Leadholm v. City of Commerce City, The et al
ORDER ON MOTION FOR PROTECTIVE ORDER granting in part and denying in part 99 Motion for Protective Order by Magistrate Judge Michael E. Hegarty on 09/01/2017. At this time, the City will produce copies of the withheld documents only to the Court for in camera review on or before 9/11/2017 and, at the same time, will file a Notice of Submission on the public docket of this case. The document production may be in hard-copy or electronic format. Once the Court completes its review of the withheld documents, it will issue an order establishing whether any or all of the documents are protected by the deliberative process privilege as set forth herein. (mdave, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02786-MEH
CITY OF COMMERCE CITY, COLORADO,
JEREMY JENKINS, and
ORDER ON MOTION FOR PROTECTIVE ORDER
Michael E. Hegarty, United States Magistrate Judge.
The Court has set forth the background and facts of this case in previous orders and, thus,
need not repeat all of them here. However, pertinent to the present matter, the Plaintiff has alleged
Defendant City of Commerce City’s use of force policy is “inadequate” as “evidenced by a letter
. . . written to Director Ronald Davis of the Department of Justice [“DOJ”].” Am. Compl. ¶ 25. The
letter, dated July 18, 2016 and executed by Commerce City’s mayor, city manager, and interim chief
of police, sought “assistance from the Department of Justice’s Community Oriented Policing
Division’s Technical Assistance Program for Collaborative Reform.” ECF No. 43-2. Plaintiff
alleges that the “Justice Department’s office of Community Oriented Police Services agreed to take
on the review.” Am. Compl. ¶ 26.
In light of the letter and Plaintiff’s allegations, Plaintiff sought through discovery “all
underlying ‘reasons,’ materials, and communications relating to the DOJ collaborative audit, and
identification of all Department and DOJ personnel involved in any way in the audit.” Mot. 3.
Here, Defendants seek protection from producing such information pursuant to the deliberative
process privilege; Plaintiff counters that the privilege does not apply. The Court finds that it must
review the withheld documents in camera to determine whether they are protected by the
deliberative process privilege and, thus, the motion will be granted in part and denied without
prejudice in part.
Rule 26(b)(5) of the Federal Rules of Civil Procedure governs the withholding and
production of privileged materials in a federal lawsuit. As pertinent here, Rule 26(b)(5) states:
(A) Information Withheld. When a party withholds information otherwise
discoverable by claiming that the information is privileged or subject to protection
as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not
produced or disclosed – and do so in a manner that, without revealing information
itself privileged or protected, will enable other parties to assess the claim.
(B) Information Produced. If information produced in discovery is subject to a claim
of privilege or of protection as trial-preparation material, the party making the claim
may notify any party that received the information of the claim and the basis for it.
After being notified, a party must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose the information until the
claim is resolved; must take reasonable steps to retrieve the information if the party
disclosed it before being notified; and may promptly present the information to the
court under seal for a determination of the claim. The producing party must preserve
the information until the claim is resolved.
Fed. R. Civ. P. 26(b)(5). In federal question cases such as this one, federal law controls the issues
of privilege raised by the parties,1 and federal common law recognizes the deliberate process
Notably, in City of Colo. Springs v. White, 967 P.2d 1042, 1049 (Colo. 1998), the Colorado
Supreme Court also recognized the common law deliberative process privilege in Colorado. See
Land Owners United, LLC v. Waters, 293 P.3d 86, 95 (Colo. App. 2011).
The D.C. Circuit notes, “[a]lthough this privilege is most commonly encountered in
Freedom of Information Act (‘FOIA’) litigation, it originated as a common law privilege.” In re
The deliberative process privilege “covers documents reflecting advisory opinions,
recommendations, and deliberations that are part of a process by which governmental decisions and
policies are formulated.” U.S. Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S.
1, 8 (2001). The privilege “rests on the obvious realization that officials will not communicate
candidly among themselves if each remark is a potential item of discovery and front page news, and
its object is to enhance the quality of agency decisions by protecting open and frank discussion
among those who make them within the Government.” Id.; see also Casad v. U.S. Dep’t of Health
& Human Servs., 301 F.3d 1247, 1251 (10th Cir. 2002). The privilege serves the secondary purpose
of “prevent[ing] the premature disclosure of proposed policies, and avoids ‘misleading the public
by dissemination of documents suggesting reasons and rationales for a course of action which were
not in fact the ultimate reasons for the agency’s action.’” Trentadue v. Integrity Comm., 501 F.3d
1215, 1226 (10th Cir. 2007) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854,
866 (D.C. Cir. 1980)).
To qualify for protection under the privilege, the party seeking to invoke the privilege bears
the burden of proving that the documents at issue are both pre-decisional and deliberative. Id. at
1227 (citations omitted). A document is pre-decisional if it is “‘prepared in order to assist an agency
decisionmaker in arriving at his decision.’” Id. (quoting Renegotiation Bd. v. Grumman Aircraft
Eng’g Corp., 421 U.S. 168, 184 (1975)). In Casad, the Tenth Circuit cited two factors that are
“helpful” in determining whether a document is pre-decisional: (1) “the ‘nature of the
decisionmaking authority vested in the officer or person issuing the disputed document;’” and (2)
“the relative positions in the agency’s ‘chain of command’ occupied by the document’s author and
Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). Thus, as have other courts in and outside of this
District, the Court may rely on opinions addressing FOIA requests in determining the scope and
requirements of the deliberate process privilege.
recipient.” Casad, 301 F.3d at 1252 (citations omitted).
Documents that are deliberative and, therefore, covered under the privilege include
“recommendations, draft documents, proposals, suggestions, and other subjective documents which
reflect the personal opinions of the writer rather than the policy of the agency.” Coastal States Gas
Corp., 617 F.2d 866.
Factual materials do not qualify as deliberative unless their “disclosure
‘would so expose the deliberative process within an agency that it must be deemed exempted.’”
Trentadue, 501 F.3d at 1228 (quoting Mead Data, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242,
256 (D.C. Cir. 1977)). The Tenth Circuit exempts certain factual materials only if (1) “they are
inextricably intertwined with deliberative materials” or (2) “their disclosure would reveal
deliberative material.” Id. at 1229.
If the government succeeds in carrying its burden demonstrating that the subject documents
are privileged, the court must decide whether the privilege is overcome by the requesting party’s
showing of need. In re Sealed Case, 121 F.3d at 737. Factors to be considered in balancing the
interests of the government with the needs of the party seeking disclosure include the documents’
relevance, the availability of other evidence, the seriousness of the litigation, the role of the
government, and the possibility of future timidity by government employees. Id.
Commerce City contends that the withheld documents are “inherently predecisional” and,
thus, privileged and asks the Court to find that any showing of “need” by the Plaintiff is outweighed
by the City’s “interest in the privacy of these materials [as] strongly supported by the chilling effect
that would occur if the Court orders production.” Plaintiff counters that the City fails to establish
it has standing to assert the privilege over documents produced by a separate governmental entity
(Department of Justice); the City’s contention that all documents predating the DOJ’s final report
are “pre-decisional” is overly broad; certain documents and communications between the entities
are “post-decisional” because they involve a review of past and current policies; the City has failed
to establish the withheld documents are “deliberative”; and any privilege is outweighed by the
Plaintiff’s need for the documents, which are relevant and probative, Plaintiff is unable to obtain
them by other means, the City’s alleged misconduct is directly at issue in the case, disclosure of the
documents “would not hinder frank and independent discussions,” and an applicable protective order
would protect against “alleged harm or confusion to the public.”
The Court finds that the parties’ briefs are uniform in one respect: they suggest that a finding
of the privilege cannot be made without review of the challenged documents. See Mot. 9 (“the City
respectfully requests that, at a minimum, in camera review be performed by the Court”); Resp. 9
(“Commerce City’s summary of documents is vague and nondescript. Each document or, at a
minimum, each category of documents must be proved to be pre-decisional and deliberative.”); id.
at 11 (“Commerce City does not parse out which of these documents simply state or explain a
decision or provide factual information, none of which are subject to privilege.”); id. (“there is no
way, based on [the] briefing, that the Court could determine whether all the documents are ‘predecisional’ and ‘deliberative’ let alone whether Commerce City has standing to assert privilege”)
(emphasis in original); Reply 7 (“all materials responsive to Plaintiff’s Interrogatory No. 22
represent factual as well as deliberative information which is inexorably intertwined.”).
The Court agrees. First, to determine whether Plaintiff has “standing” to assert the privilege,
the Court must review the withheld documents to determine whether they involve an “inter-agency
audit” or other collaboration and whether they “originated with the City, or are inexorably connected
to the City.” Reply 3.
Second, to determine whether the withheld documents are pre-decisional as the City
contends, the Court must view them to understand the “nature of the decisionmaking authority
vested in the officer or person issuing the disputed document” and “the relative positions in the
agency’s ‘chain of command’ occupied by the document’s author and recipient.” Casad, 301 F.3d
at 1252. In addition, the Court must evaluate whether the documents “reflect the personal opinions
of the writer rather than the policy of the agency” (see Coastal States Gas Corp., 617 F.2d 866);
whether they merely contain facts, which are not protected from disclosure; or whether any factual
materials may be “inextricably intertwined with deliberative materials” or “their disclosure would
reveal deliberative material.”
Trentadue, 501 F.3d at 1229. Finally, the Court must examine
whether each withheld document is relevant and probative to the claim against the City for failure
to train, or whether the disclosure of the documents could “reasonably hinder future deliberative
process. In re Sealed Case, 121 F.3d at 737.
Therefore, the Court grants in part and denies without prejudice in part Defendant
Commerce City’s Motion for Protective Order [filed August 7, 2017; ECF No. 99] as follows. At
this time, the City will produce copies of the withheld documents only to the Court for in camera
review on or before September 11, 2017 and, at the same time, will file a Notice of Submission on
the public docket of this case. The document production may be in hard-copy or electronic format.
Once the Court completes its review of the withheld documents, it will issue an order establishing
whether any or all of the documents are protected by the deliberative process privilege as set forth
Dated at Denver, Colorado, this 1st day of September, 2017.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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