Center for Environmental Health et al v. Perdue et al

Filing 110

Discovery Order re 106 Discovery Order; 109 MOTION for Reconsideration of ECF No. 105 filed by Bruce Summers, Sonny Perdue, United States Department of Agriculture. Signed by Judge Thomas S. Hixson on 3/23/2020. (cdnS, COURT STAFF) (Filed on 3/23/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CENTER FOR ENVIRONMENTAL
HEALTH, et al.,
Plaintiffs,

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v.

DISCOVERY ORDER
Re: Dkt. Nos. 106, 109

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Case No. 18-cv-01763-RS (TSH)

SONNY PERDUE, et al.,

United States District Court
Northern District of California

Defendants.
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This is another follow-on order from the Court’s November 18, 2019 order concerning the

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deliberative process privilege. ECF No. 97.

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A.

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Plaintiffs’ Documents
Document 1. This is a draft form dated September 2014, several years before OLPP was

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promulgated. The Court previously stated that it had a hard time understanding how this

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document was deliberative. The description of this document in the prior version of the privilege

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log was “Form reflecting certain legal analysis of a draft Options Rule.” The new description is

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“Form reflecting preliminary analysis of requirements for Withdrawal Rule pursuant to the

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Congressional Review Act. All info in this document can be found in the final, dated, and signed

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version, which has been provided to Plaintiff and will be added to the AR.” The first sentence in

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the description is the justification for why this document falls within the deliberative process

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privilege, and the second explains why, if the document is privileged, the Warner factors do not

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overcome the privilege. However, the first sentence is inadequate. It conveys no useful

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information. The Court does not see how producing this document could expose internal agency

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deliberations. And the second sentence suggests it won’t. Defendants’ objection to producing this

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document is OVERRULED. They shall produce it within seven days.

Document 7. As the Court previously indicated, it’s hard to see just by looking at this

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document how it is deliberative. The amended privilege log description does nothing to explain

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that either. Defendants’ objection to producing this document is OVERRULED. They shall

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produce it within seven days.

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B.

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Defendants’ Documents
We’re here on a motion for reconsideration as to Document 8. The Court previously

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found this document to be predecisional and deliberative. The question was whether the Warner

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factors overcame the qualified privilege. The previous iteration of the privilege log said that all

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information in this document was in OLPP_00001738, and because that wasn’t true the Court
overruled the objection. Defendants now move for reconsideration, saying they made a mistake

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United States District Court
Northern District of California

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on the privilege log, and they meant to say that the information was in OLPP_00003679-80, which

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they have provided to the Court. And it’s true, the information is there.

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Still, the Court is unhappy about this motion for reconsideration. You see, Defendants’

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privilege log has more than 1,000 entries on it. Each side picked 15 examples for the Court to

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review. The Court reviewed those examples and gave general guidance on how Defendants’

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privilege log should be revised globally. For the 30 examples, where the Court said that the

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privilege log was insufficient to enable application of the Warner factors because, among other

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reasons, the Court did not know if the factual information in the documents was available to the

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Plaintiffs elsewhere in the record, the Court is now confirming whether it is. But the Court is only

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doing that for these examples. For the other 1,000+ entries, there may be many whose amended

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descriptions also state that the information can be found in a certain place in the record, but all

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Plaintiffs have to go on is that representation. No one else is double checking Defendants’ work.

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For Defendants to have made a mistake in the tiny handful of examples they knew the Court was

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going to review does not augur well for the much larger number they know the Court is not

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reviewing.

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Accordingly, Defendants’ motion for reconsideration is GRANTED and their privilege

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objection to document 8 is SUSTAINED. In addition, the Court ORDERS Defendants to double

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check every privilege log entry where they said information could be found somewhere else in the
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record and correct any mistakes within 30 days.
IT IS SO ORDERED.

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Dated: March 23, 2020

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THOMAS S. HIXSON
United States Magistrate Judge

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United States District Court
Northern District of California

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