1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 Silvestre ESTRADA, a minor, by and Case No.: 22-cv-00373-AJB-BGS through is proposed guardian ad litem 10 Emily Prieto, et al., ORDER REGARDING DISCOVERY 11 DISPUTE Plaintiffs,
12 v. [ECF No. 29] 13 UNITED STATES OF AMERICA,
14 Defendant. 15
16 A heavily redacted After-Action Report (the Report) of the San Diego Sector, El 17 Cajon Station, of the U.S. Border Patrol (the Border Patrol) generated several days after 18 the shooting in this case was provided to Plaintiff on September 27, 2022, in response to a 19 Request for Production of Documents under Rule 34 of the Federal Rules of Civil 20 Procedure. (ECF No. 29, at 2.) On November 7, 2022, the parties filed a joint motion for 21 Discovery Dispute Resolution with this Court. (ECF No. 29.) In their motion, the parties 22 request that this Court review in camera the unredacted Report, which has been filed ex 23 parte and under seal by Defendant as Exhibit 3 to the parties’ joint brief. (Id.) The parties 24 seek a decision by this Court as to whether any of already-made redactions in the version 25 of the Report provided to Plaintiffs, which has been filed under seal as Exhibit 1 to the 26 parties’ joint brief, should be removed. (Id.) Defendant contends the redactions were made 27 28 1 1 to protect material subject to the deliberative process privilege. Based on its in camera 2 review of Exhibit 3, this Court finds as follows. 3 I. LEGAL STANDARD 4 Under the deliberative process privilege, a government may withhold documents 5 that “reflect advisory opinions, recommendations and deliberations comprising part of a 6 process by which government decisions and policies are formulated.” Fed. Trade Comm’n 7 v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). The purpose of the 8 privilege is “to promote frank and independent discussion among those responsible for 9 making governmental decisions and also to protect against premature disclosure of 10 proposed agency policies or decisions.” Id. (citation omitted). To be protected by the 11 deliberative process privilege, “a document must be both (1) predecisional or antecedent 12 to the adoption of agency policy and (2) deliberative, meaning it must actually be related 13 to the process by which policies are formulated.” United States v. Fernandez, 231 F.3d 14 1240, 1246 (9th Cir. 2000) (internal quotation marks omitted). 15 A “predecisional document is one prepared in order to assist an agency 16 decisionmaker in arriving at his decision, and may include recommendations, draft 17 documents, proposals, suggestions, and other subjective documents which reflect the 18 personal opinions of the writer rather than the policy of the agency.” Maricopa Audubon 19 Soc’y v. U.S. Forest Serv., 108 F.3d 1089, 1093 (9th Cir. 1997) (internal quotation marks 20 omitted). Moreover, “the agency must identify a specific decision to which the document 21 is predecisional.” Id. at 1094. 22 A predecisional document is part of the deliberative process if “the disclosure of 23 [the] materials would expose an agency’s decision-making process in such a way as to 24
25 26 1 Federal law recognizes a deliberative process privilege, which shields confidential inter- agency memoranda on matters of law or policy from public disclosure. Nat’l Wildlife 27 Fed’n v. U.S. Forest Serv., 861 F.2d 1114, 1116 (9th Cir. 1988). 28 2 1 discourage candid discussion within the agency and thereby undermine the agency’s ability 2 to perform its functions.” Carter v. U.S. Dep’t of Com., 307 F.3d 1084, 1089 (9th Cir. 3 2002) (internal quotation marks omitted) (alteration in original). “[P]redecisional materials 4 are privileged to the extent they reveal the mental processes of decision-makers.” Id. at 5 1090 (internal quotation marks omitted). Moreover, a document is considered part of the 6 deliberative process when it “actually . . . relate[s] to the process by which policies are 7 formulated.” Nat’l Wildlife Fed’n, 861 F.2d at 1117 (internal quotation marks omitted). 8 Notably, even when the deliberative process privilege applies, the privilege is a 9 qualified one and if a litigant’s need for the materials and need for accurate factfinding 10 outweighs the government’s interest in confidentiality, the materials will be disclosed. 11 Warner Commc’ns Inc., 742 F.2d at 1161. In weighing the competing interests, a court 12 may consider: (1) the relevance of the evidence; (2) the availability of other evidence; (3) 13 the government’s role in the litigation; and (4) the extent to which disclosure would hinder 14 frank and independent discussion regarding contemplated policies and decisions. Calvary 15 Chapel San Jose v. Cody, No. 20-cv-03794-BLF (VKD), 2022 WL 3566446, at *2 (N.D. 16 Cal. Aug. 18, 2022). 17 Finally, “[p]urely factual material that does not reflect deliberative processes is not 18 protected” by the privilege. Warner Commc’ns Inc., 742 F.2d at 1161; see also Sanchez v. 19 Johnson, No. C-00-1593-CW (JCS), 2011 WL 1870308, at *5 (N.D. Cal. Nov. 19, 2001) 20 (“[T]he fact/opinion distinction should not be applied mechanically. Rather, the relevant 21 inquiry is whether revealing the information exposes the deliberative process.”). Only 22 factual material “so interwoven with the deliberative material that it is not severable” is 23 protected. Warner Commc’ns Inc., 742 F.2d at 1161. 24 Defendant has the burden of “establishing what deliberative process is involved, and 25 the role played by the documents in issue in the course of that process.” Coastal States 26 Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980). “[T]he privilege must 27 be strictly confined within the narrowest possible limits consistent with the logic of its 28 3 1 principles.” Sanchez, 2011 WL 1870308, at *5 (internal quotation marks omitted). 2 II. DISCUSSION 3 A. Predecisional and Deliberative 4 Defendant argues that the Report is predecisional and deliberative because it 5 summarizes the Border Patrol’s “inter-agency brainstorm discussion of its response efforts 6 in this case, including exploring possibilities for how to potentially enhance future response 7 efforts.” (Joint Mot. Disc., at 6.) After a thorough review of the Report, the Court finds 8 that most of the Report is predecisional and deliberative. 9 The purpose of the Report is to provide recommendations to improve future 10 responses to critical situations like the one in this case. Thus, the Court finds that the 11 Report recommendations were made as part of an internal process to develop future policy. 12 The Report recommendations are, therefore, predecisional. See Maricopa Audubon Soc’y, 13 108 F.3d at 1093; see also Perez v. United States, No. 13cv1417-WQH-BGS, 2016 WL 14 499025, at *9 (S.D. Cal. Feb. 9, 2016) (“Because the Recommendations Report was 15 prepared to assist [ U.S. Customs and Border Patrol (CBP)] in arriving at their decision to 16 revise the use of force policy, and includes recommendations from operational entities 17 within CBP, the Court finds that it is predecisional.”).
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 Silvestre ESTRADA, a minor, by and Case No.: 22-cv-00373-AJB-BGS through is proposed guardian ad litem 10 Emily Prieto, et al., ORDER REGARDING DISCOVERY 11 DISPUTE Plaintiffs,
12 v. [ECF No. 29] 13 UNITED STATES OF AMERICA,
14 Defendant. 15
16 A heavily redacted After-Action Report (the Report) of the San Diego Sector, El 17 Cajon Station, of the U.S. Border Patrol (the Border Patrol) generated several days after 18 the shooting in this case was provided to Plaintiff on September 27, 2022, in response to a 19 Request for Production of Documents under Rule 34 of the Federal Rules of Civil 20 Procedure. (ECF No. 29, at 2.) On November 7, 2022, the parties filed a joint motion for 21 Discovery Dispute Resolution with this Court. (ECF No. 29.) In their motion, the parties 22 request that this Court review in camera the unredacted Report, which has been filed ex 23 parte and under seal by Defendant as Exhibit 3 to the parties’ joint brief. (Id.) The parties 24 seek a decision by this Court as to whether any of already-made redactions in the version 25 of the Report provided to Plaintiffs, which has been filed under seal as Exhibit 1 to the 26 parties’ joint brief, should be removed. (Id.) Defendant contends the redactions were made 27 28 1 1 to protect material subject to the deliberative process privilege. Based on its in camera 2 review of Exhibit 3, this Court finds as follows. 3 I. LEGAL STANDARD 4 Under the deliberative process privilege, a government may withhold documents 5 that “reflect advisory opinions, recommendations and deliberations comprising part of a 6 process by which government decisions and policies are formulated.” Fed. Trade Comm’n 7 v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). The purpose of the 8 privilege is “to promote frank and independent discussion among those responsible for 9 making governmental decisions and also to protect against premature disclosure of 10 proposed agency policies or decisions.” Id. (citation omitted). To be protected by the 11 deliberative process privilege, “a document must be both (1) predecisional or antecedent 12 to the adoption of agency policy and (2) deliberative, meaning it must actually be related 13 to the process by which policies are formulated.” United States v. Fernandez, 231 F.3d 14 1240, 1246 (9th Cir. 2000) (internal quotation marks omitted). 15 A “predecisional document is one prepared in order to assist an agency 16 decisionmaker in arriving at his decision, and may include recommendations, draft 17 documents, proposals, suggestions, and other subjective documents which reflect the 18 personal opinions of the writer rather than the policy of the agency.” Maricopa Audubon 19 Soc’y v. U.S. Forest Serv., 108 F.3d 1089, 1093 (9th Cir. 1997) (internal quotation marks 20 omitted). Moreover, “the agency must identify a specific decision to which the document 21 is predecisional.” Id. at 1094. 22 A predecisional document is part of the deliberative process if “the disclosure of 23 [the] materials would expose an agency’s decision-making process in such a way as to 24
25 26 1 Federal law recognizes a deliberative process privilege, which shields confidential inter- agency memoranda on matters of law or policy from public disclosure. Nat’l Wildlife 27 Fed’n v. U.S. Forest Serv., 861 F.2d 1114, 1116 (9th Cir. 1988). 28 2 1 discourage candid discussion within the agency and thereby undermine the agency’s ability 2 to perform its functions.” Carter v. U.S. Dep’t of Com., 307 F.3d 1084, 1089 (9th Cir. 3 2002) (internal quotation marks omitted) (alteration in original). “[P]redecisional materials 4 are privileged to the extent they reveal the mental processes of decision-makers.” Id. at 5 1090 (internal quotation marks omitted). Moreover, a document is considered part of the 6 deliberative process when it “actually . . . relate[s] to the process by which policies are 7 formulated.” Nat’l Wildlife Fed’n, 861 F.2d at 1117 (internal quotation marks omitted). 8 Notably, even when the deliberative process privilege applies, the privilege is a 9 qualified one and if a litigant’s need for the materials and need for accurate factfinding 10 outweighs the government’s interest in confidentiality, the materials will be disclosed. 11 Warner Commc’ns Inc., 742 F.2d at 1161. In weighing the competing interests, a court 12 may consider: (1) the relevance of the evidence; (2) the availability of other evidence; (3) 13 the government’s role in the litigation; and (4) the extent to which disclosure would hinder 14 frank and independent discussion regarding contemplated policies and decisions. Calvary 15 Chapel San Jose v. Cody, No. 20-cv-03794-BLF (VKD), 2022 WL 3566446, at *2 (N.D. 16 Cal. Aug. 18, 2022). 17 Finally, “[p]urely factual material that does not reflect deliberative processes is not 18 protected” by the privilege. Warner Commc’ns Inc., 742 F.2d at 1161; see also Sanchez v. 19 Johnson, No. C-00-1593-CW (JCS), 2011 WL 1870308, at *5 (N.D. Cal. Nov. 19, 2001) 20 (“[T]he fact/opinion distinction should not be applied mechanically. Rather, the relevant 21 inquiry is whether revealing the information exposes the deliberative process.”). Only 22 factual material “so interwoven with the deliberative material that it is not severable” is 23 protected. Warner Commc’ns Inc., 742 F.2d at 1161. 24 Defendant has the burden of “establishing what deliberative process is involved, and 25 the role played by the documents in issue in the course of that process.” Coastal States 26 Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980). “[T]he privilege must 27 be strictly confined within the narrowest possible limits consistent with the logic of its 28 3 1 principles.” Sanchez, 2011 WL 1870308, at *5 (internal quotation marks omitted). 2 II. DISCUSSION 3 A. Predecisional and Deliberative 4 Defendant argues that the Report is predecisional and deliberative because it 5 summarizes the Border Patrol’s “inter-agency brainstorm discussion of its response efforts 6 in this case, including exploring possibilities for how to potentially enhance future response 7 efforts.” (Joint Mot. Disc., at 6.) After a thorough review of the Report, the Court finds 8 that most of the Report is predecisional and deliberative. 9 The purpose of the Report is to provide recommendations to improve future 10 responses to critical situations like the one in this case. Thus, the Court finds that the 11 Report recommendations were made as part of an internal process to develop future policy. 12 The Report recommendations are, therefore, predecisional. See Maricopa Audubon Soc’y, 13 108 F.3d at 1093; see also Perez v. United States, No. 13cv1417-WQH-BGS, 2016 WL 14 499025, at *9 (S.D. Cal. Feb. 9, 2016) (“Because the Recommendations Report was 15 prepared to assist [ U.S. Customs and Border Patrol (CBP)] in arriving at their decision to 16 revise the use of force policy, and includes recommendations from operational entities 17 within CBP, the Court finds that it is predecisional.”). 18 The Court also finds that full disclosure of the recommendations in the Report would 19 expose the Border Patrol’s decision-making process related to its management of critical 20 incidents, discourage candid discussion in the ranks of the Border Patrol about areas of 21 improvement after critical incidents occur, and undermine the Border Patrol’s ability to 22 improve its management of future critical incidents as a result. The Report 23 recommendations are, therefore, also deliberative. See Nat’l Wildlife Fed’n, 861 F.2d at 24 1117; see also Perez, 2016 WL 499025, at *9. 25 B. Factual 26 Plaintiffs correctly note that any purely factual material is discoverable. See Warner 27 Commc’ns, Inc., 742 F.2d at 1161. After reviewing the unredacted Report for purely 28 4 1 factual material, the Court has found a very limited number of redacted statements it deems 2 purely factual. Those include statements Defendant has left unredacted in the parties’ 3 Exhibit 1, which have already been provided to Plaintiffs, and three additional statements 4 the Court has found in Exhibit 3 that should be unredacted and provided to Plaintiffs. 5 C. Balancing Factors 6 Finally, as to material in the Report that is not purely factual and is predecisional 7 and deliberative, after weighing Plaintiffs’ need for the materials and need for accurate 8 fact-finding against the government’s interest in non-disclosure, the Court finds six 9 additional statements that should be unredacted and provided to Plaintiffs. 10 1. Relevance 11 “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable 12 than it would be without the evidence; and (b) the fact is of consequence in determining 13 the action.” Fed. R. Evid. 401. Plaintiffs assert that the preservation of the crime scene is 14 a major issue in this case insofar as it will address the key issue of whether the decedent’s 15 vehicle was slow-moving such that officers could have easily stepped out of the vehicle’s 16 path. Plaintiffs assert that to the extent that the Border Patrol’s actions undermined the 17 reliability of the crime scene, their verbal accounts of the necessity of using deadly force 18 would likely be less credible. 19 The Court finds that although the bulk of the Report does not concern preservation 20 of the crime scene, six redacted statements do. Therefore, they are relevant to Plaintiffs’ 21 stated theory of the case. 22 2. Comparable Evidence from Other Sources 23 Again, to a limited degree, the Report assesses the Border Patrol agents’ preservation 24 of the crime scene, and that assessment is directly relevant to Plaintiffs’ theory of the case. 25 The only other evidence on this issue would come by way of expert opinion. The Court 26 does not deem such to be comparable evidence. 27 3. Government’s Role in the Litigation 28 5 1 The government’s role in the incident addressed in the Report is the subject of this 2 litigation. A federal district court for this district has held that the “nature of the allegations 3 and the role of the government in the litigation itself . . . tip[s] the scales in favor of 4 disclosure.” Newport Pacific Inc. v. Cty. of San Diego, 200 F.R.D. 628, 640 (S.D. Cal. 5 2001). Thus, the government’s role in this litigation likewise militates toward disclosure. 6 4. Chilling Agency Discussion 7 Defendant asserts that the Report summarizes Border Patrol inter-agency 8 brainstorming and discusses its response efforts, including an exploration of possibilities 9 of how to potentially enhance future response efforts, which are candid discussions that 10 should occur after any significant event. Subjecting brainstorming and discussion to 11 discovery would unquestionably hinder future frank discussions. 12 While addressing similar contentions regarding the chilling effect disclosure of 13 documents would have on behind-the-scenes discussion, a federal district court for the 14 Northern District of California has held that disclosure of such documents would “intrude 15 [only] minimally, and without prejudice, into agency deliberations.” Sanchez, 2001 WL 16 1870308, at *1. This district has found that similar documents should be produced after 17 noting that “the infringement upon the frank and independent discussions regarding 18 contemplated policies and decisions by the County . . . can be alleviated through the use of 19 a strict protective order.” Price v. Cty. of San Diego, 165 F.R.D. 614, 620 (S.D. Cal. 1996). 20 The Court finds these decisions persuasive. In short, Defendant’s concern regarding 21 the frankness of agency discussion does not weigh strongly against disclosure and can be 22 mitigated by a protective order. Further, the six additional predecisional and deliberative 23 statements from the Report that are to be unredacted are a very small portion of the Report. 24 Such a small redaction reduces any chilling effect. 25 III. CONCLUSION 26 The parties requested that the Court review the Report in camera to determine 27 whether and to what extent the deliberative process privilege applies to it. As discussed 28 6 1 || above, the Court finds and concludes that the privilege does not apply to three statements 2 ||redacted in the Report and finds and concludes that although the privilege does apply to 3 || the remainder of the redacted portions of the Report, after balancing several factors, six of 4 redacted statements should be unredacted and provided to Plaintiffs. 5 The parties shall meet and confer as to the method they propose the Court use to 6 identify the statements that shall be unredacted. The parties shall file a proposal describing 7 method with the Court by December 13, 2022. 8 9 IT IS SO ORDERED. 7 p / 10 on. Bernard G. Skomal 11 United States Magistrate Judge Dated: December 6, 2022 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22-cv-00373-AJB-BGS