.D. Cal. Apr. 15, 2014) (describing different labels applied by courts to

21 the privilege). The purpose of the qualified privilege is “to prevent disclosure of law enforcement

22 techniques and procedures, to preserve the confidentiality of sources, to protect witness and law

23 enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and

24 otherwise to prevent interference with an investigation.” In re Dep’t of Investigation, 856 F.2d at

25

26

3 The court notes that only one of the deliberative process privilege exemplars submitted for in

camera review was also withheld pursuant to one of the interagency agreements at issue, Exemplar

27

3. As discussed above, Exemplar 3 is not protected by the deliberative process privilege because it

1 484.

2 The party asserting the privilege must make a “substantial threshold showing.” Soto v.

3 City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995) (citation omitted). In order to fulfill this

4 requirement, the party opposing disclosure must submit “at the time it files and serves its response

5 to the discovery request, a declaration or affidavit from a responsible official within the agency

6 who has personal knowledge of the principal matters to be attested to in the affidavit or

7 declaration.” Kelly v. San Jose, 114 F.R.D. 653, 661 (N.D. Cal. 1987); Soto, 162 F.R.D. at 613.

8 The affidavit must include:

9 1) an affirmation that the agency generated or collected the material

in issue and has maintained its confidentiality; (2) a statement that the

10 official has personally reviewed the material in question; (3) a specific

identification of the governmental or privacy interests that would be

11 threatened by disclosure of the material to plaintiff and/or his lawyer;

(4) a description of how disclosure subject to a carefully crafted

12 protective order would create a substantial risk of harm to significant

governmental or privacy interests, and (5) a projection of how much

13 harm would be done to the threatened interests if disclosure were

made.

14

15 Kelly, 114 F.R.D. at 670. If the party asserting the privilege “meets the threshold requirements,

16 the court will order an in camera review of the material and balance each party’s interests,” Soto,

17 162 F.R.D. at 613 (citations omitted), i.e., whether the government’s need for confidentiality

18 outweighs the requesting party’s need for the information.

19 BAAQMD did not submit a declaration in support of its invocation of the law

20 enforcement/official information privilege, and the joint letter contains no reference to any such

21 declaration. If the District wants to invoke the privilege with respect to certain documents, by

22 May 20, 2024, it must file a detailed declaration(s) supporting the privilege for each document in

23 accordance with Soto and Kelly. AIG may file a response that does not exceed two pages by May

24 24, 2024.

25 BAAQMD also raises the “common interest privilege.” Jt. Letter 5. However, the

26 common interest doctrine, also known as the joint defense doctrine or privilege, “is a doctrine that

27 prevents waiver of a pre-existing privilege if the privileged information is shared only with those

1 2017 WL 2485382, at *7 (N.D. Cal. June 8, 2017). The common interest doctrine is not an

2 independent privilege; rather, as an “exception[ ] to the rule on waiver . . . it comes into play only

3 if the communication at issue is privileged in the first instance.” Nidec Corp. v. Victor Co. of

4 Japan, 249 F.R.D. 575, 578 (N.D. Cal. 2007) (emphasis added).4 Therefore, in order to invoke the

5 common interest exception to waiver, BAAQMD must first establish that the withheld documents

6 are protected by the law enforcement/official information privilege, as discussed above.

7 VI. CONCLUSION

8 In sum, BAAQMD has established that it properly withheld some, but not all, of the

9 exemplars submitted for in camera review pursuant to the deliberative process privilege.

10 Accordingly, AIG’s motion to compel and challenge to the sufficiency of BAAQMD’s privilege

11 logs is granted in part. By May 17, 2024, BAAQMD shall produce to AIG all exemplars that it

12 improperly withheld and unredacted versions of all non-privileged responsive documents. By

13 May 17, 2024, BAAQMD shall file a supplemental declaration of Carol Allen addressing

14 Exemplars 18a-18d. By May 20, 2024, AIG shall file a brief that does not exceed four pages

15 addressing any documents properly withheld by BAAQMD based on the deliberative process

16 privilege for which AIG contends the court should find waiver of the privilege in light of the

17 Warner factors. Any response by BAAQMD is due by May 24, 2024 and may not exceed four

18 pages, excluding evidentiary support.

19 With respect to BAAQMD’s claim of law enforcement/official information privilege as to

20 documents subject to the interagency agreements, if BAAQMD wants to assert it with respect to

21 specific documents, it shall file a detailed declaration(s) supporting the privilege by May 20,

22 2024. Any response by AIG is due by May 24, 2024 and may not exceed two pages.

23 Using the rulings provided in this order and applying them as guidance across the universe

24

4 The common interest doctrine applies where (1) a communication is made by separate parties in

25

the course of a matter of common legal interest; (2) the communication is designed to further that

effort; and (3) the privilege has not been waived. Nidec, 24 F.R.D. at 578 (citing United States v.

26

Bergonzi, 216 F.R.D. 487, 495 (N.D. Cal. 2003)). The common interest doctrine is not limited to

parties to litigation, but can extend to “interested third parties who have a community of interests

27

with respect to the subject matter of the communications,” and “is applicable whenever parties

1 of withheld documents, BAAQMD shall re-review each of the documents it is withholding based

2 || on the deliberative process privilege and its privilege logs in light of the authority discussed

3 above. By May 21, 2024, BAAQMD shall produce to AIG all documents for which it withdraws

4 || its deliberative process privilege claims along with updated privilege logs. The parties shall then

5 meet and confer. If disputes remain after meeting and conferring, the parties shall submit a

6 || follow-up joint letter by May 31, 2024 that does not exceed five pages addressing any remaining

7 disputes.

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