The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION RE PLAINTIFFS' MOTION TO COMPEL DOCUMENTS WITHHELD BASED ON DELIBERATIVE PROCESS PRIVILEGE (DOC. 87.)
Plaintiffs move to compel production of 39 documents withheld under the deliberative process privilege. Doc. 87. Counsel unsuccessfully attempted in good faith to resolve the disputed issues, and the parties submitted a joint statement of their dispute. Doc. 87-2. The documents at issue have been produced for in camera review. See Doc. 93. Oral argument was heard on September 10, 2009. Doc. 95.
This case involves a challenge to California's Department of Fish and Game's ("CDFG") enforcement of state sportfishing regulations affecting striped bass populations in the Sacramento-San Joaquin Delta ("striped bass regulations"). Plaintiffs allege that CDFG's enforcement of these regulations violates Section 9 of the Endangered Species Act ("ESA"), because striped bass prey upon four species listed under the ESA, namely, the Sacramento River winter-run Chinook salmon, Central Valley spring-run Chinook salmon, Central Valley steelhead, and delta smelt ("Listed Species"). With respect to the instant motion, the disputed factual issues include:
1. The extent of striped bass predation on the Listed Species;
2. Whether the striped bass regulations result in a larger striped bass population than there would be absent the regulations; and
3. Whether the striped bass regulations increase striped bass predation on the Listed Species.
III.THE DISCOVERY AT ISSUE
The documents in dispute here were withheld from responses to Plaintiffs' first, second, fourth, and fifth requests for production. Plaintiffs served their first request for production on October 30, 2008. Defendant served its response on January 9, 2009, and a Supplemental Response on March 16, 2009. Neither response asserted the deliberative process privilege.
Plaintiffs served their second request for production on February 5, 2009. Defendant served its response on March 15, 2009, but did not assert the deliberative process privilege at that time.
Plaintiffs served their fourth request for production on June 3, 2009. Defendant responded July 8, 2009, to which Defendant generally asserted the deliberative process privilege in response to RFPs 59 & 60:
Defendant objects to this request on the grounds that it is overbroad, seeks information that is not relevant to the subject matter litigation and not reasonably calculated to lead to the discovery of admissible evidence, and seeks production of information that is privileged by the attorney/client privilege, attorney workproduce privilege, and/or the deliberative process privilege.
Doc. 87-2 at 11-12 (emphasis added).
Plaintiffs served their fifth request for production on June 25, 2009. Defendant served its response on August 7, 2009, and in response to RFP #76, generally asserted the deliberative process privilege:
Defendant objects to this request to the extent [it] seeks information that is protected by the attorney/client privilege, the attorney workproduce privilege, or the deliberative process privilege, or any combination of these....
Defendant eventually produced a privilege log, which detailed the grounds upon which the disputed documents were withheld:
* Documents 34 through 44 and 46 through 54 are emails between CDFG staff reflecting advisory opinions, recommendations, and deliberations relating to the issue of whether CDFG should recommend amendments to the Striped Bass Policy to the California Fish and Game Commission ("CFGF").
* Document 45 is an email between CDFG staff reflecting advisory opinions, recommendations, and deliberations relating to the issue of whether CDFG should recommend changes to the striped bass slot limit to CFGF.
* Documents 46 and 47 also included within the first category, are emails between CDFG staff reflecting advisory opinions, recommendations and deliberations relating to a petition to uplist the Delta Smelt to endangered status under the California Endangered Species Act.
* Documents Nos. 62, 68, 73, and 75 through 89 are drafts of bill analyses prepared for the Governor's Office and emails between CDFG staff reflecting advisory opinions, recommendations, and deliberations relating to what position CDFG should take in connection with Assembly Bill 1253.
A. Summary of Plaintiffs' Position
(1) Defendant failed to make a timely and specific objection based on the deliberative process privilege, which waived the privilege; (2) Defendant failed to comply with the procedural requirements necessary for invoking this privilege, thereby waiving the privilege; (3) Defendant failed to demonstrate the two essential elements of the privilege:
(i) that the disputed documents are predecisional, and (ii) that they are deliberative in nature; (4) Even if the documents are covered by the qualified deliberative process privilege, Plaintiffs' need for the documents and the public interest in their disclosure outweigh the CDFG's interest in secrecy; and (5) Even if the documents and/or groups of documents are subject to this qualified privilege, the factual material in these documents should be separated and produced.
B. Timeliness of Assertion of the Privilege
Rule 34(b)(2) requires a party to respond to a request for production within 30 days, and the response must "either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons." Fed. R. Civ. P. 34(b)(2)(B). Rule 26(b)(5)(A) provides that, when claiming a privilege, a party must "(i) expressly make the claim; and (ii) describe the nature of the documents, communications, or other tangible things not produced or disclosed -- and do so in a manner that, without revealing information itself privileged or protected, will enable the other party to assess the claim." Rule 26(b)(5)(A). Rule 34 provides that, when objecting to a request to produce documents, the responding party's objection "must specify the part and permit inspection of the rest." Rule 34(b)(2)(C).
Plaintiffs complain (1) that Defendants failure to assert the deliberative process privilege in their initial responses to certain RFPs constitutes per se waiver, and (2) that Defendants' subsequent production of a privilege log seven months after ...