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Wagafe v. Trump

United States District Court, W.D. Washington, Seattle

May 21, 2018

ABDIQAFAR WAGAFE, et al., Plaintiffs,
v.
DONALD TRUMP, et al., Defendants.

          ORDER

          The Honorable Richard A. Jones United States District Judge.

         This matter comes before the Court on Plaintiffs' motion to compel re deliberative process privilege. Dkt. # 152. Defendants oppose the motion. Dkt. # 174. For the reasons that follow, the Court reserves ruling on the motion pending supplemental briefing.

         I. BACKGROUND

         The parties are in the midst of discovery. The Government has claimed that many of the documents that Plaintiffs request are subject to the deliberative process privilege. Plaintiffs object to the assertion of this privilege and now move the Court to compel these documents.

         II. LEGAL STANDARD

         The deliberative process privilege may be invoked to protect “documents ‘reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'” N. L. R. B. v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (citation omitted). “The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance ‘the quality of agency decisions' by protecting open and frank discussion among those who make them within the Government.” Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001) (citations omitted). For the deliberative process privilege to apply, the document must be (1) predecisional and (2) “deliberative in nature, containing opinions, recommendations, or advice about agency policies.” F.T.C. v. Warner Commc'ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). “Purely factual material that does not reflect deliberative processes is not protected.” Id.

         The privilege is not absolute, and the party seeking to invoke the privilege carries the burden to establish its applicability. Greenpeace v. Nat'l Marine Fisheries Serv., 198 F.R.D. 540, 543 (W.D. Wash. 2000). An opposing party can overcome the privilege by showing that “his or her need for the materials and the need for accurate fact-finding override the government's interest in non-disclosure.” F.T.C., 742 F.2d at 1161. In determining whether to pierce the privilege, courts consider several factors, including: “(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.

         The privilege may be inapplicable where the decision-making process is itself at issue. Greenpeace, 198 F.R.D. at 543; see also United States v. Lake Cty. Bd. of Comm'rs, 233 F.R.D. 523, 526 (N.D. Ind. 2005) (“Thus, the deliberative process privilege simply does not apply in civil rights cases in which the defendant's intent to discriminate is at issue.”); Mr. & Mrs. B v. Bd. of Educ. of Syosset Cent. Sch. Dist., 35 F.Supp.2d 224, 230 (E.D.N.Y. 1998) (“For example, ‘[t]he privilege may be inapplicable where the agency's deliberations are among the central issues in the case.'”) (citation omitted).

         The Court of Appeals for the District of Columbia and several district courts have found that the privilege yields when alleged government misconduct has occurred. See In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998), on reh'g in part, 156 F.3d 1279 (D.C. Cir. 1998) (“Appellant's primary argument is that the common law deliberative process privilege is not appropriately asserted-as the district court in Massachusetts appeared to recognize-when a plaintiff's cause of action turns on the government's intent. We agree.”); In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997) (“Moreover, the privilege disappears altogether when there is any reason to believe government misconduct occurred.”); Lake Cty. Bd. of Comm'rs, 233 F.R.D. at 527 (“Nevertheless, the deliberative process privilege yields ‘when government misconduct is the focus of the lawsuit.'”) (citation omitted); Tri-State Hosp. Supply Corp. v. United States, 226 F.R.D. 118, 135 (D.D.C. 2005) (“Simply put, when there is reason to believe that government misconduct has occurred, the deliberative process privilege disappears.”).

         But courts within the Ninth Circuit have not uniformly adopted the misconduct exception; many district courts find it prudent to make their determinations based on the elemental balancing test described in F.T.C. v. Warner Communications. See, e.g., All. for the Wild Rockies v. Pena, No. 2:16-CV-294-RMP, 2017 WL 8778579, at *8 (E.D. Wash. Dec. 12, 2017) (analyzing any alleged bad faith on the part of the government as part of the F.T.C. factors); Arizona Dream Act Coal. v. Brewer, No. CV-12-02546-PHX-DGC, 2014 WL 171923, at *3 (D. Ariz. Jan. 15, 2014) (using the F.T.C. balancing test and finding that the government's intent and purpose in crafting policy were relevant); Vietnam Veterans of Am. v. C.I.A., No. 09-CV-0037 CW JSC, 2011 WL 4635139, at *10 (N.D. Cal. Oct. 5, 2011) (“The Court finds that it is unnecessary to decide this issue as DVA's intent is properly considered as a factor in the substantial need analysis . . . .”); Thomas v. Cate, 715 F.Supp.2d 1012, 1021 (E.D. Cal. 2010), order clarified, No. 1:05CV01198LJOJMDHC, 2010 WL 797019 (E.D. Cal. Mar. 5, 2010) (“Although this Court finds the reasoning set forth in cases such as In re Subpoena and Lake County highly persuasive, given the lack of binding Ninth Circuit authority on the matter, the Court adopts the balancing approach set forth in Warner Comm's.”).

         This Court agrees that the balancing approach in F.T.C. v. Warner Communications allows for a fair analysis of governmental intent or misconduct and therefore adopts a consistent approach with other courts in this circuit.

         III. DISCUSSION

         Plaintiffs argue that the deliberative process privilege is inapplicable because at issue is the Government's process in creating CARRP. Dkt. # 152 at 10-11. Even if the privilege is applicable, Plaintiffs argue that the balance tips in favor of disclosure. Id. at 11. The Government argues that the privilege is applicable to the selected documents because they are predecisional and deliberative, and Plaintiffs may only overcome the privilege by showing that their need for the information outweighs the Government's need for non-disclosure.

         The Court follows the approach described in F.T.C. and followed by district courts within this Circuit, and therefore rejects Plaintiffs' invitation to deny the deliberative process privilege based solely on allegations of misconduct. Accordingly, the Court must determine whether the Government properly ...


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