Opinion
Case No.: 16-CV-1986-W(WVG)
07-14-2017
ALTON JONES, Plaintiff, v. U.S. BORDER PATROL AGENT GERARDO HERNANDEZ et al., Defendants.
ORDER ON DISCOVERY DISPUTE OVER DELIBERATIVE PROCESS PRIVILEGE ASSERTED BY DEFENDANTS
Pending before the Court is the parties' dispute over Plaintiff's discovery request that Defendants disclose emails memorializing deliberations regarding their decision to not bring criminal charges against Plaintiff for his alleged assault on a federal officer. Defendants submitted the unredacted disputed emails to the Court for in camera review, and the Court convened an informal teleconference with the parties' attorneys and heard argument on June 30, 2017. As explained below, the Court finds Defendants need not disclose the disputed emails. / / / / / /
I. BACKGROUND
On August 8, 2016, Plaintiff filed a Complaint alleging that Defendants violated his Fourth Amendment rights by using excessive force against him during a confrontation near the United States-Mexico border. (ECF. No. 1.) After the confrontation, Defendants placed Plaintiff in a patrol vehicle, transported him to the Imperial Beach Border Patrol station, and detained him overnight. While Plaintiff was in custody, the Imperial Beach Border Patrol Station management and members of the Smuggling Interdiction Group ("SIG") discussed via email whether to recommend bringing criminal charges against Plaintiff and debated which of them had the authority to make that final determination. (Parties' Informal Joint Submission ("PIJS") at 7.) Plaintiff was held in custody until Patrol Agent-in-Charge ("AIC") Bovino decided not to recommend charging Plaintiff with a criminal offense. (Id.) On April 10, 2017, Defendants filed an Amended Counter-Claim, alleging that Plaintiff had assaulted and battered one of the Border Patrol agents during the initial confrontation "in violation of 18 U.S.C. § 111(a)(1)." (ECF. No. 19.)
Pursuant to this Court's Chambers Rules, the parties submitted an informal joint brief for this discovery dispute. The joint brief initially was not filed on the public docket, but will be filed with this Order. --------
The United States' initial disclosures indicate that Border Patrol agents in the agency's internal prosecutions unit are "likely to have discoverable information that [Plaintiff] may use to support [his] claims and/or defenses." (PIJS at 1.) On April 28, 2017, Plaintiff sought production of all Border Patrol documents concerning the incident. (Id.) On May 30, 2017, Defendants responded to this request and asserted the deliberative process privilege to withhold portions of emails between the Imperial Beach Patrol Station, SIG, and AIC Bovino. (Id.) / / / / / / / / /
II. LEGAL STANDARD
A. Discovery in Civil Cases
Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense, and for good cause, the Court may order discovery of any matter relevant to the subject matter involved in the action. Fed. R. Civ. P. 26(b)(1). Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Id.
However, the Court must limit discovery if the burden of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)(C). In such situations, the Court must limit discovery if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;Id. "In each instance, the determination whether . . . information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending action." Fed. R. Civ. P. 26 Advisory Committee's Note (2000 Amendment) (Gap Report) (Subdivision (b)(1)).
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Pursuant to Rule 37(a), a party propounding discovery may seek an order compelling disclosure when an opposing party objects or otherwise fails to respond or provides evasive or incomplete responses. Fed. R. Civ. P. 37(a)(3)(B). "[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." Fed. R. Civ. P. 37(a)(4).
"The party opposing the discovery bears the burden of resisting disclosure." Odyssey Wireless, Inc. v. Samsung Electronics Co., Ltd, Nos. 15-cv-02738-H(RBB), 15-cv-01743-H(RBB), 15-cv-01735-H(RBB), 2016 WL 7665898, at *2 (S.D. Cal. September 20, 2016); Valenzuela v. City of Calexico, No. 14-cv-481-BAS(PCL), 2015 WL 926149, at *1 (S.D. Cal. Mar. 4, 2015). However, the moving party is nevertheless required to inform the Court which discovery requests are the subject of the motion to compel, and, for each disputed response, why the information sought is relevant and why the responding party's objections are not meritorious. Valenzuela, 2015 WL 926149, at *1; Womack v. Virga, No. CIV S-11-1030 MCE EFB P., 2011 WL 6703958, at *3 (E.D. Cal. Dec. 21, 2011).
B. The Deliberative Process Privilege
Additionally, the deliberative process privilege shields federal agencies from mandatory disclosure of "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency . . . ." 5 U.S.C. § 552(b)(5). In order to assert the privilege, an agency must show that the information sought is (1) an inter-agency or intra-agency document, (2) pre-decisional, and (3) deliberative. Carter v. U.S. Dep't of Commerce, 307 F.3d 1084, 1089 (9th Cir. 2002). In this context, "agency" refers broadly to each authority of the United States government and includes any Executive department, military department, or other establishment in the Executive Branch, or any independent regulatory agency. Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 9 (2001). "'A document may be considered predecisional if it was 'prepared in order to assist an agency decision maker in arriving at his decision.'" Carter, 307 F.3d at 1089 (quoting Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184 (1975)). Likewise, a document is deliberative if "the disclosure of [the] materials would expose an agency's decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Carter, 307 F.3d at 1089.
The deliberative process privilege is a qualified privilege and is inapplicable if the litigant establishes that its need for the information outweighs the government's interest in preventing disclosure of the information. FTC v. Warner Commc'ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). Among the factors to be considered in making this determination are: (1) the relevance of the evidence; (2) the availability of other evidence; (3) the government's role in the litigation; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions. Id. In certain circumstances, the Court may deny the protection of the deliberative process privilege, regardless of the balancing test. These circumstances include the following: (1) when there is reason to believe that the documents sought may shed light on government misconduct, see id. at 1162; Lahr v. Nat'l Transp. Safety Bd., 569 F.3d 964, 980 (9th Cir. 2009); See also In Re Sealed Case 121 F.3d 729, 746 (D.C. Cir. 1997), and (2) when the agency's decision-making process is itself at issue, In re Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998).
III. DISCUSSION AND RULINGS
Plaintiff seeks production of emails sent between the Imperial Beach Border Patrol Station management, SIG, and AIC Bovino. Defendants have already produced a redacted version of these emails and have asserted the deliberative process privilege to withhold the redacted contents of these emails. The Court is satisfied that the disputed portions of these emails are properly subject to the deliberative process privilege.
A. Defendants Satisfied the Elements of the Deliberative Process Privilege
The Court must first determine whether Defendants have properly asserted the privilege. Here, the Court finds that the documents are the type normally protected by the deliberative process privilege.
First, the emails are intra-agency communications between the Imperial Beach Border Patrol Station, SIG, and AIC Bovino—all of which operate within the Department of Homeland Security, a federal agency.
Second, the communications were pre-decisional, meaning that, chronologically, they occurred prior to AIC Bovino's decision not to recommend criminal charges. Further, the purpose of these communications was to determine who had the ultimate authority to make the decision to charge Plaintiff.
Finally, the communications were deliberative because they memorialized a candid conversation between agents who were discussing the mechanics of performing a discretionary function. In a broader sense, discussions pertaining to decisions to charge future individuals would be undermined if these communications were exposed through discovery because agents might not feel at liberty to present contrary opinions if those opinions would be subject to later scrutiny.
For these reasons, the Court find the Defendants have satisfied their initial burden of showing that these emails are subject to the deliberative process privilege.
B. Plaintiff Did Not Establish that the Need to Disclose the Contents of the Emails Outweighs Defendants' Privilege
Once all elements of the privilege have been shown by the governmental agency, the burden shifts to the party opposing the privilege to establish that its need for the information outweighs the interest of the government in preventing disclosure of the information. See In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). Because the deliberative process is a qualified privilege, the Court must next determine whether the litigant's need for these emails outweighs the government's interest in preventing their disclosure.
1. The Relevance of the Evidence
First, the Court considers the relevance of the evidence. In response to Plaintiff's allegations, Defendants counterclaimed for assault, battery, and negligence for injuries that a federal agent sustained while taking Plaintiff into custody. (Am. Counterclaim, Doc. No. 19 at 6-7.) Plaintiff then asserted a "defense" of "retaliation," asserting that "[o]n information and belief, Defendant/Counter-Claimant USA's pursuit of a counterclaim in this case is equitably or otherwise barred because it is substantially motivated by retaliation against Mr. Jones's exercise of his First Amendment rights to freedom of speech and to petition the government for redress of grievances, including but not limited to his pursuit of this action." (Ans. to Am. Counterclaim, ECF. No. 32 ¶ 16.) Plaintiff now argues that the emails are relevant because they speak to the legitimacy of Defendants' counterclaims. He argues that knowing the contents of the deliberations would help demonstrate that the counterclaims are groundless retaliation against him for bringing this suit. After reviewing the contents of the redacted emails, the Court finds this argument is unpersuasive, as the contents of the emails are not relevant to any issue or fact of consequence in this case.
Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." Fed. R. Evid. 401. "Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case." Id., advisory committee's notes.
Here, after in camera review of the subject emails, the Court finds they are not relevant to any fact of consequence in this case. The emails demonstrate an internal power struggle between different factions of the same federal agency as they debate which faction will make the ultimate decision to recommend charging Plaintiff with a crime. The emails certainly do not reveal any reasons behind the ultimate decision to not recommend charges against the Plaintiff. In other words, the email participants were not debating or exchanging ideas about the merits of the charging decision. They were simply engaged in the process of determining who "the decider" would be, and it appears there may have been miscommunication and confusion during that discussion about who that person would be. As such, this email string has no relevance to any issue or fact of consequence in this case and certainly does not make it any more or less probable that the Government's decision to counterclaim against Plaintiff now was, as Plaintiff asserts, "substantially motivated by retaliation." Internal bickering and assertion of decision-making authority, without discussion about the merits of the charging decision, in no way makes it more or less probable that the Government is now retaliating against Plaintiff. Accordingly, the Court finds the subject emails are not relevant, and this factor heavily favors the Government.
2. The Availability of Other Evidence
The Court must next consider the availability of other evidence. Plaintiff argues that, because the emails are the only contemporaneous discussions on whether to recommend criminal charges, there is no other evidence available. However, because the emails do not contain substantive discussion about recommending criminal charges, the unavailability of other evidence is moot. Thus, this factor weighs neutrally as to whether disclosure is appropriate. Because the emails do not contain substantive discussions about the merits for or against charging Plaintiff with a crime, they would not assist in any cross-examination. AIC Bovino retains that information and may be questioned accordingly in a deposition.
3. The Government's Role in the Litigation
Third, the Court considers the government's role in the litigation. Here, the Government is a party to the suit and, thus, is integrally involved in the litigation. This factor weighs in favor of disclosure. See Thomas v. Cate, 715 F. Supp. 2d 1012, 1044 (E.D. Cal. 2010).
4. The Extent to Which Disclosure Would Hinder Frank and Independent Discussion Regarding Contemplated Policies and Decisions
Finally, the Court considers the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions. As explained above, the emails do not contain substantive discussions about the merits of charging Plaintiff. However, this factor nonetheless favors Defendants because, in a broader sense, disclosure of these types of emails would hinder frank and independent discussion. Disclosure would prospectively discourage agents from voicing contrary opinions or pointing out weaknesses in certain discretionary decisions if the records of these discussions are to be made public. This is especially true here, where Plaintiff's very purpose is to mine the substance of a law enforcement agency's deliberations about its charging decision. Compelling disclosure under these circumstances would discourage agents from having frank and open discussions about charging decisions. This factor favors the Government.
5. Conclusion
Having weighed these four factors, the Court finds that Plaintiff's need for these emails does not outweigh Defendants' interest in preventing their disclosure.
C. The Emails Do Not Shed Light on Government Misconduct
But the Court's inquiry does not end there. When there is reason to believe that the documents sought may shed light on government misconduct, the deliberative process privilege is usually pierced, regardless of the strength of the government's interest in preventing disclosure. See FTC, 742 F.2d at 1162; Lahr, 569 F.3d at 979. To invoke the government misconduct exception, the party seeking discovery must provide an adequate factual basis for the belief that the requested discovery would shed light on government misconduct. See Lahr, 569 F.3d at 979; see also Judicial Watch of Fla. v. Dep't of Justice, 102 F. Supp. 2d 6, 15-16 (D.D.C. 2000); Am. Petroleum Tankers Parent, LLC v. United States, 952 F. Supp. 2d 252, 268-69 (D.D.C. 2013). Here, based on the Court's in camera review, the subject emails do not shed light on any government misconduct, nor has Plaintiff provided even a scintilla of evidence to support such an allegation.
D. The Agency's Decision-Making Process is Not at Issue
The deliberative process privilege may be inapplicable if the agency's decision-making process itself is at issue. In re Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 145 F.3d at 1424. Typically, this exception to the privilege applies to suits involving claims of discrimination or governmental malfeasance where the government agent's subjective intent or deliberations are part of the alleged wrongdoing. Plaintiff has not brought claims of discrimination or governmental malfeasance, yet still argues the decision-making process, memorialized in the emails, is at issue in two ways. First, Plaintiff alleges Defendants' delay in bringing the civil suit puts their decision not to prosecute Plaintiff at issue because it speaks to the legitimacy of the counterclaims. Plaintiff further alleges Defendants opened the door to the emails being at issue when they identified, in their initial disclosures, several agents as being "likely to have discoverable information that it may use to support its claims and/or defenses." (PIJS at 3.)
The Court is unconvinced Defendants' delay in bringing the counterclaims puts their earlier decision-making process at issue. Plaintiff has not claimed malicious prosecution, but rather an affirmative defense of retaliation. Even assuming this is a valid defense to the counterclaims, the discussion about whether to bring a criminal suit three years ago has marginal bearing on the decision to bring a civil counter-suit now. The standard of proof in a criminal case is far greater than in civil matters. The counterclaims' legitimacy is therefore untethered from the decision to forgo charging a crime that must be proven beyond a reasonable doubt to a unanimous jury.
Similarly, the Defendants' identification of agents on the prosecution unit in their initial disclosure does not put the contents of the emails at issue. As Defendants further explained at oral argument, the references to those agents in the initial disclosures related to Plaintiff's claims of wrongful detainment. Those identified agents have discoverable material relevant to the process by which Plaintiff was detained and the time it took to determine whether to file charges against him. Indeed, the time-stamped emails reveal the length of the agents' deliberations, which correspond with the length of Plaintiff's detainment. Defendants already have produced this information in the redacted versions of the emails. The actual contents of these emails is not at issue here and, thus, further disclosure is unnecessary.
IV. CONCLUSION
Based on the foregoing, the Court finds the Defendants have shown the deliberative process privilege applies to the emails in dispute. Further, Plaintiff's need for these emails does not outweigh Defendants' interest in not disclosing them and the other exemptions to the privilege are not applicable. Accordingly, the Court DENIES Plaintiff's request and declines to compel Defendants to disclose the redacted contents of the emails.
IT IS SO ORDERED.
DATED: July 14, 2017
/s/ _________
Hon. William V. Gallo
United States Magistrate Judge