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Leadholm v. City of Commerce City

United States District Court, D. Colorado

September 1, 2017



          Michael E. Hegarty, United States Magistrate Judge.

         The Court has set forth the background and facts of this case in previous orders and, thus, need not repeat all of them here. However, pertinent to the present matter, the Plaintiff has alleged Defendant City of Commerce City's use of force policy is “inadequate” as “evidenced by a letter . . . written to Director Ronald Davis of the Department of Justice [“DOJ”].” Am. Compl. ¶ 25. The letter, dated July 18, 2016 and executed by Commerce City's mayor, city manager, and interim chief of police, sought “assistance from the Department of Justice's Community Oriented Policing Division's Technical Assistance Program for Collaborative Reform.” ECF No. 43-2. Plaintiff alleges that the “Justice Department's office of Community Oriented Police Services agreed to take on the review.” Am. Compl. ¶ 26.

         In light of the letter and Plaintiff's allegations, Plaintiff sought through discovery “all underlying ‘reasons, ' materials, and communications relating to the DOJ collaborative audit, and identification of all Department and DOJ personnel involved in any way in the audit.” Mot. 3. Here, Defendants seek protection from producing such information pursuant to the deliberative process privilege; Plaintiff counters that the privilege does not apply. The Court finds that it must review the withheld documents in camera to determine whether they are protected by the deliberative process privilege and, thus, the motion will be granted in part and denied without prejudice in part.

         I. Legal Standards

         Rule 26(b)(5) of the Federal Rules of Civil Procedure governs the withholding and production of privileged materials in a federal lawsuit. As pertinent here, Rule 26(b)(5) states:

(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed - and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
(B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

Fed. R. Civ. P. 26(b)(5). In federal question cases such as this one, federal law controls the issues of privilege raised by the parties, [1] and federal common law recognizes the deliberate process privilege.[2]

         The deliberative process privilege “covers documents reflecting advisory opinions, recommendations, and deliberations that are part of a process by which governmental decisions and policies are formulated.” U.S. Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001). The 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.” Id.; see also Casad v. U.S. Dep't of Health & Human Servs., 301 F.3d 1247, 1251 (10th Cir. 2002). The privilege serves the secondary purpose of “prevent[ing] the premature disclosure of proposed policies, and avoids ‘misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action.'” Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007) (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)).

          To qualify for protection under the privilege, the party seeking to invoke the privilege bears the burden of proving that the documents at issue are both pre-decisional and deliberative. Id. at 1227 (citations omitted). A document is pre-decisional if it is “‘prepared in order to assist an agency decisionmaker in arriving at his decision.'” Id. (quoting Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184 (1975)). In Casad, the Tenth Circuit cited two factors that are “helpful” in determining whether a document is pre-decisional: (1) “the ‘nature of the decisionmaking authority vested in the officer or person issuing the disputed document;'” and (2) “the relative positions in the agency's ‘chain of command' occupied by the document's author and recipient.” Casad, 301 F.3d at 1252 (citations omitted).

         Documents that are deliberative and, therefore, covered under the privilege 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.” Coastal States Gas Corp., 617 F.2d 866. Factual materials do not qualify as deliberative unless their “disclosure ‘would so expose the deliberative process within an agency that it must be deemed exempted.'” Trentadue, 501 F.3d at 1228 (quoting Mead Data, Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977)). The Tenth Circuit exempts certain factual materials only if (1) “they are inextricably intertwined with deliberative materials” or (2) “their disclosure would reveal deliberative material.” Id. at 1229.

         If the government succeeds in carrying its burden demonstrating that the subject documents are privileged, the court must decide whether the privilege is overcome by the requesting party's showing of need. In re Sealed Case, 121 F.3d at 737. Factors to be considered in balancing the interests of the government with the needs of the party seeking disclosure include the documents' relevance, the availability of other evidence, the ...

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