“Broad allegations of harm, unsubstantiated by 23 specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.” 24 (internal quotation marks omitted)
How later courts described this case
- “Broad allegations of harm, unsubstantiated by 23 specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.” 24 (internal quotation marks omitted)
- “[A] resisting party must specifically describe how disclosure of 3 the requested documents in the particular case in question would be harmful.”
- “[A] 17 general claim of harm to the ‘public interest’ is insufficient to overcome the burden 18 placed on the party seeking to shield material from disclosure.”
- “[T]he deliberative process privilege 4 should be narrowly construed because confidentiality may impede full and fair 5 discovery of the truth.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 DANIEL SALDANA,
No. 2:24-cv-00895-DSF-AJR
12 Plaintiff,
MEMORANDUM DECISION
v.
13 AND ORDER GRANTING IN
PART AND DENYING IN PART
14 BRIAN ROBERTS, ET AL., PLAINTIFF’S MOTION TO
COMPEL DOCUMENTS FROM
15 Defendants. DEFENDANTS ROBERTS AND
STANTON (DKT. 89)
16
17
18 I.
19 INTRODUCTION
20 This is a civil rights lawsuit seeking damages for the wrongful incarceration
21 of Plaintiff Daniel Saldana (“Plaintiff”) who was exonerated after serving 33 years
22 in prison for a cime that he did not commit.1 (Dkt. 1 at 2.) Defendants Brian
23 Roberts, Keith Stanton, L.A. County, and Steven Sowders (collectively,
24
25 1 Plaintiff’s Complaint asserts a variety of civil rights claims under 42 U.S.C. §
1983, as well as related state law claims such as intentional infliction of emotional
26
distress, intentional interference with the right to obtain judicial review of legality of
27 confinement in violation of California Government Code § 845.4, negligence in
violation of California Civil Code § 1714, and respondeat superior or vicarious
28 liability under California Government Code § 815.2. (Dkt. 1 at 28-40.)
1 Sowders was an assistant district attorney for L.A. County at all times relevant to
2
this case. (Dkt. 1 at 7.) The claims against Sowders are not based on any role he
3
had in Plaintiff’s prosecution, but instead, Sowders is alleged to have been present at
4
a parole hearing in 2017 where Plaintiff’s co-defendant Raul Vidal confessed to the
5
crime and testified that Plaintiff was innocent. (Id. at 23-24.) The claims against
6
Sowders, and vicariously against L.A. County, are based on the allegation that
7
Sowders did not take action to free Plaintiff after learning of his innocence. (Id. at
8
25-26.) Defendants Roberts and Stanton were commissioners for the Board of
9
Parole Hearings (“BPH”) at all times relevant to this case. (Id. at 6.) Both Roberts
10
and Stanton are similarly alleged to have been at the 2017 parole hearing where
11
Vidal confessed and testified that Plaintiff was innocent. (Id. at 23-24.) The claims
12
against Roberts and Stanton are similarly based on the allegation that they did not
13
take action to free Plaintiff after learning of his innocence. (Id. at 25-26.)
14
15 This case is now in the discovery phase with a Fact Discovery Cut-Off of
16 May 5, 2025. (Dkt. 62 at 1.) Presently before the Court is a dispute related to the
17 production of 5 categories of emails by defendants Roberts and Stanton. (Dkt. 89.)
18 Specifically, Plaintiff challenges the assertion of the deliberative-process privilege,
19 official-information privilege, and attorney-client privilege by defendants Roberts
20 and Stanton as to the 5 categories of emails. (Dkt. 87.) For the reasons set forth
21 below, the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s motion to
22 compel production of the 5 categories of emails.
23
24 II.
25 PROCEDURAL HISTORY
26 The parties reached out to the Court requesting an informal discovery
27 conference on February 6, 2025. On February 11, 2025, the Court held an informal
28 discovery conference to discuss this dispute with the parties. (Dkt. 85.) Based on
1 short letter briefs and in camera review of the documents being withheld as
2
privileged. (Id. at 1.) The parties agreed that defendants Roberts and Stanton would
3
file their letter brief and provide a sample of documents being withheld as privileged
4
to the Court for in camera review by February 21, 2025. (Id.) The Court
5
encouraged Roberts and Stanton to identify a few exemplar documents for each type
6
of privilege being asserted (e.g., deliberative process, official information, attorney-
7
client privilege). (Id.) Roberts and Stanton agreed to meet and confer with Plaintiff
8
on how to structure the sampling. (Id.) The parties further agreed that Plaintiff
9
would have until February 26, 2025 to file a responsive letter brief. (Id. at 2.)
10
Pursuant to the agreement of the parties, defendants Roberts and Stanton filed
11
their letter brief on February 21, 2025 (the “BPH Brief”) and submitted to the Court
12
5 exemplar email chains for in camera review. (Dkt. 87.) On February 26, 2025,
13
Plaintiff filed his letter brief seeking to compel the production of documents by
14
15 defendants Roberts and Stanton (“Plaintiff’s Brief”). (Dkt. 89.) On February 28,
16 2025, the Court held a hearing to consider oral argument.
17
18 III.
19 LEGAL STANDARD
20 Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery in
21 federal cases and provides that parties may obtain discovery regarding any
22 nonprivileged matter that is relevant to any party’s claim or defense. Federal Rule
23 of Evidence 401 provides that evidence is relevant if: “(a) it has any tendency to
24 make a fact more or less probable than it would be without the evidence; and (b) the
25 fact is of consequence in determining the action.” Relevance under Rule 26(b)(1) is
26 defined broadly. See, e.g., Snipes v. United States, 334 F.R.D. 548, 550 (N.D. Cal.
27 2020); V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 309 (D. Nev. 2019) (noting that
28 relevance for discovery purposes remains broad even after the 2015 amendments to
1 LTD., 2020 WL 1042515 (D. Nev. Mar. 3, 2020). In addition to relevance, Rule
2
26(b)(1) requires that discovery be proportional to the needs of the case.
3
Proportionality is determined by a consideration of the following factors: “the
4
importance of the issues at stake in the action, the amount in controversy, the
5
parties’ relative access to relevant information, the parties’ resources, the
6
importance of the discovery in resolving the issues, and whether the burden or
7
expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P.
8
26(b)(1). “Information within this scope of discovery need not be admissible in
9
evidence to be discoverable.” Id.
10
As set forth above, Rule 26(b)(1) expressly recognizes that privileged matters
11
fall outside the scope of discovery. However, “[w]hen a party withholds
12
information otherwise discoverable by claiming that the information is privileged[,]
13
. . . the party must: (i) expressly make the claim; and (ii) describe the nature of the
14
15 documents, communications, or tangible things not produced or disclosed--and do
16 so in a manner that, without revealing information itself privileged or protected, will
17 enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). “In essence,
18 the party asserting the privilege must make a prima facie showing that the privilege
19 protects the information the party intends to withhold.” In re Grand Jury
20 Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992). The Ninth Circuit has
21 “previously recognized a number of means of sufficiently establishing the privilege,
22 one of which is the privilege log approach.” Id. “The party asserting an evidentiary
23 privilege has the burden to demonstrate that the privilege applies to the information
24 in question.” Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988).
25 Boilerplate objections or blanket refusals inserted into a discovery response are
26 insufficient to meet this burden. See Burlington N. & Santa Fe Ry. Co. v. U.S. Dist.
27 Ct. for Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005). Indeed, failure to
28 provide sufficient information to support the privilege may constitute waiver of the
1 F.R.D. 179, 182-83 (E.D. Cal. 1991).
2
Federal Rule of Civil Procedure 34(a) provides that a party may serve on
3
another a request for production of documents, electronically stored information, or
4
tangible things within the scope of Rule 26(b). Where a party fails to produce
5
documents requested under Rule 34, the requesting party may move to compel
6
discovery. Fed. R. Civ. P. 37(a). “Upon a motion to compel discovery, the movant
7
has the initial burden of demonstrating relevance.” Nguyen v. Lotus by Johnny
8
Dung Inc., 2019 WL 3064479, at *2 (C.D. Cal. June 5, 2019) (internal quotation
9
marks omitted). “Thereafter, the party opposing discovery has the burden of
10
showing that the discovery should be prohibited, and the burden of clarifying,
11
explaining or supporting its objections.” Garces v. Pickett, 2021 WL 978540, at *2
12
(E.D. Cal. Mar. 16, 2021). “The opposing party is required to carry a heavy burden
13
of showing why discovery was denied.” Id. (internal quotation marks omitted).
14
15 Specifically, the party opposing discovery must show that the requested discovery is
16 unreasonably cumulative or duplicative, or can be obtained from some other source
17 that is more convenient, less burdensome, or less expensive, the party seeking
18 discovery has had ample opportunity to obtain the information by discovery in the
19 action, or the proposed discovery is outside the scope permitted by Rule 26(b)(1).
20 See Fed. R. Civ. P. 26(b)(2)(C). The opposing party must specifically detail the
21 reason why the request is improper. See Beckman Indus., Inc. v. Int’l Ins. Co., 966
22 F.2d 470, 476 (9th Cir. 1992) (“Broad allegations of harm, unsubstantiated by
23 specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.”
24 (internal quotation marks omitted)).
25
26 \\
27 \\
28
1 DISCUSSION
2
Defendants Roberts and Stanton are withholding 5 categories of emails on the
3
basis of the deliberative-process privilege, official-information privilege, and
4
attorney-client privilege. (Dkt. 87 at 2.) The 5 categories are: (1) e-mails between
5
defendants Roberts and Stanton on September 1, 2017; (2) e-mails with the subject
6
line “Urgent” sent in June and July 2022 among non-parties Associate Chief Deputy
7
Commissioner Gunning, Deputy Commissioners Andres and Ruff, Chief Counsel
8
Blonien, and Senior Staff Attorney Young; (3) e-mails sent in June and July 2022
9
between non-parties Andres and Gunning; (4) e-mails sent in October and
10
December 2022 from nonparty Andres to himself; and (5) e-mails sent in February
11
2023 among non-party BPH staff members, Chief Counsel Blonien, Assistant Chief
12
Counsel McCray, and Assistant Chief Counsel Shultz. (Id.)
13
The emails in category 1 “expressly relate to [defendants Roberts and
14
15 Stanton’s] consideration of facts in preparing their decision on whether or not to
16 grant a non-party parole.” (Id. at 3.) The emails in categories 2 and 3 were
17 similarly sent among the hearing officers and BPH legal counsel in 2022 “for the
18 express purpose of assisting BPH and its hearing officers discuss policy and legal
19 determinations for a parole consideration hearing.” (Id.) The emails in category 4
20 are drafts of a letter from nonparty Andres to Associate Chief Deputy Commissioner
21
Gunning.2 The emails in category 5 among BPH staff and legal counsel in February
22 2023 “reflect discussions regarding potential litigation arising from a parole
23 suitability hearing.” (Id. at 6.) Plaintiffs seek production of the emails in all 5
24 categories in time for the upcoming depositions scheduled for mid-March and early
25
26
27 2 Defendants Roberts and Stanton do not appear to directly address the emails in
category 4 in their letter brief. (Dkt. 87.)
28
1 For the reasons set forth below, the Court GRANTS IN PART AND DENIES
2
IN PART Plaintiff’s motion to compel production of the 5 categories of emails.
3
With regard to category 1, the Court concludes that the exemplar email chain is
4
protected by the deliberative-process privilege and Plaintiff’s interest in obtaining
5
the emails does not justify overriding the privilege. With regard to category 2, the
6
Court also concludes that the exemplar email chain is protected by the deliberative-
7
process privilege and that Plaintiff’s interest in obtaining the emails does not justify
8
overriding the privilege as to those emails that involve legal advice. The Court also
9
finds in the alternative that almost all of the communications in the exemplar email
10
chain for category 2 are protected by the attorney-client privilege. However, the
11
Court concludes that there is one email chain (AGO 006410) that is not protected by
12
the attorney-client privilege and therefore Plaintiff’s interest in obtaining this one
13
email chain outweighs the government’s interest in non-disclosure. With regard to
14
15 both categories 1 and 2, the Court concludes that defendants Roberts and Stanton
16 have failed to meet their burden to justify application of the official-information
17 privilege and the Court therefore overrules the objection based on the official-
18 information privilege.
19 With regard to category 3, the Court concludes that the first two pages of the
20 exemplar email chain are protected by the deliberative-process privilege, but that
21 Plaintiff’s interest in obtaining the email chain overrides the government’s interest
22 in non-disclosure. Thus, the Court concludes that the first two pages of the
23
24
3 Plaintiff notes that the parties continue to dispute the basis for withholding
25 documents that fall into other categories aside form the 5 enumerated by defendants
Roberts and Stanton. (Dkt. 89 at 2 n.1.) However, the parties conferred and agreed
26
on these 5 categories for the purpose of the Court’s in camera review, as they
27 provided a sampling of each type of privilege asserted. (Id.) The Court has
received from defendants Roberts and Stanton 1 exemplar email chain for each of
28 the 5 categories for in camera review.
1 privilege. With regard to the last four pages of the exemplar email chain, the Court
2
concludes that the deliberative-process privilege does not apply. Thus, the Court
3
concludes that the last four pages of the exemplar email chain should be produced,
4
subject to redaction for attorney-client privilege. With regard to the entire exemplar
5
email chain for category 3, the Court concludes that defendants Roberts and Stanton
6
have failed to meet their burden to justify application of the official-information
7
privilege and the Court therefore overrules the objection based on the official-
8
information privilege.
9
With regard to category 4, the Court concludes that the exemplar emails are
10
not protected by the deliberative-process privilege or the official-information
11
privilege. Thus, the Court concludes that the exemplar emails should be produced,
12
subject to redaction for attorney-client privilege. Finally, with regard to category 5,
13
the Court similarly concludes that the exemplar emails are not protected by the
14
15 deliberative-process privilege or the official-information privilege. However, the
16 Court concludes that the entirety of the exemplar emails provided for category 5 are
17 protected by the attorney-client privilege and therefore do not need to be produced.
18 A. Plaintiff Has Met His Initial Burden Of Demonstrating Relevance And
19 Proportionality.
20 As set forth above, defendants Roberts and Stanton acknowledge that the 5
21 categories of emails relate to either the 2017 parole hearing where Vidal confessed
22 and exonerated Plaintiff, or the fall-out of this hearing and actions taken as a result
23 of Vidals’ exculpatory testimony. (Dkt. 87 at 2-6.) Thus, the Court easily
24 concludes that the 5 categories of emails are relevant to the case. The Court also
25 easily concludes that production of the 5 categories of emails is proportional to the
26 needs of the case, given that the emails have been identified and can simply be
27 produced without any or very little burden. See Fed. R. Civ. P. 26(b)(1). The Court
28 notes that defendants Roberts and Stanton do not contest either relevance or
1 Court must next determine whether defendants Roberts and Stanton have met the
2
“heavy burden” of showing why the discovery sought should be denied. See
3
Garces, 2021 WL 978540, at *2 (internal quotation marks omitted).
4
B. Roberts And Stanton Have Not Met Their Burden Of Demonstrating That
5
All Of The Emails Are Privileged.
6
As set forth above, Roberts and Stanton object to producing the 5 categories
7
of emails on the basis of the deliberative-process privilege, official-information
8
privilege, and attorney-client privilege. (Dkt. 87 at 2.) In support of their assertion
9
of the deliberative-process privilege, defendants Roberts and Stanton have provided
10
the declaration of Rhonda Skipper, Chief Deputy of Field Operations at the
11
California Board of Parole Hearings. (Dkt. 87-1.) Skipper declares that she has
12
reviewed the exemplar emails provided to the Court for in camera review and states
13
that they contain “pre-decisional and deliberative materials related to the [BPH’s]
14
15 internal discussions regarding the decisions and factors to evaluate parole suitability
16 for Plaintiff Daniel Saldana.” (Dkt. 87-1 at 2.) According to Skipper, “[t]he
17 documents and communications where the deliberative process privilege is asserted
18 were created prior to BPH reaching a final proposed decision to deny or grant non-
19 party Raul Vidal’s and Plaintiff Daniel Saldana’s parole.” (Id.) Skipper states that
20 the emails “include questions, recommendations, opinions, and analyses prepared to
21 assist hearing officers in reaching an informed and deliberate decision.” (Id. at 3.)
22 Skipper further states that the emails “contain internal assessments, proposed
23 courses of action, and considerations that were debated before reaching a proposed
24 decision at the hearings.” (Id.) Finally, Skipper states that “[d]isclosure of these
25 materials would chill candid discussions among agency personnel and harm BPH’s
26 ability to engage in open and frank policy deliberations.” (Id.)
27 In support of their assertion of the official-information privilege, defendants
28 Roberts and Stanton have provided the declaration of Tara Doetsch, Chief Deputy of
1 similarly declares that she has reviewed the exemplar emails provided to the Court
2
for in camera review and states that “they include information and documents
3
related to an incarcerated person other than Plaintiff and may contain information
4
related to staff and other incarcerated person[s].” (Dkt. 87-2 at 2-3.) According to
5
Doetsch, BPH and California Department of Corrections and Rehabilitation
6
(“CDCR”) “consider staff personnel records and related documents, as well as
7
records documents investigations into allegations of staff misconduct, to be
8
confidential and maintain them as such.” (Id. at 3.) Doetsch states that “[i]n
9
addition to privacy interests, relates of the requested information could lead to safety
10
and security concerns for staff, incarcerated people, and institutional operations.”
11
(Id. at 3-4.) Doetsch further states that “the dissemination of medical and personal
12
information in administrative grievances could subject incarcerated people and staff
13
to threats, coercion, or potential violence given the sensitive details contained in
14
15 those documents.” (Id. at 4.) Finally, Doetsch states that “[r]evealing
16 correspondence between commissioners and BPH legal counsel or legal staff would
17 significantly hinder open and candid discussions among parole board hearing
18 officers and agency legal staff if legal staff was unable to offer legal advice and
19 analyses, and if participants feared public disclosure of their communications.” (Id.
20 at 5.)
21 1. The Deliberative-Process Privilege.
22 The deliberative process-privilege is a qualified privilege that is intended to
23 protect the quality of agency decisions by promoting frank and independent
24 discussion among those responsible for governmental decision-making. See, e.g.,
25 F.T.C. v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984); Carter v.
26 U.S. Dep’t of Commerce, 307 F.3d 1084, 1089 (9th Cir. 2002) (“The purpose of this
27 privilege is to allow agencies freely to explore possibilities, engage in internal
28 debates, or play devil’s advocate without fear of public scrutiny.” (internal quotation
1 the privilege applies. F.T.C., 742 F.2d at 1161. Purely factual matter is not
2
deliberative, but the privilege applies if the factual matter cannot be segregated from
3
the deliberative material within the document. Id.
4
As a qualified privilege, a litigant may still obtain discovery of materials
5
protected by the privilege if the need for the materials outweighs the governmental
6
interest in keeping the decision-making process confidential. See Karnoski v.
7
Trump, 926 F.3d 1180, 1206 (9th Cir. 2019) (per curiam). In deciding whether to
8
override the privilege and allow discovery, there are four factors to be considered:
9
“1) the relevance of the evidence; 2) the availability of other evidence; 3) the
10
government’s role in the litigation; and 4) the extent to which disclosure would
11
hinder frank and independent discussion regarding contemplated policies and
12
decisions.” Id. (internal quotation marks omitted).
13
2. The Official-Information Privilege.
14
15 Federal common law recognizes a qualified privilege for official information.
16 See Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir.1990). “Because
17 this privilege is based upon the state’s interest in protecting against public disclosure
18 of sensitive information, courts examining a claim of privilege will balance the
19 plaintiff’s interest in disclosure against the government’s interest in keeping the
20 information secret.” Price v. County of San Diego, 165 F.R.D. 614, 620-21 (S.D.
21 Cal. 1996). When the official information privilege is asserted in response to a
22 discovery request, court have held that the responsible official within the agency
23 who has personal knowledge regarding the material must submit a declaration that:
24 (1) affirms that the agency has collected the material and held it in confidence; (2)
25 affirms that he or she has reviewed the material; (3) specifically asserts the
26 governmental or privacy interest which would be threatened by disclosure of the
27 material; (4) specifically explains the substantial risk of harm to those interests
28 which would result from disclosure; and (5) estimates the amount of harm which
1 blanket objection on the basis of the official-information privilege, but must make a
2
“specific claim of the rationale of the claimed privilege.” Id.
3
Courts have recognized ten factors to use in determining whether the official-
4
information privilege applies: (1) the extent to which disclosure will thwart
5
governmental processes by discouraging citizens from giving the government
6
information; (2) the impact upon persons who have given information of having
7
their identities disclosed; (3) the degree to which government self-evaluation and
8
consequent program improvement will be chilled by disclosure; (4) whether the
9
information sought is factual data or evaluative summary; (5) whether the party
10
seeking the discovery is an actual or potential defendant in any criminal proceeding
11
either pending or reasonably likely to follow from the incident in question; (6)
12
whether the police investigation has been completed; (7) whether any
13
intradepartmental disciplinary proceedings have arisen or may arise from the
14
15 investigation; (8) whether the plaintiff's suit is non-frivolous and brought in good
16 faith; (9) whether the information sought is available through other discovery or
17 from other sources; and (10) the importance of the information sought to the
18 plaintiff’s case. See Kelly v. City of San Jose, 114 F.R.D. 653, 663 (N.D. Cal.
19 1987); see also Miller v. Pancucci, 141 F.R.D. 292, 300 (C.D. Cal. 1992).
20 3. The Attorney-Client Privilege.
21 The fact that a person is a lawyer does not make all communications with that
22 person privileged. See, e.g., United States v. Chen, 99 F.3d 1495, 1501 (9th Cir.
23 1996). Instead, the Ninth Circuit has held that the attorney-client privilege has eight
24 essential elements: “(1) Where legal advice of any kind is sought (2) from a
25 professional legal adviser in his capacity as such, (3) the communications relating to
26 that purpose, (4) made in confidence (5) by the client, (6) are at his instance
27 permanently protected (7) from disclosure by himself or by the legal adviser, (8)
28 unless the protection be waived.” Matter of Fischel, 557 F.2d 209, 211 (9th Cir.
1 “The burden is on the party asserting the privilege to establish all the elements of the
2
privilege.” United States v. Martin, 278 F.3d 988, 999-1000 (9th Cir. 2002), as
3
amended on denial of reh’g (Mar. 13, 2002). “Because it impedes full and free
4
discovery of the truth, the attorney-client privilege is strictly construed.” Id. at 999.
5
4. Categories 1 & 2.
6
Defendants Roberts and Stanton contend that the emails in categories 1 and 2
7
are protected from disclosure by the deliberative-process privilege, the official-
8
information privilege, and the attorney-client privilege. (Dkt. 87 at 3-6.) As set
9
forth above, the emails in category 1 “expressly relate to [defendants Roberts and
10
Stanton’s] consideration of facts in preparing their decision on whether or not to
11
grant a non-party parole.” (Id.) The emails in category 2 were similarly sent among
12
the hearing officers and BPH legal counsel in 2022 “for the express purpose of
13
assisting BPH and its hearing officers discuss policy and legal determinations for a
14
15 parole consideration hearing.” (Id. at 3.) Roberts and Stanton contend that the
16 disclosure of emails in categories 1 and 2 “would harm effective BPH decision-
17 making processes and chill its ability to openly communicate internally, both now
18 and in the future.” (Id.) The Court will address each of the privileges asserted by
19 Roberts and Stanton below, in turn.
20 With regard to the deliberative-process privilege, the Court concludes that the
21 exemplar emails provided for categories 1 and 2 fall squarely within the privilege.
22 The exemplar email chain for category 1 is a set of emails between Roberts and
23 Stanton starting on August 31, 2017 and ending on September 1, 2017. In the email
24 chain, Roberts and Stanton are discussing whether to grant Vidal parole. Roberts
25 provides certain recommendations to Stanton and asks for Stanton’s opinion.
26 Stanton responds to the request and provides his views on the matters raised by
27 Roberts. The exemplar email chain for category 2 is a set of emails with the subject
28 line “Urgent” between Associate Chief Deputy Commissioner Gunning, Deputy
1 Young starting on June 30, 2022 and ending on May 30, 2023. The email chain
2
discusses an upcoming parole hearing for Plaintiff. In the email chain, both Blonien
3
and Young provide legal advice about the upcoming parole hearing.
4
As described above, the exemplar email chains for categories 1 and 2 are
5
predecisional because the communications were clearly “prepared in order to assist
6
an agency decisionmaker in arriving at his decision.” Assembly of State of Cal. v.
7
U.S. Dep’t of Com., 968 F.2d 916, 921 (9th Cir. 1992) (internal quotation marks
8
omitted), as amended on denial of reh’g (Sept. 17, 1992). The exemplar email
9
chains for categories 1 and 2 are also deliberative because they contain “opinions,
10
recommendations, or advice about agency policies.” United States v. Fernandez,
11
231 F.3d 1240, 1246 (9th Cir. 2000) (internal quotation marks omitted). Thus, the
12
Court must evaluate whether Plaintiff’s need for the emails in categories 1 and 2
13
overrides the government’s interest in non-disclosure. See F.T.C., 742 F.2d at 1161.
14
15 As set forth above, to decide whether to override the deliberative-process
16 privilege, courts consider: “1) the relevance of the evidence; 2) the availability of
17 other evidence; 3) the government’s role in the litigation; and 4) the extent to which
18 disclosure would hinder frank and independent discussion regarding contemplated
19 policies and decisions.” Karnoski, 926 F.3d at 1206 (internal quotation marks
20 omitted). With regard to the exemplar emails for category 1, the Court concludes
21 that Plaintiff’s need for these emails does not outweigh the government’s interest in
22 non-disclosure. The Court primarily bases this decision on the fact that the
23 exemplar emails do not contain any discussion of Vidal’s testimony exonerating
24 Plaintiff (or any other evidence of Plaintiff’s innocence). Instead, the discussion
25 between Roberts and Stanton is really focused on other aspects of whether to grant
26 Vidal parole and does not appear to have much relevance to the claims or defenses
27 in this case. Thus, the Court concludes that the exemplar emails for category 1 are
28 not sufficiently relevant to justify overriding the deliberative-process privilege. See
1 (“[G]eneral assertions of relevance alone are insufficient to breach the deliberative
2
process privilege.”).4
3
With regard to the exemplar emails for category 2, the Court concludes that
4
the first factor weighs in favor of disclosure because the emails directly address
5
Vidal’s testimony exonerating Plaintiff and therefore are highly relevant. The
6
second and third factors also weigh in favor of disclosure because the “evidence
7
sought is primarily, if not exclusively, under [the government’s] control, and the
8
government . . . is a party to and the focus of the litigation.” Karnoski, 926 F.3d at
9
1206. However, the fourth factor weighs heavily against disclosure because almost
10
all of the discussion in the email chain consists of giving or seeking legal advice.
11
Indeed, both Blonien and Young provide legal advice in the email chain about the
12
upcoming parole hearing. This legal advice weighs against disclosure under the
13
deliberative-process privilege and is also protected by the attorney-client privilege.
14
15 See Matter of Fischel, 557 F.2d at 211.
16 Therefore, the Court concludes that Plaintiff’s need for the exemplar emails in
17 category 2 do not outweigh the government’s interest in non-disclosure for any
18 portion of the emails protected by the attorney-client privilege. The Court also finds
19 in the alternative that almost all of the communications in the exemplar email chain
20
21 4 As discussed at the hearing on Plaintiff’s motion, the parties should meet and
confer in an effort to identify the remaining emails that fall within the scope of
22 category 1. Once that is done, defendants Roberts and Sowders can submit those
remaining emails in category 1 to the Court for in camera review and the Court will
23
review them to confirm that there is nothing in those emails which would cause the
24 Court to change its ruling as to any specific email. As set forth above, the Court’s
balancing of Plaintiff’s need for the remails versus the Government’s interest in
25 non-disclosure is primarily based on the fact that the exemplar emails did not
contain any discussion of Vidal’s testimony exonerating Plaintiff (or any other
26
evidence of Plaintiff’s innocence). If there are other emails that fall within the
27 scope of category 1 that contain discussions of such evidence, then the Court is
likely to find that Plaintiff’s interest in obtaining those emails outweighs the
28 government’s interest in non-disclosure.
1 there is one significant portion of the email chain that is extremely relevant to this
2
case and does not contain any legal advice. (See AGO 006410.) The Court
3
concludes that Plaintiff’s need for this one email chain contained on a single page
4
outweighs the government’s interest in non-disclosure and should be produced.5
5
With regard to the official-information privilege, the Court concludes that
6
defendants Roberts and Stanton have failed to meet their threshold burden to
7
specifically identify the governmental or privacy interests which would be
8
threatened by disclosure of the material, describe the substantial risk of harm to
9
those interests which would result from disclosure, and estimate the amount of harm
10
which would result from disclosure. See Price, 165 F.R.D. at 621. As set forth
11
above, defendants Roberts and Stanton have provided the declaration of Tara
12
Doetsch, Chief Deputy of Program Operations for the Board of Parole Hearings, in
13
support of their claim for the official-information privilege. (Dkt. 87-2.) But
14
15 Doetsch makes only generalized assertions of governmental and privacy interests, as
16 well as generalized assertions of potential harm. See Kelly, 114 F.R.D. at 672 (“[A]
17 general claim of harm to the ‘public interest’ is insufficient to overcome the burden
18 placed on the party seeking to shield material from disclosure.”).
19 Indeed, Doetsch fails to address any specific communication or how
20
21
5 As discussed at the hearing on Plaintiff’s motion, the parties should meet and
22 confer in an effort to identify the remaining emails that fall within the scope of
category 2. Once that is done, defendants Roberts and Sowders can submit those
23
remaining emails in category 2 to the Court for in camera review and the Court will
24 review them to confirm that there is nothing in those emails which would cause the
Court to change its ruling as to any specific email. As set forth above, the Court’s
25 balancing of Plaintiff’s need for the emails versus the Government’s interest in non-
disclosure is primarily based on the fact that almost all of the communications in the
26
exemplar emails are protected by the attorney-client privilege. For any emails in
27 category 2 that are not protected by the attorney-client privilege, the Court
concludes that Plaintiff’s interest in obtaining those emails outweighs the
28 government’s interest in non-disclosure.
1 identifies. (Dkt. 87-2); Chism v. Cnty. of San Bernardino, 159 F.R.D. 531, 535
2
(C.D. Cal. 1994) (“[A] resisting party must specifically describe how disclosure of
3
the requested documents in the particular case in question would be harmful.”).
4
Finally, Doetsch also fails “to address how disclosure, under a carefully crafted
5
protective order, would create a substantial risk of harm to significant government
6
interests.” Soto v. City of Concord, 162 F.R.D. 603, 614 (N.D. Cal. 1995). The
7
Court notes this case has a stipulated protective order, Plaintiff is represented by
8
counsel, Plaintiff is not incarcerated, and Plaintiff was exonerated of the crime for
9
which he was previously incarcerated. Accordingly, the Court concludes that
10
Doetsch’s generalized claims of potential security risks caused by disclosure lack
11
any basis in the record. Accordingly, the Court overrules the objection of
12
defendants Roberts and Stanton based on the official-information privilege.
13
5. Category 3.
14
15 Defendants Roberts and Stanton contend that the emails in category 3 are
16 protected from disclosure by the deliberative-process privilege, the official-
17 information privilege, and the attorney-client privilege. (Dkt. 87 at 3-6.) As set
18 forth above, the exemplar email chain provided for category 3 is a set of emails
19 between Associate Chief Deputy Commissioner Gunning and Deputy
20 Commissioners Andres starting on June 30, 2022 and ending on July 21, 2022. In
21 the first two pages of the email chain (AGO PRIV 000103-04), Andres and Gunning
22 are discussing a future parole hearing for Plaintiff. The email chain qualifies as
23 predecisional because Andres and Gunning are discussing preparations for the
24 hearing. See Assembly of State of Cal., 968 F.2d at 921. The email chain also
25 qualifies as deliberative because Andres and Gunning are sharing opinions,
26 recommendation, and advise about how best to move forward with the hearing
27 process. See Fernandez, 231 F.3d at 1246 (9th Cir. 2000). Thus, the Court
28 concludes that the first two pages of the email chain (AGO PRIV 000103-04) are
1 The Court must therefore evaluate whether Plaintiff’s need for this email
2
chain overrides the government’s interest in non-disclosure. See F.T.C., 742 F.2d at
3
1161. The Court concludes that the first factor weighs in favor of disclosure
4
because the emails directly address Vidal’s testimony exonerating Plaintiff and
5
therefore are highly relevant. The second and third factors also weigh in favor of
6
disclosure because the “evidence sought is primarily, if not exclusively, under [the
7
government’s] control, and the government . . . is a party to and the focus of the
8
litigation.” Karnoski, 926 F.3d at 1206. Finally, the fourth factor is neutral because
9
the protective order in this case can help mitigate any harm to the ability of
10
government employees to have frank and independent discussion regarding
11
contemplated policies and decisions. Accordingly, the Court concludes that
12
Plaintiff’s need for this email chain overrides the government’s interest in non-
13
disclosure. Accordingly, the Court overrules the assertion of the deliberative-
14
15 process privilege as to the first two pages of the email chain. (AGO PRIV 000103-
16 04). The Court notes, however, that the email chain includes a brief reference to a
17 discussion with Young to obtain legal advice, a brief comment from Andres to
18 Young, and a brief comment from Andres to Blonien. Defendants Roberts and
19 Stanton can redact these brief references and comments prior to production because
20 they are protected by the attorney-client privilege.
21 With regard to the last four pages of the email chain (AGO PRIV 000114-15,
22 000137, and 000140), Andres and Gunning are not discussing preparation for a
23 future parole hearing. Instead, they are discussing an internal personnel matter
24 directly related to the facts of this case. The deliberative-process privilege simply
25 does not apply to internal personnel matters. See, e.g., Swartwood v. Cnty. of San
26 Diego, 2013 WL 6670545, at *3 (S.D. Cal. Dec. 18, 2013). There is no basis to
27 conclude that the internal personnel matter being discussed contributed to the
28 formulation of any important public policy decision. See Soto v. City of Concord,
1 should be invoked only in the context of communications designed to directly
2
contribute to the formulation of important public policy.”); see also Thomas v. Cate,
3
715 F. Supp. 2d 1012, 1044 (E.D. Cal. 2010) (“[T]he deliberative process privilege
4
should be narrowly construed because confidentiality may impede full and fair
5
discovery of the truth.”). Accordingly, the Court concludes that the deliberative-
6
process privilege does not apply to the last four pages of the email chain (AGO
7
PRIV 000114-15, 000137, and 000140).6
8
The Court notes, however, that the last four pages of the email chain do
9
include references to and descriptions of communications to and from attorneys.
10
Therefore, defendants Roberts and Stanton may redact the references to and
11
descriptions of communications to and from attorneys based on the attorney-client
12
privilege. The Court cautions Roberts and Stanton to carefully apply redaction and
13
only redact the portions of the email chain where a statement is specifically
14
15 described as being made to or coming from an attorney.
16 With regard to the official-information privilege, the Court concludes that
17 defendants Roberts and Stanton have failed to meet their threshold burden to support
18 application of the privilege for the same reasons as discussed above with regard to
19 categories 1 and 2. See Price, 165 F.R.D. at 621. As set forth above, Doetsch
20 makes only generalized assertions of governmental and privacy interests, as well as
21 generalized assertions of potential harm. See Kelly, 114 F.R.D. at 672. Doetsch
22 also fails to address any specific communication or how disclosure of the documents
23
24 6 With regard to other emails within category 3, the Court’s view based on the
exemplar emails provided is that these emails should be produced, subject only to
25 redaction for attorney-client privilege. As noted above, some of the exemplar
emails are not protected by the deliberative-process privilege at all and for the
26
portion of the exemplar emails that fall within the privilege, the Plaintiff’s interest in
27 obtaining these emails outweighs the government’s interest in non-disclosure
because the emails in category 3 are extremely relevant to the claims at issue in this
28 case.
1 159 F.R.D. at 535. Finally, Doetsch also fails “to address how disclosure, under a
2
carefully crafted protective order, would create a substantial risk of harm to
3
significant government interests.” Soto, 162 F.R.D. at 614. Accordingly, the Court
4
overrules the objection of defendants Roberts and Stanton based on the official-
5
information privilege.
6
6. Category 4.
7
Defendants Roberts and Stanton do not appear to contend that the emails in
8
category 4 are protected by the deliberative-process privilege. (Dkt. 87 at 2-4.)
9
Instead, Defendants Roberts and Stanton appear to only raise the official-
10
information privilege and attorney-client privilege as to category 4. (Id. at 4-6.) As
11
set forth above, the exemplar emails provided for category 4 are drafts of a letter
12
from Deputy Commissioner Andres to Associate Chief Deputy Commissioner
13
Gunning that Andres repeatedly emails to himself as he works on the draft. The
14
15 email relates to an internal personnel matter based on the facts of this case and
16 clearly does not relate to the formulation of important public policy. Therefore, the
17 Court easily concludes for the avoidance of doubt that the deliberative-process
18 privilege does not apply to category 4.
19 With regard to the official-information privilege, the Court concludes that
20 defendants Roberts and Stanton have failed to meet their threshold burden to support
21 application of the privilege for the same reasons as discussed above with regard to
22 categories 1, 2, and 3. See Price, 165 F.R.D. at 621. As set forth above, Doetsch
23 makes only generalized assertions of governmental and privacy interests, as well as
24 generalized assertions of potential harm. See Kelly, 114 F.R.D. at 672. Doetsch
25 also fails to address any specific communication or how disclosure of the documents
26 in this case would lead to the generalized harms she identifies. (Dkt. 87-2); Chism,
27 159 F.R.D. at 535. Finally, Doetsch also fails “to address how disclosure, under a
28 carefully crafted protective order, would create a substantial risk of harm to
1 overrules the objection of defendants Roberts and Stanton based on the official-
2
information privilege.
3
The Court notes, however, that the exemplar emails for category 4 do include
4
references to and descriptions of communications to and from attorneys. Therefore,
5
defendants Roberts and Stanton may redact the references to and descriptions of
6
communications to and from attorneys based on the attorney-client privilege. The
7
Court cautions Roberts and Stanton to carefully apply redaction and only redact the
8
portions of the emails where a statement is specifically described as being made to
9
or coming from an attorney.7
10
7. Category 5.
11
Defendants Roberts and Stanton do not appear to contend that the emails in
12
category 5 are protected by the deliberative-process privilege. (Dkt. 87 at 2-4.)
13
Instead, Defendants Roberts and Stanton appear to only raise the official-
14
15 information privilege and attorney-client privilege as to category 5. (Id. at 4-6.) As
16 set forth above, the exemplar emails provided for category 5 are discussions among
17 BPH staff and legal counsel in February 2023 assessing potential legal liability for
18 the facts underlying this case. Therefore, the Court easily concludes that the emails
19 are protected by the attorney-client privilege. See Matter of Fischel, 557 F.2d at
20 211. By contrast, the Court also easily concludes for the avoidance of doubt that the
21 deliberative-process privilege does not apply. Indeed, the deliberative-process
22 privilege simply does not apply to internal investigations such as reflected in
23 category 5. See, e.g., Swartwood, 2013 WL 6670545, at *3.
24 With regard to the official-information privilege, the Court concludes that
25
26 7 With regard to other emails within category 4, the Court’s view based on the
27 exemplar emails provided is that these emails are extremely relevant to the claims at
issue in this case and should be produced, subject only to redaction for attorney-
28 client privilege.
1 application of the privilege for the same reasons as discussed above with regard to
2
categories 1, 2, 3, and 4. See Price, 165 F.R.D. at 621. As set forth above, Doetsch
3
makes only generalized assertions of governmental and privacy interests, as well as
4
generalized assertions of potential harm. See Kelly, 114 F.R.D. at 672. Doetsch
5
also fails to address any specific communication or how disclosure of the documents
6
in this case would lead to the generalized harms she identifies. (Dkt. 87-2); Chism,
7
159 F.R.D. at 535. Finally, Doetsch also fails “to address how disclosure, under a
8
carefully crafted protective order, would create a substantial risk of harm to
9
significant government interests.” Soto, 162 F.R.D. at 614. Accordingly, the Court
10
overrules the objection of defendants Roberts and Stanton based on the official-
11
information privilege.
12
In sum, the Court concludes that the entirety of the exemplar email chain
13
provided for category 5 constitutes a privileged internal investigation conducted by
14
15 and at the direction of legal counsel. Thus, the Court sustains the objection of
16 defendants Roberts and Stanton on the basis of the attorney-client privilege.
17 However, the Court notes that Plaintiff is entitled to receive a detailed privilege log
18 from defendants Roberts and Stanton justifying every email being withheld as
19 falling within the scope of category 5. Specifically, the privilege log must “describe
20 the nature of the documents, communications, or tangible things not produced or
21 disclosed—and do so in a manner that, without revealing information itself
22 privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ.
23 P. 26(b)(5); see also The Sedona Conference Commentary on Privilege Logs, 25
24 Sedona Conf. J. 221 (2024) (discussing methods to more efficiently establish that a
25 privilege applies). As set forth above, the Court has overruled the objection based
26 on the official-information privilege as to category 5, and therefore if there are any
27 other emails that fall within this category that are not protected by the attorney-
28 client privilege, they should be produced.
1 CONCLUSION
2
Consistent with the foregoing, Plaintiff’s motion to compel is GRANTED IN
3
PART AND DENIED IN PART. (Dkt. 89.) Specifically, the Court rules as
4
follows:
5
Category 1: The Court sustains the objection based on the deliberative-
6
process privilege. However, this conclusion is primarily based on the fact that the
7
exemplar emails did not contain any discussion of Vidal’s testimony exonerating
8
Plaintiff (or any other evidence of Plaintiff’s innocence). If there are other emails
9
that fall within the scope of category 1 that contain discussions of such evidence,
10
then the Court is likely to find that Plaintiff’s interest in obtaining those emails
11
outweighs the government’s interest in non-disclosure. The Court also overrules the
12
objection based on the official-information privilege.
13
Category 2: The Court sustains the objection based on the deliberative-
14
15 process privilege and the attorney-client privilege. However, the Court concludes
16 that there is one email chain (AGO 006410) that is not protected by the attorney-
17 client privilege and therefore the Court overrules the deliberative-process privilege
18 as to this one email chain. The Court also notes that the balancing of Plaintiff’s
19 need for the emails in this category versus the Government’s interest in non-
20 disclosure is primarily based on the fact that almost all of the communications in the
21 exemplar emails are protected by the attorney-client privilege. For any emails in
22 category 2 that are not protected by the attorney-client privilege, the Court overrules
23 the deliberative-process privilege. The Court also overrules the objection based on
24 the official-information privilege.
25 Category 3: The Court overrules the objection based on the deliberative-
26 process privilege. However, the exemplar email chain should be redacted for
27 attorney-client privilege. The Court also overrules the objection based on the
28 official-information privilege. For any other email that falls within category 3, the
1 attorney-client privilege.
2
Category 4: The Court overrules the objection based on the deliberative-
3
process privilege. The Court also overrules the objection based on the official-
4
information privilege. However, the exemplar email chain should be redacted for
5
attorney-client privilege. For any other email that falls within category 4, the Court
6
concludes that such email should be produced, subject to redaction for attorney-
7
client privilege.
8
Category 5: The Court overrules the objection based on the deliberative-
9
process privilege. The Court also overrules the objection based on the official-
10
information privilege. However, the Court sustains the objection based on the
11
attorney-client privilege as to all of the exemplar emails provided to the Court for
12
this category. For any other email withheld as falling within category 5, or any of
13
the other categories, defendants Roberts and Stanton must produce a detailed
14
15 privilege log to allow Plaintiff to meaningfully review the assertion of privilege. If
16 there are any other emails that fall within this category that are not protected by the
17 attorney-client privilege, they should be produced, either in full, or with redactions
18 (if needed).
19 Defendants Roberts and Stanton shall complete their production of
20 documents and privilege log pursuant to this Order within 10 days.
21
22 \\
23
24 \\
25
26 \\
27
28 \\
1 Finally, the Court notes that neither side sought an award of expenses with
regard to this discovery dispute. (Dkts. 87, 89.) Under Federal Rule of Civil
3 Procedure 37(a)(5)(C), where a motion to compel is granted in part and denied in
4 || Part. the court has discretion to apportion reasonable expenses for the motion. The
5 Court exercises its discretion to decline to award expenses for this motion. The
6 || Court’s conclusion is based on the fact that the parties have worked together
7 amicably to narrow the scope of the dispute and present the dispute for resolution in
g || an efficient manner through short letter briefs. This has already saved the parties
g || and the Court time and expense and the Court commends the parties for their
19 || Professionalism.
11 IT IS SO ORDERED.
12
13 || DATED: March 3, 2025 UL.
14 N. A. JOEL RICHLIN
UNITED STATES MAGISTRATE JUDGE
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