Bigelow v. District of Columbia

122 F.R.D. 111, 15 Media L. Rep. (BNA) 2143, 12 Fed. R. Serv. 3d 470, 1988 U.S. Dist. LEXIS 13635, 1988 WL 112095
District Court, District of Columbia·Decided October 19, 1988·No. Civ. A. No. 87-0118 (JHP/PJA)·Published·Cited by 4 cases

Opinion

MEMORANDUM OPINION

PATRICK J. ATTRIDGE, United States Magistrate.

The Detroit News, Inc., owner and licensee of WUSA-TV (Channel 9), seeks leave to intervene in these proceedings in order to vacate a protective order stipulated to by the parties, and approved by the Court, wherein Plaintiffs’ counsel agreed to keep confidential certain documents received by them from the Defendant District of Columbia and also to obtain access to certain material filed under seal.

[112]*112In its memorandum in reply to the Defendant’s opposition to its motion to intervene, Channel 9 clarified its request by stating it “seeks only access to materials filed with the Court” (P. 1). Moreover, Channel 9 agrees that to the extent the sealed material tends to identify confidential sources of information, such information “may legitimately be protected from public disclosure.”

The discovery materials furnished Plaintiffs’ counsel consisted of internal Metropolitan Police Department reports of an investigation and evaluation of an unlawful narcotics distribution undercover operation, code named “Operation Caribbean Cruise.” None of this material was filed with the Court. Nor were any depositions, answers to interrogatories or responses to requests for production of documents containing alleged confidential or privileged material filed with the Court under seal.

The only Court sealed material consisted of Defendants’ Memorandum in Opposition to Plaintiffs’ Motion to Compel Discovery (docket no. 145); Plaintiffs’ Reply to Defendants’ Opposition to Motion to Compel (docket no. 158); Plaintiffs’ Motion for Leave to File Motion in Limine (docket nos. 171 and 173); Plaintiffs’ Memorandum in Support of Their Motion in Limine (docket no. 172); and Plaintiffs’ Opposition to Defendants’ Motion for a Limited Protective Order (docket no. 182).

At the Court’s request, counsel for the parties reviewed the sealed documents to determine if they would voluntarily agree to unseal any of this material. Counsel agreed to the unsealing of Plaintiffs’ Motion to Compel (docket no. 145), and Plaintiffs’ Motion for Leave to File Motion in Limine (docket nos. 171 and 173). Moreover, the Defendants agreed to unseal the remaining pleadings on the condition that a quotation on page 4 of the Plaintiffs’ Opposition to the Defendants’ Motion for a Protective Order (docket no. 182) be redacted; that the Metropolitan Police Department Internal Affairs Division (IAD) investigative report be redacted;1 and lastly, that two quotations found in the Plaintiffs’ Reply to the Defendants’ Opposition (docket no. 158) be redacted.

Right to Intervene

Although the defendants’ contend that Channel 9 has no standing to intervene, they do not argue that position. Instead, they strongly urge that Channel 9 has no right of access to pretrial discovery material. But this potential issue was later defused when Channel 9 agreed to limit its request to materials filed with the Court under seal.

It is generally recognized that the public has a common law right to inspect and copy judicial records, Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), particularly pleadings and motions upon which the court is called upon to act because it enhances public understanding and promotes public confidence in the judicial system. Littlejohn v. BIC Corp., 851 F.2d 673, 677-78 (3d Cir.1988), Mokhiber v. Davis, 537 A.2d 1100, 1112 (D.C.App.1988). That right is generally exercised by filing a motion to intervene pursuant to Fed.R.Civ.P. 24 and usually granted provided it is “timely”. Littlejohn, 851 F.2d at 677 n. 7; In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325 (D.C.Cir.1985); and Mokhiber, 537 A.2d at 1104. There is no question regarding the timeliness of Channel 9’s motion, therefore, the motion to intervene will be granted.

Contentions

The defendants contend that certain portions of the IAD report, and lengthy quotations contained in two of the three remaining sealed motions are expressions of opinion and recommendations and, therefore, are subject to the deliberative process privilege. They also contend that a portion of a footnote containing information that could tend to identify an informer is subject to the law enforcement privilege.

[113]*113In support of these assertions, the defendants tender an affidavit from the Chief of Police of the Metropolitan Police Department which states that he has personally reviewed the disputed materials, that he relies on this type of information to help him formulate final decisions, and that the disclosure of the opinions of investigators and the results of their investigations could inhibit future investigations and impair free and frank discussions so vital to the decision making process.

In response, Channel 9 asserts that the information it seeks has been disclosed to plaintiffs’ counsel, their staff and expert witnesses and, therefore, the privileges, to the extent they may be applicable, have been waived. Moreover, Channel 9 argues, the defendants’ privilege assertion and the affidavit of Chief Turner are vague and conclusory and fail to show just how the information sought to be protected is exempt from disclosure by reason of either privilege.

Discussion

The Deliberative Process Privilege

The deliberative process privilege is not absolute, but rather a qualified one. Its application necessitates a balancing of protected intra-governmental advisory and deliberative communications containing frank discussions and exchanges vitally necessary to the decision and policy making process against a demonstrated need for disclosure. Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 404-05 (D.C.Cir.1984), Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966), aff'd, 384 F.2d 979 (D.C.Cir.), cert. denied, 389 U.S. 952, 88 S.Ct. 334, 19 L.Ed. 2d 361 (1967).

In order to properly invoke the privilege, the head of the agency which controls the information must file a formal claim of privilege which shall describe the documents involved, affirmatively state that he or she has reviewed the documents and set forth an assessment of the likely consequences if the information is disclosed. Northrop Corp., 751 F.2d at 405, n. 11.

The affidavit of Chief Turner filed as a supplement to the defendants’ opposition to Channel 9’s motion complies with the requirements for formally invoking the privilege. Nonetheless, it stops short of describing to one who has not seen the document exactly what information is sought to be protected.

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Bigelow v. District of Columbia, 122 F.R.D. 111, 15 Media L. Rep. (BNA) 2143, 12 Fed. R. Serv. 3d 470, 1988 U.S. Dist. LEXIS 13635, 1988 WL 112095 (D.D.C. 1988).

122 F.R.D. 111 (Bigelow v. District of Columbia) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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