Plata et al v. Schwarzenegger et al

Filing 1515

ORDER by Judges Stephen Reinhardt, Lawrence K. Karlton, and Thelton E. Henderson denying 1441 Defendants' Motion for Reconsideration of the magistrate judge's August 29, 2008 order. (tehlc3, COURT STAFF) (Filed on 9/25/2008)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Pending before the court is defendants' motion for reconsideration of or, alternatively, v. ARNOLD SCHWARZENEGGER, et al., Defendants. v. ARNOLD SCHWARZENEGGER, et al., Defendants. MARCIANO PLATA, et al., Plaintiffs, NO. C01-1351 TEH THREE-JUDGE COURT ORDER DENYING DEFENDANTS' MOTION FOR RECONSIDERATION OF THE MAGISTRATE JUDGE'S AUGUST 29, 2008 ORDER 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 23 to stay the magistrate judge's August 29, 2008 order compelling the production of documents 24 for which the defendants had asserted the deliberative process or attorney-client privileges. 25 For the reasons stated herein, the court DENIES the motion. 26 // 27 // 28 // 1 I. 2 Background and Procedural History1 The discovery dispute at issue here originated with a request for production of 3 documents, served by plaintiffs on September 5, 2007. Defendants responded on October 25, 4 2007, asserting various privileges in response to several of the requests. The magistrate 5 judge ordered many of these documents produced and this court twice denied defendants' 6 motions for reconsideration of these orders. See Order, June 17, 2008; Order, July 8, 2008. 7 During that time and since, defendants have been producing documents and privilege 8 logs on a rolling basis, in response to plaintiffs' September 2007 request. The instant motion 9 concerns privileges defendants asserted in their June 10, 2008 and August 5, 2008 privilege 10 logs. 11 On August 12, 2008, plaintiffs moved the magistrate judge to sanction defendants for 12 failing to produce documents that were not privileged. After reviewing the privilege logs and 13 many of the documents in camera, the magistrate judge granted the motion. He ordered 14 defendants to produce seven documents listed in the June 10, 2008 log and five documents in 15 the August 5, 2008 log for which the attorney-client privilege had been asserted, and 313 16 documents listed in the August 5, 2008 log for which the deliberative process privilege had 17 been asserted. The magistrate judge also awarded plaintiffs expenses incurred in bringing 18 their motion. It is that order of which defendants now seek reconsideration 19 20 II. 21 Standard Federal Rule of Civil Procedure 72(a) provides that non-dispositive pretrial matters 22 may be decided by a magistrate judge, subject to reconsideration by the district judge. The 23 district judge shall, upon reconsideration, modify or set aside any part of the magistrate 24 judge's order which is "found to be clearly erroneous or contrary to law." Fed. R. Civ. P. 25 72(a); see also 28 U.S.C. 636 (b)(1)(A). 26 27 Much of the facts described herein derive from the magistrate judge's August 29, 28 2008 order. 2 1 1 Discovery motions are non-dispositive pretrial motions within the scope of Rule 72(a) 2 and 28 U.S.C. 636(b)(1)(A), and thus subject to the "clearly erroneous or contrary to law" 3 standard of review. Rockwell Int'l, Inc. v. Pos-A-Traction Industries, Inc., 712 F.2d 1324, 4 1325 (9th Cir. 1983) (per curiam). "A finding is `clearly erroneous' when although there is 5 evidence to support it, the reviewing court on the entire evidence is left with the definite and 6 firm conviction that a mistake has been committed." United States v. U. S. Gypsum Co., 333 7 U.S. 364, 395 (1948); Anti-Monopoly, Inc. v. General Mills Fun Group, Inc., 684 F.2d 1316, 8 1318 (9th Cir. 1982). 9 10 III. 11 Analysis Defendants move the court to reconsider 120 documents for which the deliberative 12 process had been asserted and the twelve documents for which the attorney-client privilege 13 had been asserted. Defendants contend that the magistrate judge "impose[d] unworkable, 14 impractical, and improper standards" for the deliberative process privilege and erred in 15 concluding that the attorney-client privilege did not apply to the documents for which it was 16 asserted. Mot. at 1. Defendants also contend that an award of costs to plaintiffs was not 17 merited and that the court should issue a stay. The court considers each of these arguments 18 in turn. 19 20 A. 21 Deliberative Process Privilege As explained in a previous order, the magistrate judge has employed the correct 22 standard in evaluating defendants' assertion of the deliberative process privilege. See Order, 23 July 8, 2008. The deliberative process privilege protects from disclosure "documents 24 reflecting advisory opinions, recommendations and deliberations comprising part of a 25 process by which governmental decisions and policies are formulated." Dep't of Interior v. 26 Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001). A document is protected under 27 the privilege if it is both "predecisional" and "deliberative." F.T.C. v. Warner Commc'n, 28 Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). A document is predecisional if it was "prepared in 3 1 order to assist an agency decisionmaker in arriving at his decision" and it is deliberative if 2 "the disclosure of [the] materials would expose an agency's decisionmaking process in such 3 a way as to discourage candid discussion within the agency and thereby undermine the 4 agency's ability to perform its functions." Assembly of State of Cal. v. United States Dep't of 5 Commerce, 968 F.2d 916, 920 (9th Cir. 1992). 6 The party that asserts the deliberative process privilege must explain why a document 7 is privileged, providing enough information to enable the opposing party and court to 8 evaluate the appropriateness of withholding the documents. Wiener v. F.B.I., 943 F.2d 972 9 (9th Cir. 1991). Where there is a large volume of documents at issue, the explanation offered 10 may in some circumstances be less detailed than it would be otherwise. See Fed. R. Civ. P. 11 26 advisory committee's note (1993); Burlington N. & Santa Fe Railway Co. v. U.S. District 12 Court for the Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005). Nevertheless, the party 13 asserting the privilege must always provide enough information to permit the court to 14 determine the applicability of the privilege to the documents at issue. Fed. R. Civ. P. 26 15 advisory committee's note (1993); Burlington N., 408 F.3d at 1147 & n. 2 (citations omitted). 16 Here, the magistrate judge did not clearly err or act contrary to law in concluding that 17 the defendants' August 5, 2008 privilege log and accompanying declaration were inadequate 18 to support defendants' assertion of the deliberative process privilege for the 120 documents 19 at issue.2 The privilege logs exhibit the same deficiencies the court noted in its review of the 20 February 15, 2008 log. See Order, July 8, 2008, at 6-7. The logs describe each document by 21 date, general type (e.g., "report," "memorandum," or "document"), author, recipient, and 22 description. See Declaration of Maria V. Morris In Support of Plaintiff's Motion for 23 Discovery Sanctions ("Morris Decl."), Ex. I. Many of the document descriptions are short 24 and vague, so as to provide the reader with minimal information with which to evaluate the 25 These are documents identified in the August 5, 2008 privilege log at rows 2, 3, 5, 42, 93, 97-102, 110-113, 119, 122, 124, 126-128, 130, 131, 134, 136, 138, 140, 141, 144, 26 146, 148, 150, 153, 154, 157, 158, 161, 163, 165, 166, 168, 169, 177-185, 216, 217, 229-232, 235, 237-239, 241-243, 246-247, 251-259, 272, 276, 277, 279, 280-285, 287, 289, 290, 292, 27 294, 296, 302, 306-308, 312-314, 317-319, 323, 325, 341-343, 348, 351-353, 359, 373, 374, 382, 394-397, and 401. See Declaration of Maria V. Morris In Support of Plaintiff's Motion 28 for Discovery Sanctions, Ex. I-L. 4 2 1 claim of privilege. See, e.g., id. at rows 126-31, 134, 136, 138, 140-41, 144, 146, 148, 150, 2 153-54, 157-58, 161, 163, 165 (documents described as "concerning CDCR proposals for the 3 upcoming week for agency review and consideration); row 169 (document described as 4 "briefing document concerning prisons for agency review and consideration"). 5 Defendants attempted to remedy this deficiency with declarations that describe the 6 documents with more detail and in general categories. See Morris Decl., Ex. J-L. The 7 magistrate judge found, however, that the declarations provided inadequate support for 8 defendants' assertion that the confidentiality of each document had been preserved. Each 9 declarant stated that the documents referenced in the declaration had been "maintained as 10 privileged and confidential." Morris Decl. Ex. J (Supplemental Declaration of Robert Gore 11 In Support of Privilege Log of August 5, 2008, 6-9); Ex. K (Supplemental Declaration of 12 Ana Matosantos In Support of Privilege Log of August 5, 2008, 7-9); Ex. L (Supplemental 13 Declaration of David Runnels In Support of Privilege Log of August 5, 2008, 5-7). 14 Although it may be unworkable to require the defendants to detail extensively how 15 confidentiality was maintained for each document, there is certainly ample support in this 16 circuit for the magistrate judge's conclusion that because the declarants' assertions were 17 conclusory and were not supported by any facts, those assertions were insufficient to 18 establish confidentiality. See, e.g., In re. Grand Jury Investigation, 974 F.2d 1068, 1071 (9th 19 Cir. 1992); Dole v. Milonas, 889 F.2d 885, 890 (9th Cir. 1989). The magistrate judge did not 20 clearly err or act contrary to law in this ruling. 21 Finally, the magistrate judge did not err in his conclusion that defendants' assertion of 22 the deliberative process privilege was not supported by an in camera review of the 313 23 documents for which it was raised. Defendants do not address this aspect of the magistrate 24 judge's ruling, but appear to suggest that a different result might be reached were the court to 25 consider only the 120 documents for which they seek reconsideration. The magistrate 26 judge's method of considering the assertion of privilege by reviewing a randomly-drawn 27 sample of the documents is an appropriate one that has been approved by the Ninth Circuit. 28 Doyle v. F.B.I., 722 F.2d 554 (9th Cir. 1983) (citing Stephenson v. I.R.S., 629 F.2d 1140, 5 1 1144-46 (5th Cir. 1980); see also N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 2 (1978) (holding, in the FOIA context, that although the court has discretion to review in 3 camera documents for which a privilege is asserted, "it . . . does not mandate that the 4 documents be individually examined"). Although the defendants might believe the 5 magistrate judge would have reached a different conclusion had it drawn a different sample 6 of documents, that does not persuade us that the magistrate judge acted clearly erroneously or 7 contrary to law in holding that defendants had not met their burden. 8 9 B. 10 Attorney-Client Privilege The defendants also seek reconsideration of the magistrate judge's order that 11 defendants must produce twelve documents for which the attorney-client privilege had been 12 asserted. These are documents E00100148, E00100274, E00100275, E00100276, 13 E00100315, E00100316 and E00100346 from the defendants' June 10, 2008 privilege log 14 and documents in rows 4, 171, and 364-366 from the August 5, 2008 privilege log. The 15 magistrate judge reviewed the relevant entries in the privilege logs and read in camera all 16 twelve documents. See Order, August 29, 2008, at 4-5, 7. The court concluded that 17 defendants had failed to establish that the attorney-client privilege applied to the documents. 18 Id. at 5, 7. 19 As the court has explained previously, the magistrate judge's ruling does not merit 20 reversal simply because it fails to extensively detail its reasoning. See Order, June 17, 2008. 21 Instead, reversal is only warranted when "the reviewing court on the entire evidence is left 22 with the definite and firm conviction that a mistake has been committed." U. S. Gypsum Co., 23 333 U.S. at 395. A review of the privilege logs and supporting declarations alone causes the 24 court to conclude that the magistrate judge's determination was proper. 25 The attorney-client privilege attaches "(1) [w]here legal advice of any kind is sought 26 (2) from a professional legal adviser in his capacity as such, (3) the communications relating 27 to that purpose, (4) made in confidence (5) by the client, (6) are at this instance permanently 28 protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be 6 1 waived." Admiral Ins. v. United States Dist. Ct. for Dist. of Ariz., 881 F.2d 1486, 1492 (9th 2 Cir. 1989). The privilege logs and the supporting declarations3 do not provide adequate 3 information to permit a court to conclude that this standard was met for each document. The 4 log entries for most of the documents do not indicate that the communication was made for 5 the purpose of seeking legal advice. This includes documents E00100148, E00100274, 6 E00100275, E00100276, E00100315 and E00100316 of the June 10, 2008 logs and 7 documents 4 and 171 of the August 5, 2008 log. The declarations supporting the August 5, 8 2008 log do not address this. See Morris Decl. Ex. J-L. Additionally, it appears that the 9 recipient of documents 364-366 of the August 5, 2008 log is not an attorney and therefore the 10 privilege, as asserted for these documents, fails. See Morris Decl. 12. Finally, there is no 11 indication from the June 10, 2008 log that any of the documents at issue have been kept 12 confidential. Taken together, these deficiencies demonstrate that the magistrate judge did not 13 clearly err or act contrary to law in ruling that these twelve documents must be disclosed. 14 15 C. 16 Award of Discovery Expenses Defendants also contend that the magistrate judge acted clearly erroneously or 17 contrary to law in awarding discovery expenses to the plaintiffs. The court does not agree. 18 As the magistrate judge explained, Federal Rule of Civil Procedure 37(a)(5) allows 19 expenses to be awarded to a successful movant, so long as the movant acted in good faith to 20 obtain the disclosure without court action, the opposing party's nondisclosure was not 21 substantially justified, and the award of expenses would be just. Here, there was evidence to 22 support the conclusion that plaintiffs attempted in good faith to seek the disclosures at issue 23 prior to filing their motion for sanctions. Morris Decl. 5-17. There is also evidence to 24 support the magistrate judge's determination that defendants were not substantially justified 25 in their non-disclosure of the documents at issue. As explained above, the defendants failed 26 to offer adequate detail in their June 10, 2008 and August 8, 2008 logs to permit the court to 27 3 It appears that there were no declarations submitted in support of the June 10, 2008 28 privilege log. See Morris Decl. 3, 8. 7 1 assess the privilege claim. This is the same deficiency that the court has observed with 2 regard to defendants' earlier assertions of privilege.4 See Order, June 17, 2008 at 6; Order, 3 July 8, 2008 at 6-7. The magistrate judge's award of expenses was not improper. 4 5 D. 6 Motion to Stay Finally, although the defendants titled their motion a motion for reconsideration or, 7 alternatively, a stay of the magistrate judge's order, they did not address the factors guiding 8 the court in determining whether a stay is proper nor made any showing in this regard. A 9 district court has discretion to stay its order, pending appeal, upon consideration of, "(1) 10 whether the stay applicant has made a strong showing that he is likely to succeed on the 11 merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether 12 issuance of the stay will substantially injure the other parties interested in the proceeding; 13 and (4) where the public interest lies." Hilton v. Braunskill, 481 U.S. 770, 776 (1987). Here, 14 at a minimum, defendants have not made a strong showing that they would succeed on the 15 merits of a review of the magistrate judge's order. See Golden Gate Restaurant Ass'n. v. 16 City and County of San Francisco, 512 F.3d 1112, 1115-16 (9th Cir. 2008). The motion to 17 stay is denied. 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 4 Defendants' citation to Scott Paper Co. v. Ceilcote Co., 103 F.R.D. 591, 598 (D. Me. 27 1984) is unpersuasive because in that case the circuit had no definitive rule for showing that the work product privilege applied. Here, the rules of the Ninth Circuit are clear as to the 28 deliberative process issue and have been described to the defendants in several prior orders. 8 1 IV. 2 Conclusion For the reasons stated herein, defendants' request for reconsideration of the magistrate 3 judge's August 29, 2008 ruling or, alternatively, request for a stay of that order is DENIED. 4 5 IT IS SO ORDERED. 6 7 Dated: 09/25/08 8 9 10 11 Dated: 09/25/08 12 13 14 15 Dated: 09/25/08 16 17 18 19 20 21 22 23 24 25 26 27 28 9 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

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