California Native Plant Society v. United States Environmental Protection Agency

251 F.R.D. 408, 2008 U.S. Dist. LEXIS 81871
CourtDistrict Court, N.D. California
DecidedApril 3, 2008
DocketNo. C06-03604 MJJ
StatusPublished
Cited by8 cases

This text of 251 F.R.D. 408 (California Native Plant Society v. United States Environmental Protection Agency) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
California Native Plant Society v. United States Environmental Protection Agency, 251 F.R.D. 408, 2008 U.S. Dist. LEXIS 81871 (N.D. Cal. 2008).

Opinion

ORDER REGARDING DISPUTES OVER JURISDICTIONAL DISCOVERY

MARTIN J. JENKINS, District Judge.

INTRODUCTION

Before the Court are several discovery-disputes raised by letter briefs from Plaintiffs California Native Plant Society, Defenders of Wildlife, and Butte Environmental Council (collectively “Plaintiffs”) and federal agency Defendants Environmental Protection Agency (“EPA”), U.S. Army Corps of Engineers (“Corps”), and U.S. Fish and Wildlife Service (“FWS”) (collectively “Agencies”).

The letter briefs contest whether Agencies correctly withheld documents from discovery based on the deliberative process privilege, and whether Agencies adequately answered certain of Plaintiffs’ interrogatories. Regarding the deliberative process privilege, Plaintiffs request that the Court either order Agencies to produce the documents in dispute, or order in camera review to determine whether the documents should be disclosed. (Plaintiffs’ Jan. 25, 2008 Letter Brief (“Pis.’ Letter”) at 3, 5.) Regarding the interrogatories, Plaintiffs request that the Court order Agencies to respond more fully. (Id. at 4-5.) Agencies contend they both appropriately invoked the deliberative process privilege and should not be required to answer the interrogatories more fully. (Defendants’ Jan. 25, 2008 Letter Brief (“Defs.’ Letter”) at 2-5.)

For the following reasons, the Court ORDERS Agencies to supplement their privilege logs with more detailed information as to how the documents in question fit into the deliberative process. The Court additionally ORDERS FWS and Corps to respond more fully to Interrogatory No. 20, and EPA to respond more fully to Interrogatory No. 21. In all other respects, the Court denies the relief sought by Plaintiffs.

FACTUAL BACKGROUND

Plaintiffs filed suit for declaratory and injunctive relief, claiming that Agencies violated several federal laws when approving a Conceptual Strategy for the Sunrise Douglas development area. (See Third Amended Complaint at 1-2.) In particular, Plaintiffs allege Agencies violated the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), Clean Water Act, and Administrative Procedures Act. (Id. at 16-21.) Plaintiffs moved for, and the Court granted, limited discovery in order to provide the factual basis required to establish subject matter jurisdiction. (August 29, 2007 Order After Hrg. (“Aug. 29 Order”) at 1; see also Mem. in Support of Mot. to Conduct Jurisdictional Discovery (“Mem. In Support of Discovery”).) Specifically, Plaintiffs seek to show that the Conceptual Strategy constitutes a “final agency action.” (See Mem. In Support of Discovery.) In response to Plaintiffs’ discovery requests, Agencies claimed the deliberative process privilege for a number of documents, and took issue with a number of Plaintiffs’ interrogatories.

LEGAL STANDARD

Rule 26 of the Federal Rules of Civil Procedure allows discovery of non-privileged relevant documents. See Fed.R.Civ.P. 26. Courts may narrow the scope of this discovery, and Rule 26 should not be interpreted to authorize “fishing expeditions.” See Fed.R.Civ.P. 26(b)(2)(C); see also Groom v. Standard Ins. Co., 492 F.Supp.2d 1202, 1205-06 (C.D.Cal.2007) (limiting discovery to certain aspects pertinent to the decision-making process).

When deciding which documents are privileged as part of the deliberative process, and thus exempt from discovery, courts should construe the privilege narrowly and strictly. Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854, 868 (D.C.Cir.1980); see also Dowling v. Am. Haw. Cruises, Inc., 971 F.2d 423, 425 (9th Cir.1992) (discussing privileges generally). In camera review is an appropriate method for courts to consider the applicability of the deliberative process privilege. See Nat'l Wildlife Fed’n v. U.S. Forest Service, 861 F.2d 1114, 1116 [411]*411(9th Cir.1988) (holding that the district court appropriately reviewed documents in camera, on remand to do so). However, agencies should be given the opportunity to prove, by other means, that the privilege applies. E.P.A v. Mink, 410 U.S. 73, 93, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) (“[I]n some situations, in camera inspection will be necessary and appropriate. But it need not be automatic.”).

DISCUSSION

I. Deliberative Process Privilege

Plaintiffs object to Agencies’ invocation of the deliberative process privilege to protect documents from discovery. Plaintiffs claim that: (1) Agencies’ invocation of the deliberative process privilege goes to show that the action in question was a “final agency action;” (2) Agencies’ privilege logs were inadequate to claim the privilege; and (3) in the alternative, if Agencies appropriately asserted the privilege, it is qualified, and Plaintiffs’ need for the documents outweighs the privilege. (Pis.’ Letter at 1-3.)

The deliberative process privilege allows the government to withhold from discovery agency documents consisting of deliberative analysis preceding agency decisions. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-51, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); Carter v. U.S. Dept. of Commerce, 307 F.3d 1084, 1088-89 (9th Cir.2002); F.T.C. v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir.1984).1 The privilege is intended to promote frank, honest communications among government employees in order to promote well-vetted policies. See Sears, 421 U.S. at 150-51, 95 S.Ct. 1504. Underlying the privilege is the belief that “ ‘those who expect public dissemination of their remarks may well temper candor with a concern for appearances ... to the detriment of the decision making process.’ ” Id. (citing United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)).

An agency must show that a document is both pre-decisional and deliberative in order to qualify for the deliberative process privilege. See Warner, 742 F.2d at 1161; Carter, 307 F.3d at 1089. A document is “pre-decisional” if it predates a decision and was prepared to assist in making the decision. See Renegotiation Bd. v. Grumman Aircraft Eng’g Corp.,

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251 F.R.D. 408, 2008 U.S. Dist. LEXIS 81871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/california-native-plant-society-v-united-states-environmental-protection-cand-2008.