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NORTH PACIFICA, LLC v. CITY OF PACIFICA

July 30, 2003

NORTH PACIFICA, LLC, PLAINTIFF,
v.
CITY OF PACIFICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Edward Chen, Magistrate Judge.

ORDER RE DELIBERATIVE PROCESS PRIVILEGE

I. FACTUAL BACKGROUND

Plaintiff North Pacifica LLP ("NP") has filed suit against the City of Pacifica ("City"), claiming that its right to equal protection was violated when the City imposed a condition of approval on NP's proposed condominium project that was more onerous than that imposed on similarly situated projects. The condition of approval, known as Condition 13(b), as interpreted by NP, requires that the covenants, conditions, and restrictions for the project state that individual homeowners be jointly and severally liable for, inter alia, the condominium's common areas, thus exceeding liability normally imposed on a homeowners' association. During a meeting on August 12, 2002, the City Council approved all of the conditions of approval on NP's project, including Condition 13(b).

During the Final Pretrial Conference on July 16, 2003, NP confirmed that two of the City Council members would be witnesses for its case-in-chief and also asked that the remaining three City Council members be added to its witness list. The Court granted the request and then permitted the City, upon request, to include the remaining three members on its own witness list. The issue arose, however, as to the permissible scope of the City Council members' potential testimony. NP argued that it should be allowed to ask the City Council members about the decisionmaking process resulting in the approval of Condition 13(b), in particular, the motive and intent of the members in approving the condition. The City argued that the testimony of the City Council members was protected by the deliberative process and attorney-client privileges. The Court thus asked the parties to brief the privileges as they affect the potential testimony of the City Council members at trial.

II. DISCUSSION

A. Applicable Law

As a preliminary matter, the Court must first address whether the federal common law on privilege or the state law on privilege should apply. "In federal question cases, federal privilege law applies." NLRB v. North Bay Plumbing, Inc., 102 F.3d 1005, 1009 (9th Cir. 1996) (citing Fed.R.Evid. 501). State privilege law may be considered if "enlightening," Tennenbaum v. Deloitte & Touche, 77 F.3d 337, 340 (9th Cir. 1996), or if useful "to fill in gaps in federal common law." Speaker v. County of San Bernardino, 82 F. Supp.2d 1105, 1109 (C.D.Cal. 2000); see also Fed.R.Evid. 501, advisory committee notes (taking note that in some situations a federal court may "adopt[ ] or incorporate[ ] state law to fill interstices or gaps"). However, "state law cannot supply the rule of decision." Speaker, 82 F. Supp.2d at 1109 (C.D.Cal. 2000). As stated by the Ninth Circuit: "In determining the federal law of privilege in a federal question case, absent a controlling statute, a federal court may consider state privilege law. But the rule ultimately adopted, whatever its substance, is not state law but federal common law." Lewis v. United States, 517 F.2d 236, 237 (9th Cir. 1975).

B. Deliberative Process Privilege

Federal common law recognizes the deliberative process privilege. Under the privilege, a government can withhold documents or prevent testimony that "reflect[s] advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated." FTC v. Warner Communications, 742 F.2d 1156, 1161 (9th Cir. 1984). The purpose of the privilege is "to promote frank and independent discussion among those responsible for making governmental decisions and also to protect against premature disclosure of proposed . . . policies or decisions."*fn1 Id.

The Supreme Court has expressly recognized the privilege with respect to the decisionmaking processes of government agencies. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148-53, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (discussing privilege).*fn2 Many lower courts have also extended the privilege to protect the decisionmaking processes of local legislators, reasoning that, "[i]n terms of the alleged need for secrecy surrounding deliberations, there is no principled distinction between [local legislators] and those government officials who currently enjoy a deliberative process privilege." United States v. Irvin, 127 F.R.D. 169, 172 (C.D.Cal. 1989); see also In re Grand Jury, 821 F.2d 946, 958-59 (3d Cir. 1987) (in dictum, stating that deliberative process privilege for executive officials "provides a useful analogy for a confidentiality-based privilege for state legislators because executive agencies, like state legislators, engage in a wide variety of activities, including factual investigations for quasi-legislative rulemaking."). But see Corporacion Insular de Seguros v. Garcia, 709 F. Supp. 288, 298 (D.P.R. 1989) (refusing "to hold that a deliberative process privilege protects state legislators" because "[t]here are too many potentially detrimental ramifications to applying a confidentiality-based privilege to a governmental body that should continually remain open to the legitimate scrutiny of its constituents"). The Court agrees that the deliberative process privilege applies not only to agencies but also local legislators.

Whether agencies or local legislators are involved, there are two requirements to establish the applicability of the privilege. First, the document or testimony "must be predecisional — i.e., it must have been generated before the adoption of [a] policy or decision." FTC, 742 F.2d at 1161; Sears, 421 U.S. at 152, 95 S.Ct. 1504 (noting that "communications made after the decision and designed to explain it" are not privileged). Second, the document or testimony "must be deliberative in nature, containing opinions, recommendations, or advice about . . . policies [or decisions]." FTC, 742 F.2d at 1161. "Purely factual material that does not reflect deliberative processes is not protected"; however, factual material that "is so interwoven with the deliberative material that it is not severable" is protected. Id.; see also Sanchez v. Johnson, No. C-00-1593 CW (JCS), 2001 WL 1870308, at *5 (N.D.Cal. Nov. 19, 2001) ("[T]he fact/opinion distinction should not be applied mechanically. Rather, the relevant inquiry is whether `revealing the information exposes the deliberative process.'").

The burden of establishing application of the privilege is on the party asserting it. See Newport, 200 F.R.D. at 636. Even if established, the privilege is "strictly confined within the narrowest possible limits consistent with the logic of its principles." Sanchez, 2001 WL 1870308, at *6 (internal quotation marks omitted). Moreover, even if established, the privilege can be overcome because it is a qualified privilege; that is, "[a] litigant may obtain deliberative materials [or information] if his or her need for the materials [or information] and the need for accurate fact-finding override the government's interest in non-disclosure." FTC, 742 F.2d at 1161.

In deciding whether the qualified deliberative process privilege should be overcome, a court may consider the following factors: (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. See id. Other factors that a court may consider include: (5) the interest of the litigant, and ultimately society, in accurate judicial fact finding, (6) the seriousness of the litigation and the issues involved, (7) the presence of issues concerning alleged governmental misconduct, and (8) the federal interest in the enforcement of federal law. See Irvin, 127 F.R.D. at 173.

Related to the deliberative process privilege — indeed, perhaps inherently part of it — is what has sometimes been called the mental process privilege. See Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 325 (D.D.C. 1966) (noting that "the immunity of intra-governmental opinions and deliberations . . . rests upon another policy of equal vitality and scope" — i.e., the protection of the mental processes of executive or administrative officials). This related privilege, ...


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