Vietnam Veterans of America et al v. Central Intelligence Agency et al

Filing 327

ORDER RE: DEFENDANT DEPARTMENT OF VETERANS AFFAIRS IN CAMERA SUBMISSION OF DOCUMENTS. Signed by Magistrate Judge Jacqueline Scott Corley on 11/23/2011. (ahm, COURT STAFF) (Filed on 11/23/2011)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9
10

Northern District of California

United States District Court

11
12

VIETNAM VETERANS OF AMERICA,

13

et al.,

ORDER RE: DEFENDANT
DEPARTMENT OF VETERANS
AFFAIRS IN CAMERA
SUBMISSION OF DOCUMENTS

Plaintiffs,

14

Case No.: 09-cv-0037 CW (JSC)

v.

15
16

CENTRAL INTELLIENCE AGENCY, et

17

al.,

18

Defendants.

19
20

Defendant Department of Veterans Affairs (“DVA” or “Defendant”) submitted

21

documents for review in camera per the Court’s October 5, 2011 order. The Court

22

subsequently ordered Defendant to provide further information and Defendant did so on

23

November 10, 2011. The Court has reviewed Defendant’s in camera submission and hereby

24

orders Defendant to produce certain documents to Plaintiffs as outlined below.

25

DISCUSSION

26

In response to Plaintiffs’ discovery requests, Defendant asserted the deliberative

27
28

process privilege over 483 documents. Of these, Defendant indicated that 44 documents

1

were covered by other claims of privilege as well. Defendant indicated that the documents

2

fell within the following subject areas:

3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13

(1) documents concerning the adjudication of an individual plaintiff’s claim for VA
disability compensation;
(2) documents concerning VA Executive correspondence with members of Congress,
Veterans Service Organizations, and other federal government agencies;
(3) documents concerning collaboration between DOD and VA regarding providing
notice to test subjects;
(4) documents concerning the content of VA’s notice letter within the Veterans
Health Administration;
(5) documents concerning DOD’s “Fact Sheet” regarding VA health care and
examinations;
(6) documents concerning legislative proposals, including draft legislative proposals
and analyses of those proposals;

14
15

(7) emails and memoranda discussing drafts of the Under Secretary for Health’s
Information Letter;

16
17
18
19
20
21
22
23

(8) documents concerning the Veterans Benefits Administration, including draft
training letters, outreach reports and meeting summaries, emails regarding
outreach efforts, drafts of the notification letter to test volunteers, and emails
regarding the development of those notification letters; and
(9) documents concerning the Veterans Health Administration (“VHA”), including
emails regarding a potential response to congressional inquiry about Edgewood
Arsenal and emails discussing the possibility of future registries within VHA.
(Dkt. No. 276, 8:12-9:9).
As discussed in detail in this Court’s October 5, 2011 order (Dkt. No. 294), the

24

deliberative process privilege is a qualified privilege that “permits the government to

25

withhold documents that reflect advisory opinions, recommendations, and deliberations

26

comprising part of a process by which governmental decisions and polices are formulated.”

27

Hongsermeier v. Commissioner of Internal Revenue, 621 F.3d 890, 904 (9th Cir. 2010)

28

(internal citations omitted). The deliberative process privilege may be overcome by a strong
2

1

showing of relevance and an inability to obtain the information from other sources. See

2

Schwarzer, Tashima & Wagstaffe, Fed. Civ. P. Before Trial § 11:767 (TRG 2010) (citing

3

Sanchez v. City of Santa Ana, 936 F.2d 1027, 1034 (9th Cir. 1990)). Courts consider the

4

following factors in determining substantial need: 1) the relevance of the evidence, 2) the

5

availability of other evidence, 3) the government’s role in the litigation, and 4) the extent to

6

which disclosure would hinder frank and independent discussion regarding contemplated

7

policies and decisions. See F.T.C. v. Warner Comms. Inc., 742 F.2d 1156, 1161 (9th Cir.

8

1984).
The Court analyzed these factors in detail in its October 5, 2011 order, and found that

9

an in camera review of documents in categories two-nine was the only way to determine

11
United States District Court
Northern District of California

10

whether the deliberative process privilege actually applied, and if so, whether Plaintiffs had

12

demonstrated substantial need sufficient to overcome the privilege. The Court has

13

conducted a detailed review of Defendant’s voluminous in camera production and concludes

14

that with respect to some of the documents at issue the deliberative process privilege does

15

not apply, and in some cases where it does apply, sufficient substantial need exists to justify

16

disclosure of the documents.1
With respect to documents to which no privilege applies, the Court notes that the

17
18

deliberative process privilege only applies to deliberative materials; that is, documents that

19

reflect advisory opinions, recommendations and deliberations comprising the government

20

agency’s decision-making process. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150

21

(1975). In contrast, “[p]urely factual material that does not reflect deliberative processes is

22

not protected.” F.T.C. v. Warner Communications Inc., 742 F.2d at 1161 (internal citations

23

omitted). Accordingly, to the extent that Defendant has asserted the deliberative process

24

privilege over documents that only reflect factual information, the Court finds that the

25

deliberative process privilege does not apply to these documents.

26
27
28

1

This Order only addresses those documents which fall within these two categories;
Defendant properly asserted the deliberative process privilege over those documents not
specifically referenced in this Order.
3

1

As for the documents which are covered by the deliberative process privilege, the

2

Court finds that in some cases Plaintiffs’ substantial need for the documents overcomes the

3

qualified deliberative process privilege. The Court has reviewed the documents and finds

4

that some of the documents provide information which is extremely relevant to Plaintiffs’

5

facial bias claim against DVA and their notice claim against the other Defendants, and

6

because this information cannot be obtained from another source Plaintiffs’ substantial need

7

for the documents overrides the government’s interest in non-disclosure.

8

Category Two Documents

9

Defendant shall produce the following documents:
o 1702

11
United States District Court
Northern District of California

10

o 1791-1792

12

o 3419 without redactions

13

Defendant should also confirm that document 280-281 was previously produced to

14

Plaintiffs. If not, Defendant shall produce this document.

15

Category Three Documents

16

Defendant shall produce the following documents:

17

o 233-277

18

o 1852-1853 (duplicate of 1426-1427)

19

o 1332

20

o 176-177

21

o 1757

22

For several documents in this category that were marked “draft,” Defendant has

23

indicated that no final version of the documents exists. The Court finds that to the extent

24

these documents are deliberative, upon the Court’s review, substantial need exists for the

25

documents’ disclosure. Accordingly, Defendant shall produce the following documents:

26

o 165-166

27

o 335-370

28

4

1

Defendant has indicated that document 1100-1101 is protected by deliberative process

2

and attorney work product privileges and that the document was produced to Plaintiffs in a

3

redacted form. It is not clear how the attorney work product privilege applies to this email.

4

Defendant shall clarify how the privilege applies – is Mark Brown an attorney? If the

5

privilege was asserted in error, Defendant shall produce the document without redactions.

6

Category Four and Five Documents

7

Defendant shall produce the following documents:

8

o 1047-1048

9

o 1446-1447

10

Category Six and Seven

United States District Court
Northern District of California

11

Category Six documents contain various forms of legislative proposals, only some of

12

which relate to the issues in this lawsuit. Of those which do relate to the issues in this

13

lawsuit, the Court finds that the documents are extremely relevant to Plaintiffs’ claims and

14

that there is no other source of this information because Defendant has indicated that “there

15

is no final version of any VA draft legislative proposal because either VA managers or the

16

Office of Management and Budget did not approve VA submission of the draft legislation.”

17

See November 9, 2011 letter from Lily Farel counsel for Defendant DVA. Accordingly,

18

Defendant shall produce the following documents:

19

o 984-986

20

o 1482-1484

21

o 1536-1538

22

o 2617-2619

23

o 2625-2626

24

o 3452-3454

25

o 4123-4125

26

o 4139-4146

27

o 4168-4170

28

o 4188-4196

5

1

Defendant has asserted deliberative process and Privacy Act privileges over the

2

following document and produced the document with portions redacted. Defendant shall

3

produce the document without redactions. If Defendant has privacy concerns, it may

4

produce the document pursuant to the protective order governing this action. (Dkt. No. 176).

5
6
7

o 3138-3140
Category Eight
Defendant shall produce the following documents:
o 3420

9

o 3455-3456

10

o 3596-3599

11
United States District Court
Northern District of California

8

o 4450-4451, if not already produced to Plaintiffs

12

o 3765-3767

13

o 1426-1427 (duplicate of 1852-1853)

14

o 3665

15

o 1848

16

o 4115-4116

17

o 4440

18

As with the Category Six draft legislative proposals, Defendant indicates that there

19

are no final versions for the following draft documents. For the same reasons as stated for

20

the Category Six documents, the Court orders Defendant to produce these documents:

21

o 207

22

o 1133-1138

23

o 1139-1146

24

o 1736-1743

25

Defendant has asserted deliberative process and Privacy Act privileges over the

26

following document and produced the document with portions redacted. Defendant shall

27

produce the document without redactions. Given that the information in the email originated

28

from a reporter, the Court questions Defendant’s Privacy Act claim, but to the extent

6

1

Defendant has privacy concerns, it may produce the document pursuant to the protective

2

order governing this action. (Dkt. No. 176).

3
4

o 4479-4482
The privilege log indicates that document 3667 was produced with redactions based

5

on Privacy Act objections; however, the version produced to the Court does not contain any

6

notations regarding which text was redacted. Defendant shall produce the document without

7

redactions; any privacy concerns may be addressed by producing the document pursuant to

8

the protective order governing this action. (Dkt. No. 176).

9

Category Nine

10

Defendant shall produce the following documents:

United States District Court
Northern District of California

11

o 2944 without redactions

12

o 3553-3554

13

Defendant has produced the same document twice, see 2983-2987 and 3466-3470.

14

With respect to the first version of this document (2983-2987), Defendant asserts

15

deliberative process privilege. For the second version (3466-3470) Defendant indicates that

16

deliberative process, attorney client and attorney work product privileges all apply and the

17

privilege log indicates that David Barrans, VA Deputy Assistant General Counsel, is a

18

recipient of the email; however, Mr. Barrans’ name does not appear on the email. Defendant

19

shall clarify the nature of the privilege(s) it is asserting over this document. If Defendant

20

asserts attorney work product and/or attorney client privilege, Defendant shall identify the

21

attorney on the email chain. If Defendant only asserts deliberative process privilege,

22

Defendant shall produce the document.

23

Document 4332-4333 is a recent forward of the email chain also marked 3138-3140

24

and discussed under Category Six above. For the reasons previously stated, Defendant shall

25

produce 4332-4333 as well.

26
27
28

CONCLUSION
As set forth above, the Court finds that certain documents over which Defendant has
asserted deliberative process privilege are either not deliberative, and thus, not entitled to any

7

1

protection, or that the qualified deliberative process privilege is overcome by Plaintiffs’

2

substantial need for the documents. Accordingly, Defendant shall produce the documents

3

identified above by December 1, 2011. To the extent necessary, for the two documents over

4

which Defendant has also asserted attorney client and/or attorney work product privilege,

5

and about which the Court seeks further information, Defendant shall file its response by the

6

same deadline.

7
8

IT IS SO ORDERED.
Dated: November 23, 2011

9

_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

8