Smalley v. Contino et al

Filing 95

ORDER re 89 Memorandum filed by Maricopa, County of, Joseph M Arpaio, 90 First MOTION to Produce E Minutes Lynn Pucino filed by Blake Smalley. Signed by Judge David G Campbell on 12/12/2013. (DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Blake Smalley,

No. CV-12-02524-PHX-DGC
Plaintiff,

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v.

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ORDER

C Contino, et al.,

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Defendants.

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On November 20, 2013, the Court held a discovery conference call with the

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parties. At the Court’s direction, the parties submitted memoranda on the application of

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the deliberative process privilege in this case. Docs. 89, 90. For the reasons set forth

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below, the Court concludes that Defendants must turn over the requested executive

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session minutes.

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This case arises under 42 U.S.C. § 1983. Plaintiff seeks discovery of documents

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relating to Defendants’ policing practices, and the request covers minutes from executive

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sessions of the County Board of Supervisors. Defendants argue that the minutes are

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privileged under A.R.S. § 38-431.03 and the deliberative process privilege. Doc. 89 at 2.

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Defendants correctly observe that, under Federal Rules of Evidence 501, “state

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law governs privilege regarding a claim or defense for which state law supplies the rule

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of decision.” Doc. 89 at 4. Defendants argue that because “Smalley’s request for e-

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session minutes goes directly against Arizona state law,” Arizona privilege law – which

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Defendant believes is embodied in A.R.S. § 38-431.03 – applies. Doc. 89 at 4. But the

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“rule of decision” mentioned in Rule 501 is not the rule of decision on the privilege issue;

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it is the rule of decision on the claim or defense asserted in the case. This case arises

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under § 1983. Federal law, not Arizona law, supplies the rule of decision in such a case,

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and issues of privilege therefore are not resolved under Arizona law. See Crowe v. Cnty.

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of San Diego, 242 F. Supp. 2d 740, 746 (S.D. Cal. 2003); American Civil Liberties Union

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of Mississippi, Inc. v. Finch, 638 F.2d 1336, 1342 (5th Cir. 1981). Thus, even assuming

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A.R.S. § 38-413.03 establishes a privilege, it does not apply in this case.

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Issues of privilege in this case must be resolved under federal common law. Fed.

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R. Evid. 501. That law recognizes a deliberative process privilege. Dep’t of Interior v.

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Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). The privilege rests on the

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realization that officials will not communicate candidly among themselves if each remark

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is potentially subject to discovery.

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government by promoting open and frank exchanges among government decision

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makers. For the privilege to apply, a document must meet two requirements. “First, the

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document must be predecisional – it must have been generated before the adoption of an

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agency’s policy or decision . . . . Second, the document must be deliberative in nature,

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containing opinions, recommendations, or advice about agency policies. Purely factual

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material that does not reflect deliberative processes is not protected.” F.T.C. v. Warner

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Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984).

The privilege seeks to enhance the quality of

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Even if a party satisfies these requirements, the deliberative process privilege is

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qualified. “A litigant may obtain deliberative materials if his or her need for the materials

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and the need for accurate fact-finding override the government’s interest in non-

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disclosure.” Id. Among the factors that the Court must consider are: (1) the relevance of

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

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

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discussion regarding contemplated policies and decisions.

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determines that the privilege applies, the Court must consider whether portions of the

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document are still subject to disclosure. See Electronic Frontier Found. v. Office of the

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Id.

Thus, if the Court

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Dir. of Nat. Intelligence, 639 F.3d 876 (9th Cir. 2010) (endorsing application of Vaughn

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v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973), to deliberative process privilege).

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“The party asserting an evidentiary privilege has the burden to demonstrate that

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the privilege applies to the information in question.” Tornay v. United States, 840 F.2d

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1424, 1426 (9th Cir. 1988) (citing United States v. Hirsch, 803 F.2d 1493, 1496 (9th Cir.

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1986)). Defendants have not met this burden. Defendants make only general allegations

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regarding the applicability of the privilege. Defendants argue in their brief that EPA v.

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Mink, 410 U.S. 73, 87 (1973), provides the acknowledged test for determining whether

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the deliberative process privilege applies. Although Mink is an important case on the

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content of the deliberative process privilege, subsequent the Supreme Court and Ninth

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Circuit cases cited above have expounded on the privilege and established inquiries to

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determine how and when it applies.

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requirements of Klamath Water Users. They do not identify documents they seek to

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withhold under the privilege, address whether they are deliberative in nature, or address

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whether they contain purely factual material. Nor do they address the four factors to be

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considered under Warner in deciding whether the qualified privilege must give way.

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Because Defendants have not carried their burden of showing that the privilege applies in

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this case, the Court concludes that the Board of Supervisor’s executive session minutes

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must be produced.

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Defendants have not addressed the threshold

IT IS ORDERED that Defendants produce the Board of Supervisors e-session
minutes.
Dated this 12th day of December, 2013.

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