Plata et al v. Schwarzenegger et al

Filing 1469

ORDER by Judges Stephen Reinhardt, Lawrence K. Karlton, and Thelton E. Henderson denying 1464 Defendants' Motion for Reconsideration of the magistrate judge's September 10, 2008 order re: the deposition of Matthew Cate. (tehlc3, COURT STAFF) (Filed on 9/11/2008)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 On September 10, 2008, the magistrate judge granted "plaintiffs' September 5, 2008 v. ARNOLD SCHWARZENEGGER, et al., Defendants. v. ARNOLD SCHWARZENEGGER, et al., Defendants. MARCIANO PLATA, et al., Plaintiffs, RALPH COLEMAN, et al., Plaintiffs, NO. CIV S-90-0520 LKK JFM P THREE-JUDGE COURT IN THE UNITED STATES DISTRICT COURTS FOR THE EASTERN DISTRICT OF CALIFORNIA AND THE NORTHERN DISTRICT OF CALIFORNIA UNITED STATES DISTRICT COURT COMPOSED OF THREE JUDGES PURSUANT TO SECTION 2284, TITLE 28 UNITED STATES CODE

NO. C01-1351 TEH THREE-JUDGE COURT ORDER DENYING DEFENDANTS' MOTION FOR RECONSIDERATION OF THE MAGISTRATE JUDGE'S SEPTEMBER 10, 2008 ORDER

24 motion to reopen the deposition of [California Department of Corrections and Rehabilitation 25 Secretary] Matthew Cate and to require Mr. Cate to respond to questions about 26 communications with the Governor and the Governor's aides." Sept. 10, 2008 Order at 8. 27 The magistrate judge further ordered that Mr. Cate's deposition be conducted on 28 September 12, 2008, at 10:00 AM. Id.

1

Defendants move for reconsideration and request a stay of the magistrate judge's

2 order. The Court now DENIES Defendants' motion for the reasons discussed below. 3 4 I. 5 Legal Standard Federal Rule of Civil Procedure 72(a) provides that non-dispositive pretrial matters

6 may be decided by a magistrate judge, subject to reconsideration by the district judge. The 7 district judge shall, upon reconsideration, modify or set aside any part of the magistrate 8 judge's order which is "found to be clearly erroneous or contrary to law." Fed. R. Civ. P. 9 72(a); see also 28 U.S.C. § 636 (b)(1)(A). 10 Discovery motions regarding depositions are non-dispositive pretrial motions within

11 the scope of Rule 72(a) and 28 U.S.C. § 636(b)(1)(A), and thus subject to the "clearly 12 erroneous or contrary to law" standard of review. Rockwell Int'l, Inc. v. Pos-A-Traction 13 Indus., Inc., 712 F.2d 1324, 1325 (9th Cir. 1983). "A finding is `clearly erroneous' when 14 although there is evidence to support it, the reviewing court on the entire evidence is left with 15 the definite and firm conviction that a mistake has been committed." United States v. U. S. 16 Gypsum Co., 333 U.S. 364, 395 (1948). 17 18 II. 19 Analysis Having carefully reviewed the record in this case, the Court concludes that the

20 magistrate judge did not clearly err in ruling that: 21 22 23 24 25 The record fails to support Secretary Cate's sweeping assertion of the deliberative process privilege at the start of his deposition. Specifically, there is no suggestion in the record that his assertion of the privilege was limited to `predecisional' and `deliberative' communications about governmental decisions or policies, which are the only type of communications to which the privilege may apply. Nor is there evidence of whether the confidentiality of those communications has been maintained.

26 Sept. 10, 2008 Order at 5. 27 Additionally, Defendants erroneously rely on Franklin Savings Association v. Ryan,

28 922 F.2d 209 (4th Cir. 1991), for the proposition that Plaintiffs must make a "strong showing 2

1 of bad faith or improper behavior" before they are permitted to inquire as to Mr. Cate's 2 "mental processes." Franklin, 922 F.2d at 212 (quoting Feller v. Bd. of Educ., 583 F. Supp. 3 1526, 1528 (D. Conn. 1984)) (emphasis in Franklin). In Franklin, the plaintiffs sought to 4 challenge the decision of an administrative agency by impugning the process that led to that 5 decision. Here, we face a far different circumstance. Plaintiffs seek not to challenge the 6 manner in which an administrative agency reached its decision, but to discover what 7 positions Defendants will take at trial and what support they may offer for those positions. In 8 this circumstance, no showing of bad faith or improper behavior is required. 9 Consequently, the magistrate judge's conclusion that Defendants failed to support

10 their blanket assertion of the deliberative process privilege during the deposition of Mr. Cate 11 is not clearly erroneous. While it remains possible that the deliberative process privilege 12 may be properly invoked in response to certain questions, the record does not contain any 13 basis for Defendants' blanket assertion. 14 15 III. 16 Conclusion In light of the above discussion, IT IS HEREBY ORDERED that Defendants' motion

17 for reconsideration of the magistrate judge's September 10, 2008 order regarding the 18 deposition of Matthew Cate is DENIED. The deposition shall proceed as ordered on 19 September 12, 2008, at 10:00 AM. 20 Defendants shall not be permitted to invoke the deliberative process privilege to

21 refuse to answer all questions concerning Mr. Cate's communications with the Governor or 22 the Governor's aides. If Defendants seek to assert the deliberative process privilege as to any 23 particular question, they must lay a specific foundation on the record. If necessary, the 24 parties may then seek the further assistance of the magistrate judge, who will then have a 25 more adequate basis for considering whether the deliberative process privilege applies to 26 particular questions, including whether Plaintiffs' "need for the [information] and the need 27 for accurate fact-finding override the government's interest in non-disclosure." F.T.C. v. 28 // 3

1 Warner Commc'ns. Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). The magistrate judge shall 2 resolve any further disputes as early as practicable. 3 4 IT IS SO ORDERED. 5 6 Dated: 09/11/08 7 8 9 10 Dated: 09/11/08 11 12 13 14 Dated: 09/11/08 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 THELTON E. HENDERSON SENIOR UNITED STATES DISTRICT JUDGE NORTHERN DISTRICT OF CALIFORNIA LAWRENCE K. KARLTON SENIOR UNITED STATES DISTRICT JUDGE EASTERN DISTRICT OF CALIFORNIA /s/ STEPHEN REINHARDT UNITED STATES CIRCUIT JUDGE NINTH CIRCUIT COURT OF APPEALS