survived summary judgment and is headed for trial. However, even though NP has alleged a violation of equal protection, no suspect class such as race or gender or some other basis for heightened scrutiny is involved. Thus, the seriousness of the litigation and the issues involved is somewhat lessened as compared to cases involving, for example, racial discrimination. Nonetheless, the federal constitutional interests involved are substantial.
The Court considers next the interest of NP, and ultimately of society, in accurate judicial fact finding and the relevance of the testimony NP seeks. In every case, the desirability of accurate fact finding weighs in favor of disclosure. See Newport, 200 F.R.D. at 638. In this case, however, the interest in accurate judicial fact finding is heightened because equal protection rights are at stake. See id. at 639 ("agree[ing] with Plaintiffs' assertion that the possibility of discrimination favors disclosure"). Moreover, there is no doubt that the testimony NP seeks from the City Council members is highly relevant to NP's equal protection claim. As explained in the Court's earlier order denying in part summary judgment, to prevail on its equal protection claim, NP must demonstrate that (1) the City intentionally treated NP differently from other similarly situated applicants and (2) there was no rational basis for the difference in treatment or the difference in treatment was motivated by animus directed at the Plaintiff. See Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (listing elements for equal protection claim brought by a class of one); DeMuria v. Hawkes, 328 F.3d 704, 707 (2d Cir. 2003) (noting that "allegation of an impermissible motive and of animus is sufficient to establish an equal protection issue" in lieu of irrationality). The motive and intent of the City Council members are undisputably relevant to the second element. Because the City Council's motive and intent are central to NP's equal protection claim, and at issue is alleged governmental misconduct, these factors weigh strongly in favor of disclosure.
The Court addresses next the government's role in the litigation. As is evident from the two elements making up NP's equal protection claim, the decisionmaking process of the City Council is by no means collateral to the litigation; indeed, the decisionmaking process "is not swept up into the case, it is the case." Irvin, 127 F.R.D. at 174 (internal quotation marks omitted; emphasis in original); see also In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 145 F.3d 1422 (D.C. Cir. 1998) (noting that "[t]he privilege was fashioned in cases where the governmental decisionmaking process is collateral to the plaintiff's suit"; adding that, "[i]f the plaintiff's cause of action is directed at the government's intent, . . . it makes no sense to permit the government to use the privilege as a shield"). Thus, this factor also weighs in favor of disclosure. See Newport, 200 F.R.D. at 640 (noting that "role of the government in the litigation itself' — being sued for, inter alia, violation of equal protection and due process — "tip[s] the scales in favor of disclosure").
This leads the Court to what is perhaps the most important factor in determining whether the deliberative process privilege should be overcome: the availability or unavailability of comparable evidence from other sources. The City argues that the information that NP seeks from the City Council members (i.e., the decisionmaking process) can be found in the administrative record, such as the minutes of the City Council hearing, which reflects the City Council's adoption of all the conditions of approval for NP's condominium project, including Condition 13(b). The City concedes that the administrative record says little, if anything, about Condition 13(b) in particular but contends that the absence in the record is NP's fault because NP failed to bring up that specific condition for the City Council's attention, at least at the City Council hearing on August 12, 2002. Although the City faults NP for not raising Condition 13(b) for the City Council's consideration at the August 12, 2002, hearing, it appears that NP did send various letters to the City Council and/or its counsel about the condition, even if the condition was not specifically discussed at the hearing.
The Court recognizes that there is an administrative record and that the existence of this record is significant. In Arlington Heights, the Supreme Court highlighted the various evidentiary sources that could reveal whether a government policy or decision was motivated by an invidious purpose; one such source was the legislative or administrative history, "especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports." Arlington Heights, 429 U.S. at 268, 97 S.Ct. 555; see also Overton Park, 401 U.S. at 420, 91 S.Ct. 814 (directing district court on remand to examine full administrative record that was before Secretary of Transportation at time decision was made to authorize use of federal funds to finance construction of highway through park). However, the Court also recognizes that a "bare record may not disclose the factors that were considered or the [decisionmaker's] construction of the evidence" such that "it may be necessary . . . to require some explanation [from the decisionmaker]." Id. This is often true in equal protection cases where the evidence of discriminatory intent "does not typically lay dormant in an administrative record." Newport, 200 F.R.D. at 639. In the instant case, the administrative record before the City Council does not exhaust the universe of information considered by the body. It is entirely possible that Council members had private conversations with the City's staff, NP's representatives, members of the public, and amongst themselves that are not embodied in the record. Yet this information may well be relevant in the ascertainment of motive, which is central to this case.
Finally, with respect to the possibility that disclosure here might hinder frank and independent discussion regarding contemplated policies and decisions, the Court is not convinced that communications in the future are likely to be chilled, especially given the limitations imposed on NP and the scope of its inquiry discussed below. Moreover, "if because of this case, [local legislators] are reminded that they are subject to scrutiny, a useful purpose will have been served." Newport, 200 F.R.D. at 640.
Given the factors discussed above, the Court concludes that the deliberative process privilege will likely be overcome. NP may question the City Council members about the decisionmaking process with respect to Condition 13(b), including the motive and intent behind approval of the condition. However, given the potential invasiveness of inquiry into the City Council members' internal mental processes, as reflected in the Supreme Court's cautionary language in Overton Park and Arlington Heights, the Court preliminarily will permit NP to question the City Council members only about objective manifestations of the decisionmaking process. For example, NP may ask the City Council members about what they said to others about NP and Condition 13(b), what they heard, what they read, what they were told, and so forth. The Court will not allow NP to inquire as to the City Council members' subjective uncommunicated thoughts. Cf. Foley, 747 F.2d at 1299 (in First Amendment case, stating that focus should be on objective manifestations of legislative purpose as opposed to subjective motivations of individual legislators). Such inquiry is likely to be obviated to a large extent because NP can explore the objective evidence that surrounded and illuminated the decisionmaking process.*fn3 See Overton Park, 401 U.S. at 420, 91 S.Ct. 814 (noting that, where administrative findings available, "there must be a strong showing of bad faith or improper behavior" before inquiry into mental processes); FTC, 742 F.2d at 1161 (taking note of availability or unavailability of comparable evidence from other sources as factor in deciding whether deliberative process privilege should be overcome).
The Court reserves the authority, however, to revisit the line drawn herein at trial should it become clear that the objective evidence is inadequate to satisfy the countervailing truth-finding interests at issue. This might occur, for instance, if the City's successful assertion of the attorneyclient privilege significantly impedes NP's access to objective evidence of the deliberative process.
C. Attorney-Client Privilege
Federal common law, of course, recognizes the attorney-client privilege. The privilege has been described by the Ninth Circuit as follows:
(1) When legal advice of any kind is sought (2) from
a professional legal adviser in his or her capacity
as such, (3) the communications relating to that
purpose, (4) made in confidence (5) by the client,
(6) are, at the client's instance, permanently
protected (7) from disclosure by the client or by the
legal adviser (8) unless the protection be waived.
United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002). The party asserting the privilege has the burden of establishing all of its elements and, even if established, the privilege is strictly construed. See id. at 999-1000.
In the instant case, the dispute centers around communications taking place during closed sessions of the City Council, pursuant to California's Brown Act. Under the Brown Act, the City Council may conduct a closed session "to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the [City Council] in the litigation." Cal. Gov't Code § 54956.9. The City argues that this provision of the Brown Act — in addition to the attorney-client privilege recognized by federal common law — should protect communications exchanged at any of the City Council's closed sessions which discussed litigation with NP.
Because a federal claim is at issue (i.e., violation of equal protection), "federal law determines whether there is a privilege." Kaufman v. Board of Trustees, 168 F.R.D. 278, 280 (C.D.Cal. 1996). The Brown Act is not a privilege recognized under federal law. See id. at 280. Therefore, the Court focuses only on the attorney-client privilege.*fn4
The Court is not persuaded that all communications during the closed sessions of the City Council, with the presence of legal counsel, are necessarily privileged. In the business world, a meeting is not automatically privileged simply because legal counsel is present. See Marten v. Yellow Freight System, Inc., No. 96-2013-GTV, 1998 WL 13244, at *7 (D.Kan. Jan. 6, 1998) (noting that "`[t]he mere attendance of an attorney at a meeting does not render everything done or said at that meeting privileged'"). Moreover, in the business world, "`[t]he mere fact that clients were at a meeting with counsel in which legal advice was being requested and/or received does not mean that everything said at the meeting is privileged.'" Id. (emphasis added). In general, legal advice is implicated "if the nonlegal aspects of the consultation are integral to the legal assistance given and the legal assistance is the primary purpose of the consultation." 1 Paul R. Rice, Attorney Client Privilege in the United States § 7:3, at 39 (2d ed. 1999) (emphasis in original); see also Marten, 1998 WL 13244, at *7 (noting that "`[l]egal advice must predominate for the communication to be protected'" and that, "[w]hen the legal advice `is merely incidental to business advice,' the privilege does not apply"). See, e.g., Burton v. R.J. Reynolds Tobacco Co., 200 F.R.D. 661, 670-71 (D.Kan. 2001) (concluding that request from outside counsel involved business advice when request was simply that client "isolate a quantity of tobacco glycoprotein and provide the quantity to the Council for Tobacco Research grantees for studies on its biological properties to substantiate or refute the claims of [a] researcher"); Asset Value Fund Ltd. Pshp. v. Care Group, No. 97 Civ. 1487(DLC)(JCF), 1997 WL 706320, at *4 (S.D.N.Y. Nov. 12, 1997) (stating that decision not to take action based on attorney's legal research did not transform attorney's work into business advice).
Larson v. Harrington, 11 F. Supp.2d 1198 (E.D.Cal. 1998) involved circumstances similar to those in the instant case. In Larson, the issue was whether the attorney-client privilege protected communications made at closed session meetings of the county board of supervisors, during which the board discussed the disciplining of plaintiff as a public employee and during which legal counsel provided legal advice to the board. See id. at 1200-01. The court stated that
the fact that confidential communications within the
privilege may have been made at the board meetings
does not cloak the entire proceeding in secrecy. The
agendas for the pertinent board meetings . . . show
that they were closed not to obtain legal advice but
to consider disciplining a public employee and those
discussions are certainly not within the
Id. at 1201 (emphasis added).
The line between business and legal advice may be gray, especially when the communication may have multiple functions. See, e.g., in re Ford Motor Co., 110 F.3d 954, 966 (3d Cir. 1997) (concluding that minutes of meeting privileged because, even if ultimate decision reached by committee could be characterized as a business decision, committee "reached that decision only after examining the legal implications of doing so" and decision was "infused with legal concerns"); Coleman v. ABC, 106 F.R.D. 201, 206 (D.D.C. 1985) (stating that "legal and business considerations may frequently be inextricably intertwined" and that "mere fact that business considerations are weighed in the rendering of legal advice does not vitiate the attorneyclient privilege").
Wilstein v. San Tropai Condominium Master Ass'n, 189 F.R.D. 371 (N.D.Ill. 1999) is illustrative. In Wilstein, the issue was to what extent the attorney-client privilege protected from discovery the statements made by the condominium board members during a closed door executive session to discuss their attorney's letter regarding pending litigation involving the plaintiff. See id. at 378. The plaintiff in the case had alleged that the condominium association violated the Fair Housing Act by refusing to provide accessible, handicapped parking and that he had been the victim of retaliation and harassment as a result of his attempts to gain accessible parking. See id. at 374.
The court noted first that underlying facts were not protected. See id. at 378. It then stated, relying on Larson, that "[discussions which did not implicate legal advice relating to pending or anticipated litigations were not privileged from discovery." Id. at 379. Expanding on this statement, the court stated that
discussions by members of the San Tropai
[condominium] board encompassing business strategy
and decision-making are not privileged, regardless of
whether or not the business decisions may have a
legal impact on San Tropai. However, conversations
among the board members discussing their attorney's
legal advice about potential litigation risk and
legal strategy are privileged under the
Id. at 379-80. The court then provided examples of questions that pertained to factual information underlying the plaintiff's claim or to information not involving privileged legal advice.
What topics were discussed in executive session? Why
was [the plaintiff] denied a handicapped parking
space? What factual information did the association
consider? What parking alternatives, if any, did the
association consider? Did any Board member reveal any
personal animus toward [the plaintiff]? How did the
Board vote? Were any members in favor of granting
[the plaintiff] a parking space? What business and
economic factors did the board consider in its
decision to deny a parking space to [the plaintiff]?