United States of America v. State of Rhode Island Department of Corrections et al

Filing 76

ORDER GRANTING IN PART, DENYING IN PART 60 APPEAL OF MAGISTRATE JUDGE ORDER filed by State of Rhode Island Department of Corrections, State of Rhode Island. So Ordered by Chief Judge William E. Smith on 9/12/2016. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
STATE OF RHODE ISLAND;
)
RHODE ISLAND DEPARTMENT OF
)
CORRECTIONS,
)
)
Defendants.
)
___________________________________)
UNITED STATES OF AMERICA,

C.A. No. 14-78 S

ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is the State of Rhode Island and the
Rhode Island Department of Corrections’ (collectively “RIDOC”)
appeal of Magistrate Judge Lincoln D. Almond’s order denying
RIDOC’s

Motion

Justice’s

to

(“USDOJ”)

Compel

the

30(b)(6)

United

designee

States
to

Department

testify

about

of
the

information listed in Matter 5 (the “Matter”) of the RIDOC’s
deposition notice.

(ECF No. 60.)

The Matter requested the

following testimony:
The method of calculation by which the DOJ evaluated
the
RIDOC’s
employment
and
selection
procedures,
including, but not limited to:
a. Identifying the steps taken and person(s) involved in
establishing any statistical analysis;
b. The factual basis for any statistical calculations;
c. The methodology employed to produce any statistical
calculations;
1

d. The dates that any statistical analysis was conducted;
e. The factual basis for each and every statistical
allegation contained in DOJ’s complaint.
(Defs.’ Mem. of Law 1 n.1, ECF No. 60-1.)

The USDOJ objected

to this Matter, arguing that it sought protected work product,
and fell under the government’s deliberative process and law
enforcement/investigative
Opp’n, ECF No. 63.)

process

privileges.

(See

Pl.’s

The RIDOC countered that it is entitled

to at least some of the information requested in the Matter to
support its affirmative defenses of laches and estoppel.
Defs.’

Reply,

ECF

No.

64.)

For

the

reasons

that

(See

follow,

RIDOC’s Motion is GRANTED IN PART and DENIED IN PART.
I.

Legal Standard
District courts review discovery rulings by a magistrate

judge under the clearly erroneous standard.
636(b)(1)(A)
pretrial

(“A

matter

judge
.

.

.

of

the

where

it

court
has

may
been

See 28 U.S.C. §
reconsider
shown

that

any
the

magistrate’s order is clearly erroneous or contrary to law.”);
Fed. R. Civ. P. 72(a) (“The district judge in the case must
consider timely objections and modify or set aside any part of
the

order

[on

a

non-dispositive

matter]

that

is

clearly

erroneous or is contrary to law.”); United States v. Shaw, 113
F. Supp. 2d 152, 161 (D. Mass. 2000).

Consequently, this

Court must accept Magistrate Judge Almond’s findings “unless,
after

scrutinizing

the

entire
2

record,

we

‘form

a

strong,

unyielding belief that a mistake has been made.’”
Wentworth

Douglas

Hosp.,

199

F.3d

1,

4

Phinney v.

(1st

Cir.

1999)

(quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152
(1st Cir. 1990)).
II.

Discussion
The doctrines under which USDOJ seeks protection share

two

important

attributes.

First,

each

is

a

qualified

privilege, meaning that the requesting party can overcome the
privilege

by

information.

showing
See

In

a

sufficient

re

San

Juan

need

for

Dupont

the

Plaza

protected
Hotel

Fire

Litig., 859 F.2d 1007, 1015 (1st Cir. 1988) (“Courts typically
afford

ordinary

work

product

only

a

qualified

immunity,

subject to a showing of substantial need and undue hardship
. . . .”); Ass’n for Reduction of Violence v. Hall, 734 F.2d
63, 66 (1st Cir. 1984) (The law enforcement and deliberative
process

privileges

“are

essentially

similar

in

their

underlying rationales and principles of application.

They are

qualified

is

obliged

rather

to

than

balance

absolute,

conflicting

and

a

trial

interests

on

court
a

thus

case-by-case

basis in ruling on particular claims of privilege.”).

Second,

the level of protection afforded to the information depends on
the

type

of

protection
techniques.

information

than

opinions,

sought.
mental

Facts

are

impressions,

afforded
or

less

analytical

See Envtl. Prot. Agency v. Mink, 410 U.S. 73, 873

88 (1973) (considering “whether production of the contested
document would be injurious to the consultative functions of
government that the privilege of nondisclosure protects,” and
concluding “in the absence of a claim that disclosure would
jeopardize state secrets, . . . memoranda consisting only of
compiled factual material or purely factual material contained
in deliberative memoranda and severable from its context would
generally be available for discovery by private parties in
litigation with the Government” (internal citations omitted)),
superseded by statute on other grounds as stated in C.I.A. v.
Sims, 471 U.S. 159 (1985); New Mexico Tech Research Found. v.
Ciba-Geigy Corp., No. MISC. 96-085B, 1997 WL 576389, at *2
(D.R.I. Jan. 3, 1997) (distinguishing between the level of
protection afforded to ordinary work-product and opinion workproduct); Jenkins v. State of Rhode Island State Police Dep't,
No. CA 04-453 S, 2006 WL 1371644, at *3 (D.R.I. May 15, 2006)
(noting

that

privilege
enforcement
quotation

the

for

law

enforcement

documents

investigative
marks

omitted)

that

privilege

would

techniques
(citing

tend
or

Ass’n

“recognizes
to

reveal

sources’”
for

‘a
law

(internal

Reduction

of

Violence, 734 F.2d at 65–66)).
Here, Matter 5 seeks four categories of information:

(1)

the facts USDOJ relied on to conduct its statistical analyses
of

RIDOC’s

hiring

process,

(2)
4

the

dates

on

which

USDOJ

conducted those analyses, (3) the results of those analyses,
and (4) the methods USDOJ used in conducting those analyses.
The first two categories – the facts USDOJ used to conduct its
various analyses and the dates it conducted those analyses –
are purely factual in nature.

See e.g. EEOC v. Peoplemark,

Inc., No. 1:08-CV-907, 2010 WL 748250, at *2 (W.D. Mich. Feb.
26, 2010) (the dates on which investigations were started and
finished did not fall under deliberative process privilege);
Suboh v. Bellsouth Bus. Sys., Inc., No. CIV.A1:03CV0996CCCCH,
2004

WL

5550100,

(“Nevertheless,

at

*9
the

although

(N.D.

Ga.

Defendant

is

Nov.

17,

not

2004)

required

to

produce the report itself to Plaintiff, the Court reiterates
its

conclusion

that

the

data

underlying

the

statistical

analyses is not protected from disclosure by the attorneyclient privilege or the work-product doctrine.”).

And USDOC

has established a sufficient need for these facts.

Its laches

defense,

for

example,

requires

RIDOC

to

show

that

USDOJ

delayed filing suit for an unreasonable and inexcusable amount
of time after USDOJ knew or should have known that it had a
claim

against

RIDOC.

See

State

of

Kansas

v.

State

of

Colorado, 514 U.S. 673, 687-88 (1995); A.C. Aukerman Co. v.
R.L. Chaides Const. Co., 960 F.2d 1020, 1032 (Fed. Cir. 1992).
Knowing when USDOJ conducted its various analyses of RIDOC’s
hiring procedures and the facts on which USDOJ relied allows
5

RIDOC to test when USDOJ knew or should have known it had a
potential claim against RIDOC.

Thus, to the extent that the

Magistrate Judge’s order restricted inquiry into these facts,
it was in error; the information should be produced.
This Order, however, applies to a relatively narrow body
of information.

At oral argument, USDOJ represented that it

only relied on the information RIDOC had produced to conduct
its

statistical

data.

It

analyses

analyses.

need

and

the

only

USDOJ

indicate

general

facts

need

not

re-produce

this

the

dates

it

conducted

the

on

which

it

relied.

For

example, if USDOJ conducted an analysis in September 2010,
USDOJ should indicate which RIDOC production it relied on and
what years of hiring data it analyzed.

Further, at least

based on the parties’ representations at oral argument, it
does not seem necessary to reopen USDOJ’s 30(b)(6) witness’s
deposition.

Unless

the

parties

agree

that

additional

deposition testimony is appropriate, the Court grants RIDOC
leave to serve an interrogatory on USDOJ requesting the dates
USDOJ conducted its analyses of RIDOC hiring procedures and
the general facts on which USDOJ relied.

This interrogatory

shall be limited in time to 2009 to 2013.
Further, Magistrate Judge Almond did not err in denying
RIDOC’s request for the methods and the conclusions of USDOJ’s
analyses.

At a minimum, this information is work product and
6

implicates the USDOJ’s deliberative process privilege.

See

E.E.O.C. v. HBE Corp., 157 F.R.D. 465, 466 (E.D. Mo. 1994)
(“[I]t is the selection and compilation of the relevant facts
that is at the heart of the work product doctrine.”); E.E.O.C.
v.

California

(E.D.

Cal.

Psychiatric

2009)

Transitions,

(“Defendant

258

should

be

F.R.D.
able

391,

to

397

clarify

ambiguities related to the factual aspects of the material.
However, any conclusions, interpretations, or recommendations
that

the

investigator

formulated

[investigative] privilege.”).
substantial need for it.

would

be

subject

to

the

And RIDOC has not established a

Knowing when USDOJ conducted its

analyses and the information on which it based those analyses
provides

sufficient

facts

for

it

to

test

its

affirmative

defenses. 1
III. Conclusion
For the foregoing reasons, RIDOC’s Motion is GRANTED IN
PART and DENIED IN PART.

Unless the parties agree to another

form of discovery, RIDOC may, within fourteen (14) days of
this Order, serve an interrogatory on USDOJ requesting the
dates

between

2009

and

2013

on

which

USDOJ

conducted

statistical analyses of RIDOC’s data and a description of the

1

This Order has no bearing on the scope of
discovery to which RIDOC or USDOJ shall be entitled.
7

expert

data on which USDOJ relied; USDOJ shall have thirty (30) days
to respond.

The remainder of RIDOC’s Motion is DENIED.

IT IS SO ORDERED.

____________________
William E. Smith
Chief Judge
Date: September 12, 2016

8