Davis v. Barnhart et al

Filing 323

ORDER re Discovery Dispute [209 in 3:09-cv-00980-EMC], [219 in 3:09-cv-00980-EMC]. Signed by Judge Nathanael M. Cousins on 03/15/12. (nclc2, COURT STAFF) (Filed on 3/15/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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TERRENCE DAVIS,

Case No. 06-cv-06108 EMC (NC)

Plaintiff,
v.

ORDER RE: DISCOVERY
DISPUTE

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MICHAEL J. ASTRUE, Commissioner
of the Social Security Administration,

Re: Dkt. Nos. 299, 309

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Defendant.
_____________________________________

Related Case: No. 09-cv-00980 EMC
(NC)

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JOHN DOE,

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Plainitff,

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v.

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MICHAEL J. ASTRUE, Commissioner
of the Social Security Administration,
Defendant.

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At issue is defendant SSA’s privilege log addressing 271 entries disputed by

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Plaintiffs. SSA withholds these documents based on the deliberative process privilege,

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the attorney-client privilege, or the attorney work product doctrine. Brief ISO Priv. Log,

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Dkt. No. 299, Exh. 1. Plaintiffs dispute application of the asserted privileges and request

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production of all documents identified in SSA’s privilege log. Opp’n, Dkt. No. 309.

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Alternatively, plaintiffs assert that their need for the documents overcomes the qualified

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deliberative process privilege. Id.
Case No. 06-cv-06108 EMC (NC)
ORDER RE: DISCOVERY DISPUTE

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In consideration of the representations made by the parties in their briefs and at
hearing, the Court finds as follows:
(1) SSA has met its burden as to the deliberative process privilege by

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demonstrating that documents identified in its March 12, 2012 revised privilege log are

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pre-decisional and deliberative.

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(2) Plaintiffs have not overcome this qualified privilege and are, therefore, not

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entitled to these documents. See FTC v. Warner Commc’ns, Inc., 742 F.2d 1156, 1161

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(9th Cir. 1984).

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(3) SSA has also met its burden as to documents withheld under the attorney-

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client privilege and work product doctrines with two exceptions. First, plaintiffs asserted

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during hearing that they no longer seek documents related to privilege log entries Nos. 32,

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36, 65, 103, and 241. Second, the Court finds disputed log entry No. 4 (e-mail from SSA

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to third party Marty Ford) falls outside the scope of the deliberative process privilege and

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is not protected attorney work product. As to this document only, SSA is to make any

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additional privilege assertions no later than Friday, March 16, 2012. The Court will

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consider any further disputes about log entry No. 4 on shortened time.

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IT IS SO ORDERED.
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DATED: March 15, 2012

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___________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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Case No. 06-cv-06108 EMC (NC)
ORDER RE: DISCOVERY DISPUTE

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