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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Blake Smalley, No. CV-12-02524-PHX-DGC Plaintiff, 10 11 v. 12 ORDER C Contino, et al., 13 Defendants. 14 15 On November 20, 2013, the Court held a discovery conference call with the 16 parties. At the Court’s direction, the parties submitted memoranda on the application of 17 the deliberative process privilege in this case. Docs. 89, 90. For the reasons set forth 18 below, the Court concludes that Defendants must turn over the requested executive 19 session minutes. 20 This case arises under 42 U.S.C. § 1983. Plaintiff seeks discovery of documents 21 relating to Defendants’ policing practices, and the request covers minutes from executive 22 sessions of the County Board of Supervisors. Defendants argue that the minutes are 23 privileged under A.R.S. § 38-431.03 and the deliberative process privilege. Doc. 89 at 2. 24 Defendants correctly observe that, under Federal Rules of Evidence 501, “state 25 law governs privilege regarding a claim or defense for which state law supplies the rule 26 of decision.” Doc. 89 at 4. Defendants argue that because “Smalley’s request for e- 27 session minutes goes directly against Arizona state law,” Arizona privilege law – which 28 Defendant believes is embodied in A.R.S. § 38-431.03 – applies. Doc. 89 at 4. But the 1 “rule of decision” mentioned in Rule 501 is not the rule of decision on the privilege issue; 2 it is the rule of decision on the claim or defense asserted in the case. This case arises 3 under § 1983. Federal law, not Arizona law, supplies the rule of decision in such a case, 4 and issues of privilege therefore are not resolved under Arizona law. See Crowe v. Cnty. 5 of San Diego, 242 F. Supp. 2d 740, 746 (S.D. Cal. 2003); American Civil Liberties Union 6 of Mississippi, Inc. v. Finch, 638 F.2d 1336, 1342 (5th Cir. 1981). Thus, even assuming 7 A.R.S. § 38-413.03 establishes a privilege, it does not apply in this case. 8 Issues of privilege in this case must be resolved under federal common law. Fed. 9 R. Evid. 501. That law recognizes a deliberative process privilege. Dep’t of Interior v. 10 Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). The privilege rests on the 11 realization that officials will not communicate candidly among themselves if each remark 12 is potentially subject to discovery. 13 government by promoting open and frank exchanges among government decision 14 makers. For the privilege to apply, a document must meet two requirements. “First, the 15 document must be predecisional – it must have been generated before the adoption of an 16 agency’s policy or decision . . . . Second, the document must be deliberative in nature, 17 containing opinions, recommendations, or advice about agency policies. Purely factual 18 material that does not reflect deliberative processes is not protected.” F.T.C. v. Warner 19 Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). The privilege seeks to enhance the quality of 20 Even if a party satisfies these requirements, the deliberative process privilege is 21 qualified. “A litigant may obtain deliberative materials if his or her need for the materials 22 and the need for accurate fact-finding override the government’s interest in non- 23 disclosure.” Id. Among the factors that the Court must consider are: (1) the relevance of 24 the evidence; (2) the availability of other evidence; (3) the government’s role in the 25 litigation; and (4) the extent to which disclosure would hinder frank and independent 26 discussion regarding contemplated policies and decisions. 27 determines that the privilege applies, the Court must consider whether portions of the 28 document are still subject to disclosure. See Electronic Frontier Found. v. Office of the -2- Id. Thus, if the Court 1 Dir. of Nat. Intelligence, 639 F.3d 876 (9th Cir. 2010) (endorsing application of Vaughn 2 v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973), to deliberative process privilege). 3 “The party asserting an evidentiary privilege has the burden to demonstrate that 4 the privilege applies to the information in question.” Tornay v. United States, 840 F.2d 5 1424, 1426 (9th Cir. 1988) (citing United States v. Hirsch, 803 F.2d 1493, 1496 (9th Cir. 6 1986)). Defendants have not met this burden. Defendants make only general allegations 7 regarding the applicability of the privilege. Defendants argue in their brief that EPA v. 8 Mink, 410 U.S. 73, 87 (1973), provides the acknowledged test for determining whether 9 the deliberative process privilege applies. Although Mink is an important case on the 10 content of the deliberative process privilege, subsequent the Supreme Court and Ninth 11 Circuit cases cited above have expounded on the privilege and established inquiries to 12 determine how and when it applies. 13 requirements of Klamath Water Users. They do not identify documents they seek to 14 withhold under the privilege, address whether they are deliberative in nature, or address 15 whether they contain purely factual material. Nor do they address the four factors to be 16 considered under Warner in deciding whether the qualified privilege must give way. 17 Because Defendants have not carried their burden of showing that the privilege applies in 18 this case, the Court concludes that the Board of Supervisor’s executive session minutes 19 must be produced. 20 21 22 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. 23 24 25 26 27 28 -3-

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