Daniel Saldana v. Martha Donovan

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

11 DANIEL SALDANA, No. 2:24-cv-00895-DSF-AJR

12 Plaintiff, MEMORANDUM DECISION v. 13 AND ORDER GRANTING IN PART AND DENYING IN PART 14 BRIAN ROBERTS, ET AL., PLAINTIFF’S MOTION TO COMPEL DOCUMENTS FROM 15 Defendants. DEFENDANTS ROBERTS AND STANTON (DKT. 89) 16

18 I. 19 INTRODUCTION 20 This is a civil rights lawsuit seeking damages for the wrongful incarceration 21 of Plaintiff Daniel Saldana (“Plaintiff”) who was exonerated after serving 33 years 22 in prison for a cime that he did not commit.1 (Dkt. 1 at 2.) Defendants Brian 23 Roberts, Keith Stanton, L.A. County, and Steven Sowders (collectively, 24

25 1 Plaintiff’s Complaint asserts a variety of civil rights claims under 42 U.S.C. § 1983, as well as related state law claims such as intentional infliction of emotional 26 distress, intentional interference with the right to obtain judicial review of legality of 27 confinement in violation of California Government Code § 845.4, negligence in violation of California Civil Code § 1714, and respondeat superior or vicarious 28 liability under California Government Code § 815.2. (Dkt. 1 at 28-40.) 1 Sowders was an assistant district attorney for L.A. County at all times relevant to 2 this case. (Dkt. 1 at 7.) The claims against Sowders are not based on any role he 3 had in Plaintiff’s prosecution, but instead, Sowders is alleged to have been present at 4 a parole hearing in 2017 where Plaintiff’s co-defendant Raul Vidal confessed to the 5 crime and testified that Plaintiff was innocent. (Id. at 23-24.) The claims against 6 Sowders, and vicariously against L.A. County, are based on the allegation that 7 Sowders did not take action to free Plaintiff after learning of his innocence. (Id. at 8 25-26.) Defendants Roberts and Stanton were commissioners for the Board of 9 Parole Hearings (“BPH”) at all times relevant to this case. (Id. at 6.) Both Roberts 10 and Stanton are similarly alleged to have been at the 2017 parole hearing where 11 Vidal confessed and testified that Plaintiff was innocent. (Id. at 23-24.) The claims 12 against Roberts and Stanton are similarly based on the allegation that they did not 13 take action to free Plaintiff after learning of his innocence. (Id. at 25-26.) 14 15 This case is now in the discovery phase with a Fact Discovery Cut-Off of 16 May 5, 2025. (Dkt. 62 at 1.) Presently before the Court is a dispute related to the 17 production of 5 categories of emails by defendants Roberts and Stanton. (Dkt. 89.) 18 Specifically, Plaintiff challenges the assertion of the deliberative-process privilege, 19 official-information privilege, and attorney-client privilege by defendants Roberts 20 and Stanton as to the 5 categories of emails. (Dkt. 87.) For the reasons set forth 21 below, the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s motion to 22 compel production of the 5 categories of emails. 23 24 II. 25 PROCEDURAL HISTORY 26 The parties reached out to the Court requesting an informal discovery 27 conference on February 6, 2025. On February 11, 2025, the Court held an informal 28 discovery conference to discuss this dispute with the parties. (Dkt. 85.) Based on 1 short letter briefs and in camera review of the documents being withheld as 2 privileged. (Id. at 1.) The parties agreed that defendants Roberts and Stanton would 3 file their letter brief and provide a sample of documents being withheld as privileged 4 to the Court for in camera review by February 21, 2025. (Id.) The Court 5 encouraged Roberts and Stanton to identify a few exemplar documents for each type 6 of privilege being asserted (e.g., deliberative process, official information, attorney- 7 client privilege). (Id.) Roberts and Stanton agreed to meet and confer with Plaintiff 8 on how to structure the sampling. (Id.) The parties further agreed that Plaintiff 9 would have until February 26, 2025 to file a responsive letter brief. (Id. at 2.) 10 Pursuant to the agreement of the parties, defendants Roberts and Stanton filed 11 their letter brief on February 21, 2025 (the “BPH Brief”) and submitted to the Court 12 5 exemplar email chains for in camera review. (Dkt. 87.) On February 26, 2025, 13 Plaintiff filed his letter brief seeking to compel the production of documents by 14 15 defendants Roberts and Stanton (“Plaintiff’s Brief”). (Dkt. 89.) On February 28, 16 2025, the Court held a hearing to consider oral argument. 17 18 III. 19 LEGAL STANDARD 20 Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery in 21 federal cases and provides that parties may obtain discovery regarding any 22 nonprivileged matter that is relevant to any party’s claim or defense. Federal Rule 23 of Evidence 401 provides that evidence is relevant if: “(a) it has any tendency to 24 make a fact more or less probable than it would be without the evidence; and (b) the 25 fact is of consequence in determining the action.” Relevance under Rule 26(b)(1) is 26 defined broadly. See, e.g., Snipes v. United States, 334 F.R.D. 548, 550 (N.D. Cal. 27 2020); V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 309 (D. Nev. 2019) (noting that 28 relevance for discovery purposes remains broad even after the 2015 amendments to 1 LTD., 2020 WL 1042515 (D. Nev. Mar. 3, 2020). In addition to relevance, Rule 2 26(b)(1) requires that discovery be proportional to the needs of the case. 3 Proportionality is determined by a consideration of the following factors: “the 4 importance of the issues at stake in the action, the amount in controversy, the 5 parties’ relative access to relevant information, the parties’ resources, the 6 importance of the discovery in resolving the issues, and whether the burden or 7 expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 8 26(b)(1). “Information within this scope of discovery need not be admissible in 9 evidence to be discoverable.” Id. 10 As set forth above, Rule 26(b)(1) expressly recognizes that privileged matters 11 fall outside the scope of discovery. However, “[w]hen a party withholds 12 information otherwise discoverable by claiming that the information is privileged[,] 13 . . . the party must: (i) expressly make the claim; and (ii) describe the nature of the 14 15 documents, communications, or tangible things not produced or disclosed--and do 16 so in a manner that, without revealing information itself privileged or protected, will 17 enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). “In essence, 18 the party asserting the privilege must make a prima facie showing that the privilege 19 protects the information the party intends to withhold.” In re Grand Jury 20 Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992). The Ninth Circuit has 21 “previously recognized a number of means of sufficiently establishing the privilege, 22 one of which is the privilege log approach.” Id. “The party asserting an evidentiary 23 privilege has the burden to demonstrate that the privilege applies to the information 24 in question.” Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988). 25 Boilerplate objections or blanket refusals inserted into a discovery response are 26 insufficient to meet this burden. See Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. 27 Ct. for Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005). Indeed, failure to 28 provide sufficient information to support the privilege may constitute waiver of the 1 F.R.D. 179, 182-83 (E.D. Cal. 1991). 2 Federal Rule of Civil Procedure 34(a) provides that a party may serve on 3 another a request for production of documents, electronically stored information, or 4 tangible things within the scope of Rule 26(b). Where a party fails to produce 5 documents requested under Rule 34, the requesting party may move to compel 6 discovery. Fed. R. Civ. P. 37(a). “Upon a motion to compel discovery, the movant 7 has the initial burden of demonstrating relevance.” Nguyen v. Lotus by Johnny 8 Dung Inc., 2019 WL 3064479, at *2 (C.D. Cal. June 5, 2019) (internal quotation 9 marks omitted). “Thereafter, the party opposing discovery has the burden of 10 showing that the discovery should be prohibited, and the burden of clarifying, 11 explaining or supporting its objections.” Garces v. Pickett, 2021 WL 978540, at *2 12 (E.D. Cal. Mar. 16, 2021). “The opposing party is required to carry a heavy burden 13 of showing why discovery was denied.” Id. (internal quotation marks omitted). 14 15 Specifically, the party opposing discovery must show that the requested discovery is 16 unreasonably cumulative or duplicative, or can be obtained from some other source 17 that is more convenient, less burdensome, or less expensive, the party seeking 18 discovery has had ample opportunity to obtain the information by discovery in the 19 action, or the proposed discovery is outside the scope permitted by Rule 26(b)(1). 20 See Fed. R. Civ. P. 26(b)(2)(C). The opposing party must specifically detail the 21 reason why the request is improper. See Beckman Indus., Inc. v. Int’l Ins. Co., 966 22 F.2d 470, 476 (9th Cir. 1992) (“Broad allegations of harm, unsubstantiated by 23 specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.” 24 (internal quotation marks omitted)). 25 26 \\ 27 \\ 28 1 DISCUSSION 2 Defendants Roberts and Stanton are withholding 5 categories of emails on the 3 basis of the deliberative-process privilege, official-information privilege, and 4 attorney-client privilege. (Dkt. 87 at 2.) The 5 categories are: (1) e-mails between 5 defendants Roberts and Stanton on September 1, 2017; (2) e-mails with the subject 6 line “Urgent” sent in June and July 2022 among non-parties Associate Chief Deputy 7 Commissioner Gunning, Deputy Commissioners Andres and Ruff, Chief Counsel 8 Blonien, and Senior Staff Attorney Young; (3) e-mails sent in June and July 2022 9 between non-parties Andres and Gunning; (4) e-mails sent in October and 10 December 2022 from nonparty Andres to himself; and (5) e-mails sent in February 11 2023 among non-party BPH staff members, Chief Counsel Blonien, Assistant Chief 12 Counsel McCray, and Assistant Chief Counsel Shultz. (Id.) 13 The emails in category 1 “expressly relate to [defendants Roberts and 14 15 Stanton’s] consideration of facts in preparing their decision on whether or not to 16 grant a non-party parole.” (Id. at 3.) The emails in categories 2 and 3 were 17 similarly sent among the hearing officers and BPH legal counsel in 2022 “for the 18 express purpose of assisting BPH and its hearing officers discuss policy and legal 19 determinations for a parole consideration hearing.” (Id.) The emails in category 4 20 are drafts of a letter from nonparty Andres to Associate Chief Deputy Commissioner 21 Gunning.2 The emails in category 5 among BPH staff and legal counsel in February 22 2023 “reflect discussions regarding potential litigation arising from a parole 23 suitability hearing.” (Id. at 6.) Plaintiffs seek production of the emails in all 5 24 categories in time for the upcoming depositions scheduled for mid-March and early 25 26

27 2 Defendants Roberts and Stanton do not appear to directly address the emails in category 4 in their letter brief. (Dkt. 87.) 28 1 For the reasons set forth below, the Court GRANTS IN PART AND DENIES 2 IN PART Plaintiff’s motion to compel production of the 5 categories of emails. 3 With regard to category 1, the Court concludes that the exemplar email chain is 4 protected by the deliberative-process privilege and Plaintiff’s interest in obtaining 5 the emails does not justify overriding the privilege. With regard to category 2, the 6 Court also concludes that the exemplar email chain is protected by the deliberative- 7 process privilege and that Plaintiff’s interest in obtaining the emails does not justify 8 overriding the privilege as to those emails that involve legal advice. The Court also 9 finds in the alternative that almost all of the communications in the exemplar email 10 chain for category 2 are protected by the attorney-client privilege. However, the 11 Court concludes that there is one email chain (AGO 006410) that is not protected by 12 the attorney-client privilege and therefore Plaintiff’s interest in obtaining this one 13 email chain outweighs the government’s interest in non-disclosure. With regard to 14 15 both categories 1 and 2, the Court concludes that defendants Roberts and Stanton 16 have failed to meet their burden to justify application of the official-information 17 privilege and the Court therefore overrules the objection based on the official- 18 information privilege. 19 With regard to category 3, the Court concludes that the first two pages of the 20 exemplar email chain are protected by the deliberative-process privilege, but that 21 Plaintiff’s interest in obtaining the email chain overrides the government’s interest 22 in non-disclosure. Thus, the Court concludes that the first two pages of the 23 24 3 Plaintiff notes that the parties continue to dispute the basis for withholding 25 documents that fall into other categories aside form the 5 enumerated by defendants Roberts and Stanton. (Dkt. 89 at 2 n.1.) However, the parties conferred and agreed 26 on these 5 categories for the purpose of the Court’s in camera review, as they 27 provided a sampling of each type of privilege asserted. (Id.) The Court has received from defendants Roberts and Stanton 1 exemplar email chain for each of 28 the 5 categories for in camera review. 1 privilege. With regard to the last four pages of the exemplar email chain, the Court 2 concludes that the deliberative-process privilege does not apply. Thus, the Court 3 concludes that the last four pages of the exemplar email chain should be produced, 4 subject to redaction for attorney-client privilege. With regard to the entire exemplar 5 email chain for category 3, the Court concludes that defendants Roberts and Stanton 6 have failed to meet their burden to justify application of the official-information 7 privilege and the Court therefore overrules the objection based on the official- 8 information privilege. 9 With regard to category 4, the Court concludes that the exemplar emails are 10 not protected by the deliberative-process privilege or the official-information 11 privilege. Thus, the Court concludes that the exemplar emails should be produced, 12 subject to redaction for attorney-client privilege. Finally, with regard to category 5, 13 the Court similarly concludes that the exemplar emails are not protected by the 14 15 deliberative-process privilege or the official-information privilege. However, the 16 Court concludes that the entirety of the exemplar emails provided for category 5 are 17 protected by the attorney-client privilege and therefore do not need to be produced. 18 A. Plaintiff Has Met His Initial Burden Of Demonstrating Relevance And 19 Proportionality. 20 As set forth above, defendants Roberts and Stanton acknowledge that the 5 21 categories of emails relate to either the 2017 parole hearing where Vidal confessed 22 and exonerated Plaintiff, or the fall-out of this hearing and actions taken as a result 23 of Vidals’ exculpatory testimony. (Dkt. 87 at 2-6.) Thus, the Court easily 24 concludes that the 5 categories of emails are relevant to the case. The Court also 25 easily concludes that production of the 5 categories of emails is proportional to the 26 needs of the case, given that the emails have been identified and can simply be 27 produced without any or very little burden. See Fed. R. Civ. P. 26(b)(1). The Court 28 notes that defendants Roberts and Stanton do not contest either relevance or 1 Court must next determine whether defendants Roberts and Stanton have met the 2 “heavy burden” of showing why the discovery sought should be denied. See 3 Garces, 2021 WL 978540, at *2 (internal quotation marks omitted). 4 B. Roberts And Stanton Have Not Met Their Burden Of Demonstrating That 5 All Of The Emails Are Privileged. 6 As set forth above, Roberts and Stanton object to producing the 5 categories 7 of emails on the basis of the deliberative-process privilege, official-information 8 privilege, and attorney-client privilege. (Dkt. 87 at 2.) In support of their assertion 9 of the deliberative-process privilege, defendants Roberts and Stanton have provided 10 the declaration of Rhonda Skipper, Chief Deputy of Field Operations at the 11 California Board of Parole Hearings. (Dkt. 87-1.) Skipper declares that she has 12 reviewed the exemplar emails provided to the Court for in camera review and states 13 that they contain “pre-decisional and deliberative materials related to the [BPH’s] 14 15 internal discussions regarding the decisions and factors to evaluate parole suitability 16 for Plaintiff Daniel Saldana.” (Dkt. 87-1 at 2.) According to Skipper, “[t]he 17 documents and communications where the deliberative process privilege is asserted 18 were created prior to BPH reaching a final proposed decision to deny or grant non- 19 party Raul Vidal’s and Plaintiff Daniel Saldana’s parole.” (Id.) Skipper states that 20 the emails “include questions, recommendations, opinions, and analyses prepared to 21 assist hearing officers in reaching an informed and deliberate decision.” (Id. at 3.) 22 Skipper further states that the emails “contain internal assessments, proposed 23 courses of action, and considerations that were debated before reaching a proposed 24 decision at the hearings.” (Id.) Finally, Skipper states that “[d]isclosure of these 25 materials would chill candid discussions among agency personnel and harm BPH’s 26 ability to engage in open and frank policy deliberations.” (Id.) 27 In support of their assertion of the official-information privilege, defendants 28 Roberts and Stanton have provided the declaration of Tara Doetsch, Chief Deputy of 1 similarly declares that she has reviewed the exemplar emails provided to the Court 2 for in camera review and states that “they include information and documents 3 related to an incarcerated person other than Plaintiff and may contain information 4 related to staff and other incarcerated person[s].” (Dkt. 87-2 at 2-3.) According to 5 Doetsch, BPH and California Department of Corrections and Rehabilitation 6 (“CDCR”) “consider staff personnel records and related documents, as well as 7 records documents investigations into allegations of staff misconduct, to be 8 confidential and maintain them as such.” (Id. at 3.) Doetsch states that “[i]n 9 addition to privacy interests, relates of the requested information could lead to safety 10 and security concerns for staff, incarcerated people, and institutional operations.” 11 (Id. at 3-4.) Doetsch further states that “the dissemination of medical and personal 12 information in administrative grievances could subject incarcerated people and staff 13 to threats, coercion, or potential violence given the sensitive details contained in 14 15 those documents.” (Id. at 4.) Finally, Doetsch states that “[r]evealing 16 correspondence between commissioners and BPH legal counsel or legal staff would 17 significantly hinder open and candid discussions among parole board hearing 18 officers and agency legal staff if legal staff was unable to offer legal advice and 19 analyses, and if participants feared public disclosure of their communications.” (Id. 20 at 5.) 21 1. The Deliberative-Process Privilege. 22 The deliberative process-privilege is a qualified privilege that is intended to 23 protect the quality of agency decisions by promoting frank and independent 24 discussion among those responsible for governmental decision-making. See, e.g., 25 F.T.C. v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984); Carter v. 26 U.S. Dep’t of Commerce, 307 F.3d 1084, 1089 (9th Cir. 2002) (“The purpose of this 27 privilege is to allow agencies freely to explore possibilities, engage in internal 28 debates, or play devil’s advocate without fear of public scrutiny.” (internal quotation 1 the privilege applies. F.T.C., 742 F.2d at 1161. Purely factual matter is not 2 deliberative, but the privilege applies if the factual matter cannot be segregated from 3 the deliberative material within the document. Id. 4 As a qualified privilege, a litigant may still obtain discovery of materials 5 protected by the privilege if the need for the materials outweighs the governmental 6 interest in keeping the decision-making process confidential. See Karnoski v. 7 Trump, 926 F.3d 1180, 1206 (9th Cir. 2019) (per curiam). In deciding whether to 8 override the privilege and allow discovery, there are four factors to be considered: 9 “1) the relevance of the evidence; 2) the availability of other evidence; 3) the 10 government’s role in the litigation; and 4) the extent to which disclosure would 11 hinder frank and independent discussion regarding contemplated policies and 12 decisions.” Id. (internal quotation marks omitted). 13 2. The Official-Information Privilege. 14 15 Federal common law recognizes a qualified privilege for official information. 16 See Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir.1990). “Because 17 this privilege is based upon the state’s interest in protecting against public disclosure 18 of sensitive information, courts examining a claim of privilege will balance the 19 plaintiff’s interest in disclosure against the government’s interest in keeping the 20 information secret.” Price v. County of San Diego, 165 F.R.D. 614, 620-21 (S.D. 21 Cal. 1996). When the official information privilege is asserted in response to a 22 discovery request, court have held that the responsible official within the agency 23 who has personal knowledge regarding the material must submit a declaration that: 24 (1) affirms that the agency has collected the material and held it in confidence; (2) 25 affirms that he or she has reviewed the material; (3) specifically asserts the 26 governmental or privacy interest which would be threatened by disclosure of the 27 material; (4) specifically explains the substantial risk of harm to those interests 28 which would result from disclosure; and (5) estimates the amount of harm which 1 blanket objection on the basis of the official-information privilege, but must make a 2 “specific claim of the rationale of the claimed privilege.” Id. 3 Courts have recognized ten factors to use in determining whether the official- 4 information privilege applies: (1) the extent to which disclosure will thwart 5 governmental processes by discouraging citizens from giving the government 6 information; (2) the impact upon persons who have given information of having 7 their identities disclosed; (3) the degree to which government self-evaluation and 8 consequent program improvement will be chilled by disclosure; (4) whether the 9 information sought is factual data or evaluative summary; (5) whether the party 10 seeking the discovery is an actual or potential defendant in any criminal proceeding 11 either pending or reasonably likely to follow from the incident in question; (6) 12 whether the police investigation has been completed; (7) whether any 13 intradepartmental disciplinary proceedings have arisen or may arise from the 14 15 investigation; (8) whether the plaintiff's suit is non-frivolous and brought in good 16 faith; (9) whether the information sought is available through other discovery or 17 from other sources; and (10) the importance of the information sought to the 18 plaintiff’s case. See Kelly v. City of San Jose, 114 F.R.D. 653, 663 (N.D. Cal. 19 1987); see also Miller v. Pancucci, 141 F.R.D. 292, 300 (C.D. Cal. 1992). 20 3. The Attorney-Client Privilege. 21 The fact that a person is a lawyer does not make all communications with that 22 person privileged. See, e.g., United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 23 1996). Instead, the Ninth Circuit has held that the attorney-client privilege has eight 24 essential elements: “(1) Where legal advice of any kind is sought (2) from a 25 professional legal adviser in his capacity as such, (3) the communications relating to 26 that purpose, (4) made in confidence (5) by the client, (6) are at his instance 27 permanently protected (7) from disclosure by himself or by the legal adviser, (8) 28 unless the protection be waived.” Matter of Fischel, 557 F.2d 209, 211 (9th Cir. 1 “The burden is on the party asserting the privilege to establish all the elements of the 2 privilege.” United States v. Martin, 278 F.3d 988, 999-1000 (9th Cir. 2002), as 3 amended on denial of reh’g (Mar. 13, 2002). “Because it impedes full and free 4 discovery of the truth, the attorney-client privilege is strictly construed.” Id. at 999. 5 4. Categories 1 & 2. 6 Defendants Roberts and Stanton contend that the emails in categories 1 and 2 7 are protected from disclosure by the deliberative-process privilege, the official- 8 information privilege, and the attorney-client privilege. (Dkt. 87 at 3-6.) As set 9 forth above, the emails in category 1 “expressly relate to [defendants Roberts and 10 Stanton’s] consideration of facts in preparing their decision on whether or not to 11 grant a non-party parole.” (Id.) The emails in category 2 were similarly sent among 12 the hearing officers and BPH legal counsel in 2022 “for the express purpose of 13 assisting BPH and its hearing officers discuss policy and legal determinations for a 14 15 parole consideration hearing.” (Id. at 3.) Roberts and Stanton contend that the 16 disclosure of emails in categories 1 and 2 “would harm effective BPH decision- 17 making processes and chill its ability to openly communicate internally, both now 18 and in the future.” (Id.) The Court will address each of the privileges asserted by 19 Roberts and Stanton below, in turn. 20 With regard to the deliberative-process privilege, the Court concludes that the 21 exemplar emails provided for categories 1 and 2 fall squarely within the privilege. 22 The exemplar email chain for category 1 is a set of emails between Roberts and 23 Stanton starting on August 31, 2017 and ending on September 1, 2017. In the email 24 chain, Roberts and Stanton are discussing whether to grant Vidal parole. Roberts 25 provides certain recommendations to Stanton and asks for Stanton’s opinion. 26 Stanton responds to the request and provides his views on the matters raised by 27 Roberts. The exemplar email chain for category 2 is a set of emails with the subject 28 line “Urgent” between Associate Chief Deputy Commissioner Gunning, Deputy 1 Young starting on June 30, 2022 and ending on May 30, 2023. The email chain 2 discusses an upcoming parole hearing for Plaintiff. In the email chain, both Blonien 3 and Young provide legal advice about the upcoming parole hearing. 4 As described above, the exemplar email chains for categories 1 and 2 are 5 predecisional because the communications were clearly “prepared in order to assist 6 an agency decisionmaker in arriving at his decision.” Assembly of State of Cal. v. 7 U.S. Dep’t of Com., 968 F.2d 916, 921 (9th Cir. 1992) (internal quotation marks 8 omitted), as amended on denial of reh’g (Sept. 17, 1992). The exemplar email 9 chains for categories 1 and 2 are also deliberative because they contain “opinions, 10 recommendations, or advice about agency policies.” United States v. Fernandez, 11 231 F.3d 1240, 1246 (9th Cir. 2000) (internal quotation marks omitted). Thus, the 12 Court must evaluate whether Plaintiff’s need for the emails in categories 1 and 2 13 overrides the government’s interest in non-disclosure. See F.T.C., 742 F.2d at 1161. 14 15 As set forth above, to decide whether to override the deliberative-process 16 privilege, courts consider: “1) the relevance of the evidence; 2) the availability of 17 other evidence; 3) the government’s role in the litigation; and 4) the extent to which 18 disclosure would hinder frank and independent discussion regarding contemplated 19 policies and decisions.” Karnoski, 926 F.3d at 1206 (internal quotation marks 20 omitted). With regard to the exemplar emails for category 1, the Court concludes 21 that Plaintiff’s need for these emails does not outweigh the government’s interest in 22 non-disclosure. The Court primarily bases this decision on the fact that the 23 exemplar emails do not contain any discussion of Vidal’s testimony exonerating 24 Plaintiff (or any other evidence of Plaintiff’s innocence). Instead, the discussion 25 between Roberts and Stanton is really focused on other aspects of whether to grant 26 Vidal parole and does not appear to have much relevance to the claims or defenses 27 in this case. Thus, the Court concludes that the exemplar emails for category 1 are 28 not sufficiently relevant to justify overriding the deliberative-process privilege. See 1 (“[G]eneral assertions of relevance alone are insufficient to breach the deliberative 2 process privilege.”).4 3 With regard to the exemplar emails for category 2, the Court concludes that 4 the first factor weighs in favor of disclosure because the emails directly address 5 Vidal’s testimony exonerating Plaintiff and therefore are highly relevant. The 6 second and third factors also weigh in favor of disclosure because the “evidence 7 sought is primarily, if not exclusively, under [the government’s] control, and the 8 government . . . is a party to and the focus of the litigation.” Karnoski, 926 F.3d at 9 1206. However, the fourth factor weighs heavily against disclosure because almost 10 all of the discussion in the email chain consists of giving or seeking legal advice. 11 Indeed, both Blonien and Young provide legal advice in the email chain about the 12 upcoming parole hearing. This legal advice weighs against disclosure under the 13 deliberative-process privilege and is also protected by the attorney-client privilege. 14 15 See Matter of Fischel, 557 F.2d at 211. 16 Therefore, the Court concludes that Plaintiff’s need for the exemplar emails in 17 category 2 do not outweigh the government’s interest in non-disclosure for any 18 portion of the emails protected by the attorney-client privilege. The Court also finds 19 in the alternative that almost all of the communications in the exemplar email chain 20

21 4 As discussed at the hearing on Plaintiff’s motion, the parties should meet and confer in an effort to identify the remaining emails that fall within the scope of 22 category 1. Once that is done, defendants Roberts and Sowders can submit those remaining emails in category 1 to the Court for in camera review and the Court will 23 review them to confirm that there is nothing in those emails which would cause the 24 Court to change its ruling as to any specific email. As set forth above, the Court’s balancing of Plaintiff’s need for the remails versus the Government’s interest in 25 non-disclosure is primarily based on the fact that the exemplar emails did not contain any discussion of Vidal’s testimony exonerating Plaintiff (or any other 26 evidence of Plaintiff’s innocence). If there are other emails that fall within the 27 scope of category 1 that contain discussions of such evidence, then the Court is likely to find that Plaintiff’s interest in obtaining those emails outweighs the 28 government’s interest in non-disclosure. 1 there is one significant portion of the email chain that is extremely relevant to this 2 case and does not contain any legal advice. (See AGO 006410.) The Court 3 concludes that Plaintiff’s need for this one email chain contained on a single page 4 outweighs the government’s interest in non-disclosure and should be produced.5 5 With regard to the official-information privilege, the Court concludes that 6 defendants Roberts and Stanton have failed to meet their threshold burden to 7 specifically identify the governmental or privacy interests which would be 8 threatened by disclosure of the material, describe the substantial risk of harm to 9 those interests which would result from disclosure, and estimate the amount of harm 10 which would result from disclosure. See Price, 165 F.R.D. at 621. As set forth 11 above, defendants Roberts and Stanton have provided the declaration of Tara 12 Doetsch, Chief Deputy of Program Operations for the Board of Parole Hearings, in 13 support of their claim for the official-information privilege. (Dkt. 87-2.) But 14 15 Doetsch makes only generalized assertions of governmental and privacy interests, as 16 well as generalized assertions of potential harm. See Kelly, 114 F.R.D. at 672 (“[A] 17 general claim of harm to the ‘public interest’ is insufficient to overcome the burden 18 placed on the party seeking to shield material from disclosure.”). 19 Indeed, Doetsch fails to address any specific communication or how 20 21 5 As discussed at the hearing on Plaintiff’s motion, the parties should meet and 22 confer in an effort to identify the remaining emails that fall within the scope of category 2. Once that is done, defendants Roberts and Sowders can submit those 23 remaining emails in category 2 to the Court for in camera review and the Court will 24 review them to confirm that there is nothing in those emails which would cause the Court to change its ruling as to any specific email. As set forth above, the Court’s 25 balancing of Plaintiff’s need for the emails versus the Government’s interest in non- disclosure is primarily based on the fact that almost all of the communications in the 26 exemplar emails are protected by the attorney-client privilege. For any emails in 27 category 2 that are not protected by the attorney-client privilege, the Court concludes that Plaintiff’s interest in obtaining those emails outweighs the 28 government’s interest in non-disclosure. 1 identifies. (Dkt. 87-2); Chism v. Cnty. of San Bernardino, 159 F.R.D. 531, 535 2 (C.D. Cal. 1994) (“[A] resisting party must specifically describe how disclosure of 3 the requested documents in the particular case in question would be harmful.”). 4 Finally, Doetsch also fails “to address how disclosure, under a carefully crafted 5 protective order, would create a substantial risk of harm to significant government 6 interests.” Soto v. City of Concord, 162 F.R.D. 603, 614 (N.D. Cal. 1995). The 7 Court notes this case has a stipulated protective order, Plaintiff is represented by 8 counsel, Plaintiff is not incarcerated, and Plaintiff was exonerated of the crime for 9 which he was previously incarcerated. Accordingly, the Court concludes that 10 Doetsch’s generalized claims of potential security risks caused by disclosure lack 11 any basis in the record. Accordingly, the Court overrules the objection of 12 defendants Roberts and Stanton based on the official-information privilege. 13 5. Category 3. 14 15 Defendants Roberts and Stanton contend that the emails in category 3 are 16 protected from disclosure by the deliberative-process privilege, the official- 17 information privilege, and the attorney-client privilege. (Dkt. 87 at 3-6.) As set 18 forth above, the exemplar email chain provided for category 3 is a set of emails 19 between Associate Chief Deputy Commissioner Gunning and Deputy 20 Commissioners Andres starting on June 30, 2022 and ending on July 21, 2022. In 21 the first two pages of the email chain (AGO PRIV 000103-04), Andres and Gunning 22 are discussing a future parole hearing for Plaintiff. The email chain qualifies as 23 predecisional because Andres and Gunning are discussing preparations for the 24 hearing. See Assembly of State of Cal., 968 F.2d at 921. The email chain also 25 qualifies as deliberative because Andres and Gunning are sharing opinions, 26 recommendation, and advise about how best to move forward with the hearing 27 process. See Fernandez, 231 F.3d at 1246 (9th Cir. 2000). Thus, the Court 28 concludes that the first two pages of the email chain (AGO PRIV 000103-04) are 1 The Court must therefore evaluate whether Plaintiff’s need for this email 2 chain overrides the government’s interest in non-disclosure. See F.T.C., 742 F.2d at 3 1161. The Court concludes that the first factor weighs in favor of disclosure 4 because the emails directly address Vidal’s testimony exonerating Plaintiff and 5 therefore are highly relevant. The second and third factors also weigh in favor of 6 disclosure because the “evidence sought is primarily, if not exclusively, under [the 7 government’s] control, and the government . . . is a party to and the focus of the 8 litigation.” Karnoski, 926 F.3d at 1206. Finally, the fourth factor is neutral because 9 the protective order in this case can help mitigate any harm to the ability of 10 government employees to have frank and independent discussion regarding 11 contemplated policies and decisions. Accordingly, the Court concludes that 12 Plaintiff’s need for this email chain overrides the government’s interest in non- 13 disclosure. Accordingly, the Court overrules the assertion of the deliberative- 14 15 process privilege as to the first two pages of the email chain. (AGO PRIV 000103- 16 04). The Court notes, however, that the email chain includes a brief reference to a 17 discussion with Young to obtain legal advice, a brief comment from Andres to 18 Young, and a brief comment from Andres to Blonien. Defendants Roberts and 19 Stanton can redact these brief references and comments prior to production because 20 they are protected by the attorney-client privilege. 21 With regard to the last four pages of the email chain (AGO PRIV 000114-15, 22 000137, and 000140), Andres and Gunning are not discussing preparation for a 23 future parole hearing. Instead, they are discussing an internal personnel matter 24 directly related to the facts of this case. The deliberative-process privilege simply 25 does not apply to internal personnel matters. See, e.g., Swartwood v. Cnty. of San 26 Diego, 2013 WL 6670545, at *3 (S.D. Cal. Dec. 18, 2013). There is no basis to 27 conclude that the internal personnel matter being discussed contributed to the 28 formulation of any important public policy decision. See Soto v. City of Concord, 1 should be invoked only in the context of communications designed to directly 2 contribute to the formulation of important public policy.”); see also Thomas v. Cate, 3 715 F. Supp. 2d 1012, 1044 (E.D. Cal. 2010) (“[T]he deliberative process privilege 4 should be narrowly construed because confidentiality may impede full and fair 5 discovery of the truth.”). Accordingly, the Court concludes that the deliberative- 6 process privilege does not apply to the last four pages of the email chain (AGO 7 PRIV 000114-15, 000137, and 000140).6 8 The Court notes, however, that the last four pages of the email chain do 9 include references to and descriptions of communications to and from attorneys. 10 Therefore, defendants Roberts and Stanton may redact the references to and 11 descriptions of communications to and from attorneys based on the attorney-client 12 privilege. The Court cautions Roberts and Stanton to carefully apply redaction and 13 only redact the portions of the email chain where a statement is specifically 14 15 described as being made to or coming from an attorney. 16 With regard to the official-information privilege, the Court concludes that 17 defendants Roberts and Stanton have failed to meet their threshold burden to support 18 application of the privilege for the same reasons as discussed above with regard to 19 categories 1 and 2. See Price, 165 F.R.D. at 621. As set forth above, Doetsch 20 makes only generalized assertions of governmental and privacy interests, as well as 21 generalized assertions of potential harm. See Kelly, 114 F.R.D. at 672. Doetsch 22 also fails to address any specific communication or how disclosure of the documents 23

24 6 With regard to other emails within category 3, the Court’s view based on the exemplar emails provided is that these emails should be produced, subject only to 25 redaction for attorney-client privilege. As noted above, some of the exemplar emails are not protected by the deliberative-process privilege at all and for the 26 portion of the exemplar emails that fall within the privilege, the Plaintiff’s interest in 27 obtaining these emails outweighs the government’s interest in non-disclosure because the emails in category 3 are extremely relevant to the claims at issue in this 28 case. 1 159 F.R.D. at 535. Finally, Doetsch also fails “to address how disclosure, under a 2 carefully crafted protective order, would create a substantial risk of harm to 3 significant government interests.” Soto, 162 F.R.D. at 614. Accordingly, the Court 4 overrules the objection of defendants Roberts and Stanton based on the official- 5 information privilege. 6 6. Category 4. 7 Defendants Roberts and Stanton do not appear to contend that the emails in 8 category 4 are protected by the deliberative-process privilege. (Dkt. 87 at 2-4.) 9 Instead, Defendants Roberts and Stanton appear to only raise the official- 10 information privilege and attorney-client privilege as to category 4. (Id. at 4-6.) As 11 set forth above, the exemplar emails provided for category 4 are drafts of a letter 12 from Deputy Commissioner Andres to Associate Chief Deputy Commissioner 13 Gunning that Andres repeatedly emails to himself as he works on the draft. The 14 15 email relates to an internal personnel matter based on the facts of this case and 16 clearly does not relate to the formulation of important public policy. Therefore, the 17 Court easily concludes for the avoidance of doubt that the deliberative-process 18 privilege does not apply to category 4. 19 With regard to the official-information privilege, the Court concludes that 20 defendants Roberts and Stanton have failed to meet their threshold burden to support 21 application of the privilege for the same reasons as discussed above with regard to 22 categories 1, 2, and 3. See Price, 165 F.R.D. at 621. As set forth above, Doetsch 23 makes only generalized assertions of governmental and privacy interests, as well as 24 generalized assertions of potential harm. See Kelly, 114 F.R.D. at 672. Doetsch 25 also fails to address any specific communication or how disclosure of the documents 26 in this case would lead to the generalized harms she identifies. (Dkt. 87-2); Chism, 27 159 F.R.D. at 535. Finally, Doetsch also fails “to address how disclosure, under a 28 carefully crafted protective order, would create a substantial risk of harm to 1 overrules the objection of defendants Roberts and Stanton based on the official- 2 information privilege. 3 The Court notes, however, that the exemplar emails for category 4 do include 4 references to and descriptions of communications to and from attorneys. Therefore, 5 defendants Roberts and Stanton may redact the references to and descriptions of 6 communications to and from attorneys based on the attorney-client privilege. The 7 Court cautions Roberts and Stanton to carefully apply redaction and only redact the 8 portions of the emails where a statement is specifically described as being made to 9 or coming from an attorney.7 10 7. Category 5. 11 Defendants Roberts and Stanton do not appear to contend that the emails in 12 category 5 are protected by the deliberative-process privilege. (Dkt. 87 at 2-4.) 13 Instead, Defendants Roberts and Stanton appear to only raise the official- 14 15 information privilege and attorney-client privilege as to category 5. (Id. at 4-6.) As 16 set forth above, the exemplar emails provided for category 5 are discussions among 17 BPH staff and legal counsel in February 2023 assessing potential legal liability for 18 the facts underlying this case. Therefore, the Court easily concludes that the emails 19 are protected by the attorney-client privilege. See Matter of Fischel, 557 F.2d at 20 211. By contrast, the Court also easily concludes for the avoidance of doubt that the 21 deliberative-process privilege does not apply. Indeed, the deliberative-process 22 privilege simply does not apply to internal investigations such as reflected in 23 category 5. See, e.g., Swartwood, 2013 WL 6670545, at *3. 24 With regard to the official-information privilege, the Court concludes that 25

26 7 With regard to other emails within category 4, the Court’s view based on the 27 exemplar emails provided is that these emails are extremely relevant to the claims at issue in this case and should be produced, subject only to redaction for attorney- 28 client privilege. 1 application of the privilege for the same reasons as discussed above with regard to 2 categories 1, 2, 3, and 4. See Price, 165 F.R.D. at 621. As set forth above, Doetsch 3 makes only generalized assertions of governmental and privacy interests, as well as 4 generalized assertions of potential harm. See Kelly, 114 F.R.D. at 672. Doetsch 5 also fails to address any specific communication or how disclosure of the documents 6 in this case would lead to the generalized harms she identifies. (Dkt. 87-2); Chism, 7 159 F.R.D. at 535. Finally, Doetsch also fails “to address how disclosure, under a 8 carefully crafted protective order, would create a substantial risk of harm to 9 significant government interests.” Soto, 162 F.R.D. at 614. Accordingly, the Court 10 overrules the objection of defendants Roberts and Stanton based on the official- 11 information privilege. 12 In sum, the Court concludes that the entirety of the exemplar email chain 13 provided for category 5 constitutes a privileged internal investigation conducted by 14 15 and at the direction of legal counsel. Thus, the Court sustains the objection of 16 defendants Roberts and Stanton on the basis of the attorney-client privilege. 17 However, the Court notes that Plaintiff is entitled to receive a detailed privilege log 18 from defendants Roberts and Stanton justifying every email being withheld as 19 falling within the scope of category 5. Specifically, the privilege log must “describe 20 the nature of the documents, communications, or tangible things not produced or 21 disclosed—and do so in a manner that, without revealing information itself 22 privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. 23 P. 26(b)(5); see also The Sedona Conference Commentary on Privilege Logs, 25 24 Sedona Conf. J. 221 (2024) (discussing methods to more efficiently establish that a 25 privilege applies). As set forth above, the Court has overruled the objection based 26 on the official-information privilege as to category 5, and therefore if there are any 27 other emails that fall within this category that are not protected by the attorney- 28 client privilege, they should be produced. 1 CONCLUSION 2 Consistent with the foregoing, Plaintiff’s motion to compel is GRANTED IN 3 PART AND DENIED IN PART. (Dkt. 89.) Specifically, the Court rules as 4 follows: 5 Category 1: The Court sustains the objection based on the deliberative- 6 process privilege. However, this conclusion is primarily based on the fact that the 7 exemplar emails did not contain any discussion of Vidal’s testimony exonerating 8 Plaintiff (or any other evidence of Plaintiff’s innocence). If there are other emails 9 that fall within the scope of category 1 that contain discussions of such evidence, 10 then the Court is likely to find that Plaintiff’s interest in obtaining those emails 11 outweighs the government’s interest in non-disclosure. The Court also overrules the 12 objection based on the official-information privilege. 13 Category 2: The Court sustains the objection based on the deliberative- 14 15 process privilege and the attorney-client privilege. However, the Court concludes 16 that there is one email chain (AGO 006410) that is not protected by the attorney- 17 client privilege and therefore the Court overrules the deliberative-process privilege 18 as to this one email chain. The Court also notes that the balancing of Plaintiff’s 19 need for the emails in this category versus the Government’s interest in non- 20 disclosure is primarily based on the fact that almost all of the communications in the 21 exemplar emails are protected by the attorney-client privilege. For any emails in 22 category 2 that are not protected by the attorney-client privilege, the Court overrules 23 the deliberative-process privilege. The Court also overrules the objection based on 24 the official-information privilege. 25 Category 3: The Court overrules the objection based on the deliberative- 26 process privilege. However, the exemplar email chain should be redacted for 27 attorney-client privilege. The Court also overrules the objection based on the 28 official-information privilege. For any other email that falls within category 3, the 1 attorney-client privilege. 2 Category 4: The Court overrules the objection based on the deliberative- 3 process privilege. The Court also overrules the objection based on the official- 4 information privilege. However, the exemplar email chain should be redacted for 5 attorney-client privilege. For any other email that falls within category 4, the Court 6 concludes that such email should be produced, subject to redaction for attorney- 7 client privilege. 8 Category 5: The Court overrules the objection based on the deliberative- 9 process privilege. The Court also overrules the objection based on the official- 10 information privilege. However, the Court sustains the objection based on the 11 attorney-client privilege as to all of the exemplar emails provided to the Court for 12 this category. For any other email withheld as falling within category 5, or any of 13 the other categories, defendants Roberts and Stanton must produce a detailed 14 15 privilege log to allow Plaintiff to meaningfully review the assertion of privilege. If 16 there are any other emails that fall within this category that are not protected by the 17 attorney-client privilege, they should be produced, either in full, or with redactions 18 (if needed). 19 Defendants Roberts and Stanton shall complete their production of 20 documents and privilege log pursuant to this Order within 10 days. 21 22 \\ 23 24 \\ 25 26 \\ 27 28 \\ 1 Finally, the Court notes that neither side sought an award of expenses with regard to this discovery dispute. (Dkts. 87, 89.) Under Federal Rule of Civil 3 Procedure 37(a)(5)(C), where a motion to compel is granted in part and denied in 4 || Part. the court has discretion to apportion reasonable expenses for the motion. The 5 Court exercises its discretion to decline to award expenses for this motion. The 6 || Court’s conclusion is based on the fact that the parties have worked together 7 amicably to narrow the scope of the dispute and present the dispute for resolution in g || an efficient manner through short letter briefs. This has already saved the parties g || and the Court time and expense and the Court commends the parties for their 19 || Professionalism. 11 IT IS SO ORDERED. 12 13 || DATED: March 3, 2025 UL. 14 N. A. JOEL RICHLIN UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25