United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones United States District Judge.
matter comes before the Court again on Plaintiffs' Motion
to Compel re Deliberative Process Privilege and
Defendants' Unopposed Motion for Reconsideration Waiver
of Privilege. Dkt. ## 152, 230. For the reasons stated below,
the Court DENIES Plaintiffs' Motion to
Compel as to the Paragraph 17 documents and
GRANTS Defendants' Motion for
21, 2018, the Court granted in part Plaintiffs' Motion to
Compel, but reserved ruling on portions of the Motion pending
supplemental briefing from the parties. Dkt. # 189. The
parties then submitted supplemental briefing, and the Court
held a telephonic conference with the parties to discuss the
status of this Motion. Dkt. ## 194, 198, 199, 211. In the
Court's May 21 Order, the Court granted Plaintiffs'
Motion to Compel as to a number of documents the Court
determined were not shielded by the deliberate process
privilege. Dkt. # 189 at 9. The Court determined that the
Plaintiffs did not previously have access to the Emrich
Affidavit (Dkt. # 174-3), and ordered the parties to submit
supplemental briefing whereby Plaintiff could more precisely
challenge the remaining privilege assertions. Id.
their supplemental briefing, the parties identified only two
additional sets of documents to be subject to Plaintiffs'
Motion: (1) documents identified in Paragraph 17 of the
Emrich Affidavit; and (2) documents identified in Paragraph
45 of the Emrich Affidavit. Dkt. ## 194, 198. The parties
clarified, first in Defendants' supplemental brief, and
again in Plaintiff's supplemental reply, that Plaintiffs
no longer sought documents identified in Paragraph 45. In the
telephonic conference on December 18, 2018, the parties again
confirmed that they had narrowed this dispute to one category
of documents, certain pre-CARRP draft policy memoranda listed
in Paragraph 17 of the Emrich affidavit (Dkt. # 174-3).
Accordingly, on February 27, 2019, the Court denied
Plaintiffs' Motion to Compel as to the Paragraph 45
documents. Dkt. # 224 at 2.
the Paragraph 17 documents, the parties agreed to submit a
portion of the remain documents for in camera
review, following a randomization procedure which the Court
approved of. See Dkt. # 224 at 2-3. Instead of
following this randomization procedure, Defendants provided
“four documents previously shared with Plaintiffs
during the parties' deliberative process privilege
negotiations for the Court's in camera review in relation
to Dkt. #152.” Dkt. # 212 at 2. Due to the lapse in
appropriations, Defendants' submission of the four
documents occurred instead on February 5, 2019. Dkt. # 218.
four-document sample did not comport with the randomization
procedure the parties agreed upon, the Court ruled that it
could not determine whether all the Paragraph 17 documents
were subject to the deliberative process privilege. Dkt. #
224 at 3. The Court ordered Defendants to produce a
randomly-selected sample of 10 documents from Paragraph 17 of
the Emrich Affidavit for in camera review for this
Court, and to provide a supporting affidavit of the
randomization procedure used. Id. The Court also
ruled that for the four documents already shared with
Plaintiffs, the claimed privilege was waived. Id.
March 12, 2019, Defendants made the requested submission.
Dkt. # 229. The day after, Defendants filed an Unopposed
Motion for Reconsideration of the Court's ruling that
privilege was waived for the four documents already shared
with Plaintiffs. Dkt. # 230. Defendants argue that Plaintiffs
agreed, as part of the parties' discovery deliberations,
that privilege would not be waived by virtue of
Defendants' disclosure of the four documents.
Court has reviewed the documents produced by Defendants. The
Court confirms that the deliberative process privilege
applies to these documents because they are (1) predecisional
and (2) deliberative in nature, in that they concern
“opinions, recommendations, [and] advice about agency
policies.” F.T.C. v. Warner Connc'ns Inc.,
742 F.2d 1156, 1161 (9th Cir. 1984). The Court thus turns
next to the four F.T.C. factors to determine whether
to pierce the privilege, which are “(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.” F.T.C., 742 F.2d at 1161. The
Court will address each in turn.
Court believes that the balance of factors weighs against
compelling production of the Paragraph 17 documents. As
Defendants note, the Paragraph 17 documents were never
finalized, adopted, or implemented, and have little bearing
on how CARRP operates today. After reviewing the documents
provided by Defendants, the Court does not believe these
predecisional documents would be particularly helpful in
ascertaining whether Defendants are currently administering
CARRP in a discriminatory fashion. Moreover, Defendants have
provided Plaintiffs with a number of other documents that
explain existing CARRP policy. See, e.g., Dkt. #
198-2. The Court accordingly does not believe the Paragraph
17 documents are necessary to ascertain the motives or
operations behind the current CARRP policies and procedures.
Lastly, the Court believes the fourth factor, which generally
“weighs in factor of the privilege and nondisclosure,
” weighs in favor of Defendants, who articulate in
sworn affidavits the serious danger of public disclosure,
whether intentional or inadvertent. All. for the Wild
Rockies v. Pena, No. 2:16-CV-294-RMP, 2017 WL 8778579,
at *8 (E.D. Wash. Dec. 12, 2017).
Defendants' Unopposed Motion for Reconsideration,
“motions for reconsideration are disfavored.” LCR
7(h)(1). “The court will ordinarily deny such motions
in the absence of a showing of manifest error in the prior
ruling or a showing of new facts or legal authority which
could not have been brought to its attention earlier with
reasonable diligence.” Id. Based on
Defendants' submission, there seems to be little dispute
that Plaintiffs agreed that the disclosure of the four
documents in question would not waive privilege as to those
documents. The Court will thus revise its ruling, and holds
that privilege for these documents was not waived.
the Court hereby DENIES Plaintiff's
Motion to Compel as to the Paragraph 17 documents. Dkt. #
152. The Court GRANTS Defendants'