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Swartwood v. County of San Diego

United States District Court, Ninth Circuit

December 18, 2013

STEVEN SWARTWOOD; JOANNA SWARTWOOD; R.S., a minor; D.S., a minor, Plaintiffs,


BERNARD G. SKOMAL, Magistrate Judge.

Before the Court is Plaintiffs' motion to compel documents over which Defendants have asserted the deliberative process, official information and attorney-client privileges. (Doc. No. 30.) Having considered the parties' briefs and accompanying submissions, the Court grants Plaintiffs' motion in part and denies it in part.

I. Background

This is an action filed under 42 U.S.C. § 1983 for civil rights violations and the matter includes a cause of action pursuant to Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658 (1978). (Compl., Doc. No. 1.) In addition, Plaintiffs have pendent state claims for assault, battery, false imprisonment, intentional infliction of emotional distress, as well as violations of state civil rights laws. ( Id. ) Specifically, Plaintiffs Steven and Joanna Swartwood, along with their two minor children through their guardian ad litem, allege Defendants violated their constitutional rights by wrongfully removing and detaining the two children from May 17, 2011 to May 19, 2012. ( Id. ) Plaintiffs also allege Defendants conducted an illegal and intrusive physical examination of the children without the parents' presence or consent. ( Id. )

Plaintiffs move to compel disclosure of: (1) approximately 11 lines of text redacted from documents prepared as a result of the Office of the Ombudsman's investigation into Plaintiffs' complaints against the social worker who removed the children, and (2) a line of redacted text from an email stream.[1] (Pls.' Mot. To Compel; Doc. No. 30.)

II. Discussion

A. Discovery Legal Standard

Federal Rule of Civil Procedure 26 governs the scope of discovery, and provides "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). Federal privilege law applies in this federal question case. NLRB v. North Bay Plumbing, Inc., 102 F.3d 1005, 1009 (9th Cir.1996) (citing Fed.R.Evid. 501.)

B. Analysis of Claimed Privileges

1. Deliberative Process Privilege

Defendants asserted the Deliberative Process Privilege as a basis to withhold 11 tines of text reflecting the findings and conclusions of an investigation by the Health and Human Services Agency's special unit, the Office of the Ombudsman ("Ombuds"). The Ombuds is comprised of a group of four employees that work under the umbrella of the Health and Human Services Agency ("Agency"). The Ombuds independently investigate complaints made against social workers and report the results of those investigations to the Agency's department of Child Welfare Services. (Zanders-Willis Decl. at ¶¶ 1, 3; Doc. No. 33-2.) Here, the Ombuds conducted an investigation into the actions of the social worker who removed Plaintiffs' minor children from the home and it is the investigators' conclusions and recommendations regarding the social worker's actions in this matter at issue in this privilege dispute. ( Id. at ¶ 12.)

Federal law recognizes the deliberative process privilege, which shields confidential inter-agency memoranda on matters of law or policy from public disclosure. Nat'l Wildlife Fed'n v. U.S. Forest Serv., 861 F.2d 1114, 1116 (9th Cir.1988). Under the privilege, a government may withhold documents that "reflect advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated." FTC v. Warner Commc'ns Inc., 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." Id. (citations omitted).

In order to be protected by the deliberative-process privilege, "a document must be both (1) predecisional or antecedent to the adoption of agency policy and (2) deliberative, meaning it must actually be related to the process by which policies are formulated." United States v. Fernandez, 231 F.3d 1240, 1246 (9th Cir.2000). Notably, even when the deliberative process privilege applies, the privilege is a qualified one and if a litigant's need for the materials and need for accurate fact-finding outweigh the government's interest in confidentiality, the materials will be disclosed. FTC, 742 F.2d at 1161.

a. Predecisional

A "predecisional" document is one "prepared in order to assist an agency decisionmaker in arriving at his decision, " and may include "recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Maricopa Audubon Soc'y v. U.S. Forest Serv., 108 F.3d 1089, 1093 (9th Cir.1997). Moreover, "the agency must identify a specific decision to which the document is predecisional." Id. at 1094.

The declarations submitted by Defendants indicate the redacted lines of text contained in the Office of Ombudsman Brief Case Review: Swartwood Family, constitute a predecisional document because the Ombuds investigator's findings and recommendations precede any ultimate action such as revision of policies or procedures. (Zanders Decl.; Doc. No. 33-2, Hoene Decl.; Doc. No. 33-3.) The decision to revise policies and procedures would not be made by Ombuds investiga-tors, those decisions are ultimately made by Agency management. ( Id. ) Thus, this order finds that the Office of Ombudsman, Brief Case Review ...

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