Arizona Dream Act Coalition; Jesus Castro-Martinez; Christian Jacobo; Alejandro Lopez; Ariel Martinez; and Natalia Perez-Gallagos, Plaintiffs,
Janice K Brewer, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
Following a discovery conference call with the Court on December 6, 2013, and at the Court's direction, the parties filed briefs regarding application of the deliberative process and attorney-client privileges. Plaintiffs seek to compel the production of documents and testimony concerning the policy of the Governor's Office and the Arizona Department of Transportation ("ADOT") to deny driver's licenses to individuals granted deferred action status under the 2012 Deferred Action for Childhood Arrivals ("DACA") program. Doc. 210. Plaintiffs have submitted Defendants' privilege log and portions of deposition transcripts in which Defendants assert that certain material is privileged. Defendants argue that both the documents in the log and testimony about those documents are protected by the attorney-client privilege, work product doctrine, and the deliberative process privilege. Doc. 209.
For ease of analysis, the contested documents are divided into two categories: (1) documents for which Defendants assert only the deliberative process privilege, and (2) documents for which Defendants assert the attorney-client privilege. Plaintiffs do not challenge the assertion of the work product doctrine.
I. Deliberative process privilege.
Defendants' privilege log (Doc. 210-2) identifies 174 documents as protected only by the deliberative process privilege. For the reasons stated below, Plaintiffs' motion to compel production of these documents will be granted.
A. Legal Standard.
Federal common law recognizes a deliberative process privilege. Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001). The privilege rests on the fact that officials will not communicate candidly among themselves if each remark could be subject to discovery. The privilege seeks to enhance the quality of government by promoting open and frank exchanges among government decision-makers. For the privilege to apply, a document must meet two threshold requirements. "First, the document must be predecisional - it must have been generated before the adoption of an agency's policy or decision.... Second, the document must be deliberative in nature, containing opinions, recommendations, or advice about agency policies. Purely factual material that does not reflect deliberative processes is not protected." F.T.C. v. Warner Commc'ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984).
Even if a party satisfies these requirements, the deliberative process privilege is qualified. "A litigant may obtain deliberative materials if his or her need for the materials and the need for accurate fact-finding override the governments' interest in non-disclosure." Id. Among the factors that the Court must consider 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. Thus, if the Court determines that the privilege applies, the Court must consider whether portions of the document are still subject to disclosure. See Elec. Frontier Found. v. Office of the Dir. of Nat'l. Intelligence, 639 F.3d 876 (9th Cir. 2010) (citing Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973)). "The party asserting an evidentiary privilege has the burden to demonstrate that the privilege applies to the information in question." Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988) (citing United States v. Hirsch, 803 F.2d 1493, 1496 (9th Cir. 1986)).
The driver's license policy at issue in this case was originally adopted in 2012. The Court issued an order denying a preliminary injunction of the 2012 policy in May of 2013. The policy was subsequently changed, and that change was implemented on September 17, 2013.
To meet their threshold burden in asserting the privilege, Defendants must show that the contested communications are pre-decisional. Warner, 742 F.2d at 1161; Tornay, 840 F.2d at 1426. Defendants do not attempt to make this showing. They do not attach a copy of their privilege log to their brief, and do not discuss the timing of claimed deliberative documents or the relationship of those documents to the 2012 policy or the 2013 policy change. Plaintiffs provide a copy of Defendants' privilege log with their brief, and it does include dates of documents, but the log says nothing about whether documents claimed to be deliberative relate to the 2012 policy or the 2013 policy change. Although the Court could make assumptions on the basis of the document dates and the dates of the 2012 policy and the 2013 policy change, the Court should not have to proceed on the basis of assumptions. Moreover, the record suggests that the 2013 policy change was considered by Defendants for many months before it was adopted, and the Court cannot safely attempt to guess which allegedly deliberative documents relate solely to that policy change.
Defendants must also make the threshold showing that the documents are deliberative in nature. Warner, 742 F.2d at 1161; Tornay, 840 F.2d at 1426. Defendants do not make this showing. In order to be deliberative, the documents must contain opinions, recommendations, or advice about agency policies. Warner, 742 F.2d at 1161. In analyzing this threshold requirement in Warner, the Ninth Circuit examined the contents of the documents to determine whether such opinions or recommendations existed. Defendants in this case provide no information about the content of the documents other than the privilege log's very short description of a few words and the names of the senders and recipients. The description in many cases is uninformative, such as the series of emails described as "re: DHS Announcement." Doc. 210-2 at 39. A few documents have notes in the "comments" column, but none of those notes discuss the contents of the documents.
In sum, Defendants have not carried their burden of showing that the deliberative process privilege applies to the documents listed in the privilege log. Defendants have not addressed whether the documents are pre-decisional, and have made no showing that the documents are deliberative under Warner. But this is not the only reason for granting Plaintiff's motion. Even if Defendants had made this threshold showing, the Court would conclude, under the four factors articulated in Warner, that the qualified privilege should not be applied in this case. 742 F.2d at 1161.
First, the communications at issue in this case are highly relevant. Under the Ninth Circuit's active level of rational basis review for Equal Protection claims, which the Court found applicable in its previous decision, the Court must consider the actual intent behind Arizona's driver's license policy when it considers the merits of this case. Doc. 114 at 24-27, discussing Dep't. of Agriculture v. Moreno, 413 U.S. 528 (1973); City of Cleburn v. Cleburn Living Center, Inc., 473 U.S. 432 (1985); Romer v. Evans, 517 U.S. 620 (1996); Diaz v. Brewe r, 656 F.3d 1008 (9th Cir. 2011). Under such ...