“Broad allegations of harm, unsubstantiated by 25 specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.” 26 (internal quotation marks omitted)
How later courts described this case
- “Broad allegations of harm, unsubstantiated by 25 specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.” 26 (internal quotation marks omitted)
- “The purpose of this 9 privilege is to allow agencies freely to explore possibilities, engage in internal 10 debates, or play devil’s advocate without fear of public scrutiny.” (internal quotation 11 marks omitted)
- “The deliberative process privilege should be invoked only in the context of 23 communications designed to directly contribute to the formulation of important 24 public policy.”
- “[T]he deliberative process privilege should be narrowly construed because 26 confidentiality may impede full and fair 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
PLAINTIFF’S MOTION TO
14 BRIAN ROBERTS, ET AL., COMPEL PRODUCTION OF
DOCUMENST FROM
15 Defendants. DEFENDANTS L.A. COUNTY
AND SOWDERS (DKT. 88)
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 16 specific emails by defendants L.A. County and Sowders. (Dkt.
18 86.) Specifically, Plaintiff challenges the assertion of deliberative-process privilege
19 by defendants L.A. County and Sowders as to the emails. (Dkt. 88.) For the
20 reasons set forth below, the Court concludes that defendants L.A. County and
21 Sowders have failed to meet their burden to demonstrate that the deliberative-
22 process privilege applies to the 16 emails. Accordingly, the Court OVERRULES
23 the objections based on the deliberative-process privilege and orders defendants
24 L.A. County and Sowders to produce the 16 emails within 7 days, subject to certain
25 redactions discussed below.
26
27 \\
28 \\
1 PROCEDURAL HISTORY
2
The parties reached out to the Court requesting an informal discovery
3
conference on February 6, 2025. On February 11, 2025, the Court held an informal
4
discovery conference to discuss the discovery dispute with the parties. (Dkt. 85.)
5
Based on the discussion, the parties agreed to resolve their dispute through the
6
submission of short letter briefs and in camera review of the documents being
7
withheld as privileged. (Id. at 1.) The parties agreed that defendants L.A. County
8
and Sowders would file their letter brief and provide all documents being withheld
9
as privileged to the Court for in camera review by February 21, 2025. (Id.) The
10
parties further agreed that Plaintiff would have until February 26, 2025 to file a
11
responsive letter brief. (Id.)
12
Pursuant to the agreement of the parties, defendants L.A. County and
13
Sowders filed their letter brief on February 21, 2025 (the “L.A. County Brief”) and
14
15 submitted 16 emails to the Court for in camera review. (Dkt. 86.) On February 26,
16 2025, Plaintiff filed letter brief seeking to compel the production of documents by
17 L.A. County and Sowders (“Plaintiff’s Brief”). (Dkt. 88.) On February 28, 2025,
18 the Court held a hearing to consider oral argument.
19
20 III.
21 LEGAL STANDARD
22 Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery in
23 federal cases and provides that parties may obtain discovery regarding any
24 nonprivileged matter that is relevant to any party’s claim or defense. Federal Rule
25 of Evidence 401 provides that evidence is relevant if: “(a) it has any tendency to
26 make a fact more or less probable than it would be without the evidence; and (b) the
27 fact is of consequence in determining the action.” Relevance under Rule 26(b)(1) is
28 defined broadly. See, e.g., Snipes v. United States, 334 F.R.D. 548, 550 (N.D. Cal.
1 relevance for discovery purposes remains broad even after the 2015 amendments to
2
the Federal Rules of Civil Procedure), aff’d sub nom., V5 Techs., LLC v. Switch,
3
LTD., 2020 WL 1042515 (D. Nev. Mar. 3, 2020). In addition to relevance, Rule
4
26(b)(1) requires that discovery be proportional to the needs of the case.
5
Proportionality is determined by a consideration of the following factors: “the
6
importance of the issues at stake in the action, the amount in controversy, the
7
parties’ relative access to relevant information, the parties’ resources, the
8
importance of the discovery in resolving the issues, and whether the burden or
9
expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P.
10
26(b)(1). “Information within this scope of discovery need not be admissible in
11
evidence to be discoverable.” Id.
12
As set forth above, Rule 26(b)(1) expressly recognizes that privileged matters
13
fall outside the scope of discovery. However, “[w]hen a party withholds
14
15 information otherwise discoverable by claiming that the information is privileged[,]
16 . . . the party must: (i) expressly make the claim; and (ii) describe the nature of the
17 documents, communications, or tangible things not produced or disclosed--and do
18 so in a manner that, without revealing information itself privileged or protected, will
19 enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). “In essence,
20 the party asserting the privilege must make a prima facie showing that the privilege
21 protects the information the party intends to withhold.” In re Grand Jury
22 Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992). The Ninth Circuit has
23 “previously recognized a number of means of sufficiently establishing the privilege,
24 one of which is the privilege log approach.” Id. “The party asserting an evidentiary
25 privilege has the burden to demonstrate that the privilege applies to the information
26 in question.” Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988).
27 Boilerplate objections or blanket refusals inserted into a discovery response are
28 insufficient to meet this burden. See Burlington N. & Santa Fe Ry. Co. v. U.S. Dist.
1 provide sufficient information to support the privilege may constitute waiver of the
2
privilege. See, e.g., Eureka Fin. Corp. v. Hartford Accident & Indem. Co., 136
3
F.R.D. 179, 182-83 (E.D. Cal. 1991).
4
Federal Rule of Civil Procedure 34(a) provides that a party may serve on
5
another a request for production of documents, electronically stored information, or
6
tangible things within the scope of Rule 26(b). Where a party fails to produce
7
documents requested under Rule 34, the requesting party may move to compel
8
discovery. Fed. R. Civ. P. 37(a). “Upon a motion to compel discovery, the movant
9
has the initial burden of demonstrating relevance.” Nguyen v. Lotus by Johnny
10
Dung Inc., 2019 WL 3064479, at *2 (C.D. Cal. June 5, 2019) (internal quotation
11
marks omitted). “Thereafter, the party opposing discovery has the burden of
12
showing that the discovery should be prohibited, and the burden of clarifying,
13
explaining or supporting its objections.” Garces v. Pickett, 2021 WL 978540, at *2
14
15 (E.D. Cal. Mar. 16, 2021). “The opposing party is required to carry a heavy burden
16 of showing why discovery was denied.” Id. (internal quotation marks omitted).
17 Specifically, the party opposing discovery must show that the requested discovery is
18 unreasonably cumulative or duplicative, or can be obtained from some other source
19 that is more convenient, less burdensome, or less expensive, the party seeking
20 discovery has had ample opportunity to obtain the information by discovery in the
21 action, or the proposed discovery is outside the scope permitted by Rule 26(b)(1).
22 See Fed. R. Civ. P. 26(b)(2)(C). The opposing party must specifically detail the
23 reason why the request is improper. See Beckman Indus., Inc. v. Int’l Ins. Co., 966
24 F.2d 470, 476 (9th Cir. 1992) (“Broad allegations of harm, unsubstantiated by
25 specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.”
26 (internal quotation marks omitted)).
27
28
1 DISCUSSION
2
Defendants L.A. County and Sowders are withholding a total of 16 emails on
3
the basis of the deliberative-process privilege. (Dkt. 86.) The emails all relate to the
4
early stages of an internal investigation by the L.A. District Attorney’s Office. (Id.
5
at 2.) According to L.A. County and Sowders, “[e]ach of the communications were
6
generated at the outset of the investigation before the rendering of any decision or
7
determination.” (Id.) L.A. County and Sowders contend that the emails “melded
8
the analysis and application of legal and policy issues within the [L.A. District
9
Attorney’s Office].” (Id.) L.A. County and Sowders further contend that “the
10
communications contain personal impressions and beliefs as to the purpose, scope,
11
and subject matter of the investigation; individual interpretations of protocol and
12
policies; preliminary conclusions about potential investigation outcomes; and
13
impressions and evaluations of the investigative evidence.” (Id. (internal quotation
14
15 marks omitted).) Plaintiffs seek production of these emails because they are “highly
16 relevant” to the alleged misconduct at issue and suspect that “the documents may be
17 damaging to Defendants’ case.” (Dkt. 88.)
18 For the reasons set forth below, the Court concludes that Plaintiff has met his
19 initial burden of demonstrating relevance and proportionality. However, defendants
20 L.A. County and Sowders have not met their burden of demonstrating that the
21 deliberative-process privilege applies. Accordingly, the Court OVERRULES the
22 objections based on the deliberative-process privilege and orders defendants L.A.
23 County and Sowders to produce the 16 emails within 7 days, subject to certain
24 redactions discussed below.
25 A. Plaintiff Has Met His Initial Burden Of Demonstrating Relevance And
26 Proportionality.
27 As set forth above, defendants L.A. County and Sowders acknowledge that
28 the 16 emails relate to the early stages of an internal investigation by the L.A.
1 at 2.) Thus, the Court easily concludes that the 16 emails are highly relevant to the
2
case. The Court also easily concludes that production of the 16 emails is
3
proportional to the needs of the case, given that the emails have been identified and
4
can simply be produced without any or very little burden. See Fed. R. Civ. P.
5
26(b)(1). The Court notes that defendants L.A. County and Sowders do not contest
6
either relevance or proportionality as to the 16 emails. (Dkt. 86 at 1-3.) Therefore,
7
the Court must next determine whether defendants L.A. County and Sowders have
8
met the “heavy burden” of showing why the discovery sought should be denied.
9
See Garces, 2021 WL 978540, at *2 (internal quotation marks omitted).
10
B. L.A. County And Sowders Have Not Met Their Burden Of Demonstrating
11
That The Deliberative-Process Privilege Applies.
12
As set forth above, L.A. County and Sowders object to producing the 16
13
emails on the basis of the deliberative-process privilege. (Dkt. 86 at 1.) In support
14
15 of their assertion of privilege, they have provided the declaration of Julie Dixon
16 Silva, Director of the Employee Relations and Bureau of Administrative Services
17 Division in the L.A. District Attorney’s Office. (Dkt. 86-1.) Silva declares that she
18 has reviewed the 16 emails and determined on behalf of the L.A. District Attorney’s
19 Office to assert the claim of deliberative-process privilege with respect to these
20 communications. (Id. at 3.) According to Silva, [t]he subject communications
21 contain personal impressions and beliefs as to the purpose, scope, and subject matter
22 of the investigation; individual interpretations of protocol and policies; preliminary
23 conclusions about potential investigation outcomes; and impressions and evaluations
24 of investigative evidence.” (Id.) Silva states that the deliberative process-privilege
25 is claimed here “to protect [the L.A. District Attorney’s Office’s] deliberative
26 process and the impressions, evaluations, opinions, recommendations, work product,
27 or theories of [the L.A. District Attorney’s Office] personnel which comprise part of
28 a process by which [L.A. District Attorney’s Office] decisions are formulated.” (Id.
1 prematurely disclose the views of [the L.A. District Attorney’s Office], suggesting
2
an official position where the communications, at the time of their writing, were
3
indicative of only a personal position.” (Id.)
4
The deliberative-process privilege is a qualified privilege that is intended to
5
protect the quality of agency decisions by promoting frank and independent
6
discussion among those responsible for governmental decision-making. See, e.g.,
7
F.T.C. v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984); Carter v.
8
U.S. Dep’t of Com., 307 F.3d 1084, 1089 (9th Cir. 2002) (“The purpose of this
9
privilege is to allow agencies freely to explore possibilities, engage in internal
10
debates, or play devil’s advocate without fear of public scrutiny.” (internal quotation
11
marks omitted)).2 If a document is both “predecisional” and “deliberative” in
12
nature, the privilege applies. F.T.C., 742 F.2d at 1161. Purely factual matter is not
13
deliberative, but the privilege applies if the factual matter cannot be segregated from
14
15 the deliberative material within the document. Id.
16 As a qualified privilege, a litigant may still obtain discovery of materials
17 protected by the privilege if the need for the materials outweighs the governmental
18 interest in keeping the decision-making process confidential. See Karnoski v.
19 Trump, 926 F.3d 1180, 1206 (9th Cir. 2019) (per curiam). In deciding whether to
20 override the privilege and allow discovery, there are four factors to be considered:
21 “1) the relevance of the evidence; 2) the availability of other evidence; 3) the
22 government’s role in the litigation; and 4) the extent to which disclosure would
23 hinder frank and independent discussion regarding contemplated policies and
24
25 2 L.A. County and Sowders rely on both federal and state cases discussing the
deliberative-process privilege. (Dkt. 86 at 1-2.) However, the Ninth Circuit has
26
held that “[w]here there are federal question claims and pendent state law claims
27 present, the federal law of privilege applies.” Agster v. Maricopa Cnty., 422 F.3d
836, 839 (9th Cir. 2005). Thus, the Court relies on federal privilege law for its
28 analysis.
1 Here, the Court concludes that the deliberative-process privilege does not
2
apply to the 16 emails because the emails relate to an internal affairs investigation,
3
not the formulation of an agency policy. Indeed, “courts in the Ninth Circuit have
4
rejected a defendant’s use of the deliberative process privilege in relation to internal
5
affairs investigations, as these communications are not designed to contribute to the
6
formulation of important public policy and are routinely generated.” Swartwood v.
7
Cnty. of San Diego, 2013 WL 6670545, at *3 (S.D. Cal. Dec. 18, 2013); accord
8
Mayfield v. Cnty. of Los Angeles, 2020 WL 2510649, at *1 (C.D. Cal. Mar. 20,
9
2020); Starr v. Cnty. of Los Angeles, 2013 WL 12233527, at *1 (C.D. Cal. May 9,
10
2013); Dominguez v. City of Los Angeles, 2017 WL 10605960, at *6 (C.D. Cal.
11
Nov. 18, 2017); Howard v. Cnty. of San Diego, 2011 WL 2182441, at *4 (S.D. Cal.
12
June 3, 2011). While these cases involved mostly suits against police departments,
13
their rationale for denying the privilege applies here all the same. That is because
14
15 the privilege’s “ultimate purpose” is “to protect the quality of agency decisions” by
16 promoting “frank and independent discussion among those responsible for making
17 governmental decisions,” and by protecting “against premature disclosure of
18 proposed agency policies or decisions.” F.T.C., 742 F.2d at 1161.
19 An internal investigation of the alleged misconduct by Sowders does not
20 directly contribute to the formulation of important public policy by the L.A. District
21 Attorney’s Office. See Soto v. City of Concord, 162 F.R.D. 603, 612-13 (N.D. Cal.
22 1995) (“The deliberative process privilege should be invoked only in the context of
23 communications designed to directly contribute to the formulation of important
24 public policy.”); see also Thomas v. Cate, 715 F. Supp. 2d 1012, 1044 (E.D. Cal.
25 2010) (“[T]he deliberative process privilege should be narrowly construed because
26 confidentiality may impede full and fair discovery of the truth.”). Indeed, the Ninth
27 Circuit has explained that to assert a claim of deliberative-process privilege, “the
28 agency must identify a specific decision to which the document is predecisional.”
1 Here, however, Silva’s declaration fails to identify any decision by the L.A. District
2
Attorney’s Office to which the 16 emails are predecisional. (Dkt. 86-1.) The most
3
Silva says is that the emails reflect “the impressions, evaluations, opinions,
4
recommendations, work product, or theories of [L.A. District Attorney’s Office]
5
personnel which comprise part of a process by which [the L.A. District Attorney’s
6
Office’s] decisions are formulated.” (Id. at 4.)
7
The Court has reviewed the 16 emails in camera and the emails themselves
8
make clear that they are part of an internal investigation by the L.A. District
9
Attorney’s Office into the alleged misconduct at issue in this case. While it is true
10
that the emails include individual interpretations of protocol and policies, there is
11
simply no discussion of any policy decision to be made by the L.A. District
12
Attorney’s Office as a result of the investigation. Instead, the investigation appears
13
to be focused on evaluating the merits of this lawsuit.3 The emails do not reach any
14
15 conclusion about the merits of the lawsuit and are purely preliminary in nature. One
16 of the emails contains a review of the 2017 parole hearing transcript in which Vidal
17 confessed and exonerated Plaintiff. The email simply summarizes the key facts
18 from the transcript and highlights statements favorable to Sowders. Thus, the Court
19 concludes that L.A. County and Sowders have failed to meet their burden to show
20 that the deliberative-process privilege applies to the 16 emails.
21 Moreover, even if the deliberative-process privilege applied, which it does
22 not, the Court would find that Plaintiff’s “need for the materials and the need for
23 accurate fact-finding override[s] the government’s interest in non-disclosure.”
24
25
3 L.A. County and Sowders are not asserting attorney-client privilege or the
26 attorney work-product doctrine. (Dkt. 86.) According to Plaintiff, defendants L.A.
County and Sowders had initially asserted attorney-client privilege, but later
27 withdrew that assertion and switched to only the deliberative-process privilege.
(Dkt. 88 at 1.)
28
1 deliberative-process privilege, courts consider: “1) the relevance of the evidence; 2)
2
the availability of other evidence; 3) the government’s role in the litigation; and 4)
3
the extent to which disclosure would hinder frank and independent discussion
4
regarding contemplated policies and decisions.” Karnoski, 926 F.3d at 1206
5
(internal quotation marks omitted). Here, the first factor is easily met since the
6
emails relate to an investigation of the alleged misconduct at issue in this case. The
7
second and third factors also support disclosure because the “evidence sought is
8
primarily, if not exclusively, under [the government’s] control, and the
9
government . . . is a party to and the focus of the litigation.” Id. Finally, the fourth
10
factor also supports disclosure because L.A. County has failed to identify any
11
specific policy decision made as a result of the internal investigation and there is a
12
protective order in place in this case. See Mayfield, 2020 WL 2510649, at *2 (“And
13
the fourth factor also tips in favor of disclosure because the County has not
14
15 convincingly explained how disclosure of the investigative files in this specific case
16 would hinder candid discussion of contemplated public policies, especially given
17 that there is a protective order in place.”).
18 In short, the Court concludes that L.A. County and Sowders have not met the
19 “heavy burden” of showing why the 16 emails should be withheld as privileged.
20 Garces, 2021 WL 978540, at *2 (internal quotation marks omitted). Accordingly,
21 L.A. County and Sowders are directed to produce the 16 emails within 7 days.
22 The Court notes that several of the emails appear to reference an internal
23 investigation related to a different case that appears unrelated. Assuming this other
24 investigation is unrelated, then the Court believes that redactions of the references to
25 this other investigation are appropriate prior to production of the emails.
26
27 \\
28 \\
1 V.
CONCLUSION
3 Consistent with the foregoing, Plaintiff's motion to compel is GRANTED.
A (Dkt. 88.) Specifically, the Court OVERRULES the objections based on
5 deliberative-process privilege asserted by defendants L.A. County and Sowders as to
6 || the 16 emails at issue. (Dkt. 86.) Defendants L.A. County and Sowders may redact
7 || the references in these emails to an unrelated investigation and then must produce
g || the emails within 7 days.
9 Finally, the Court notes that neither side sought an award of expenses with
19 || tegard to this discovery dispute. (Dkts. 86, 88.) Under Federal Rule of Civil
11 Procedure 37(a)(5)(A), where a motion to compel is granted, the court must award
12 || the moving party’s reasonable expenses incurred in making the motion unless the
13. || Court finds that the movant filed the motion before attempting in good faith to obtain
14 || the disclosure without court action, the opposing party’s nondisclosure, response, or
15 || objection was substantially justified, or other circumstances make an award of
16 || ©Xpenses unjust. The Court concludes that the circumstances of this dispute make
17 || an award of expenses unjust. The Court’s conclusion is based on the fact that the
1g || parties have worked together amicably to narrow the scope of the dispute and
19 || present the dispute for resolution in an efficient manner through short letter briefs.
20 || This has already saved the parties and the Court time and expense and the Court
31 || commends the parties for their professionalism. Awarding expenses to the
32 || prevailing party under these circumstances would therefore be unjust. See Fed. R.
23 || Civ. P. 37(a)(5)(A).
4 IT IS SO ORDERED.
25
26 || DATED: February 28, 2025
27 ON. A. JOEL RICHLIN
UNITED STATES MAGISTRATE JUDGE
28
12