Opinion
Civil Action No. SA-04-CA-0798 XR.
July 27, 2005
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL AND MOTION FOR PROTECTIVE ORDER (DOCKET ENTRIES 40 AND 46)
The matters before the Court are plaintiffs' motion to compel production, defendants' response thereto which includes a motion for protective order, and plaintiff's reply (docket entries 40, 45/46, 48 and 50). These matters have been referred to me for disposition (docket entry 42 and 49).
Defendant Dougherty responded to the motion explaining that he does not have any of the requested documents (docket entry 44). Accordingly, the motion to compel Dougherty to produce is DENIED.
Plaintiffs' motion to compel is authorized by Federal Rule of Civil Procedure 37(a)(2)(B), and defendants' motion for protective order by Rule 26(c).
This motion arises in the context of an employment dispute. Plaintiffs allege they were terminated after they spoke out on matters of public concern involving the Converse Fire Department where they worked, and for participating in union activities. Specifically, they were involved in the reporting of defendants' purchase of a trailer using federal monies which was later used for personal purposes, and improper use of Volunteer Fire Department funds by defendant Dougherty, the former Fire Chief.
After plaintiffs' dismissal, defendant City of Converse convened a "Board of Inquiry" to complete an investigation of the Fire Department and Volunteer Fire Department, and make a final report to the City to include the overall command structure of the Department and allegations of wrongdoing and misconduct there. The Board included two members of the City Council and three private citizens. In the course of their investigation the Board interviewed 38 witnesses, which were each sworn and their testimony taped. The five members of the Board kept notes of their investigation. The interviews and the notes are the subject of this motion to compel.
Plaintiffs requested these items through its "First Request for Production of Documents" in response to which defendants produced a privilege log and, as to each item stated, "Confidential Internal City Investigation regarding alleged misconduct in the Converse Fire Department and Volunteer Fire Department." In their motion plaintiffs argue that these documents are relevant to claims that their termination was unlawful and that none of the several objections to production are applicable here.
In their motion plaintiffs ask for production of the interviews and notes, as well as any documents reviewed by the Board of Inquiry. No other documents are listed on the privilege log as being withheld. Accordingly, my analysis is limited to these two categories of documents only.
In defendants' response to the motion they have narrowed the bases for their objection to disclosure to two grounds. First, defendants argue that the "deliberative process privilege" applies to both category of documents. They also assert what may be generally characterized as an "executive privilege" which prevents disclosure of government information when contrary to the public interest. They ask the court to both deny the motion to compel and affirmatively grant their request to enter an order excusing them from production.
The parties have correctly described the scope of the deliberative process privilege and the controlling authorities. That privilege applies to "documents which reflect `advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'" Papers which reflect an "agency's group thinking in the process of working out its policy and determining what its law shall be" are protected from disclosure. In order to apply, the document must contain opinions, recommendations or advice about agency policies; purely factual material that does not reflect deliberative process is not protected.
Klein v. Jefferson Parish School Board, 2003 WL 1873909 at page 4 (E.D. La. 2003), citing NLRB v. Sears, Roebuck Co., 421 U.S. 132, 148 (1975).
Id.
Id.
The executive privilege excuses the government from production of information when disclosure would be against the public's interest. Invocation of that privilege requires the Court to balance the public's interest in preserving confidentiality against the needs of the litigant to obtain the information. Factors to be considered in making this assessment include:
Frankenhauser v. Rizzo, 59 F.R.D. 339, 342 (E.D. Penn. 1973).
Id. at 344.
1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff's suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff's case.
Id.
The Fifth Circuit has endorsed consideration of these factors in determining whether this privilege bars discovery of government information.
Coughlin v. Lee, 946 F.2d 1152, 1160 (5th Cir. 1991).
As in all discovery disputes, once the party seeking the information has established its relevancy, the party opposing disclosure has the burden to challenge relevancy and establish the availability of a privilege excusing production. Defendants do not challenge the relevancy of the interview tapes and notes in their response and motion for protection. Instead, they rely solely on the deliberative process and executive privilege objections. Accordingly, they have the burden of proof.
See McLeod, Alexander, Powell Apfel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990).
Defendants have not shown that the deliberative process privilege applies here. The witness interviews are clearly "factual" and therefore outside the realm of this privilege. The other category of information sought — the notes of the Board members — may include information which is in the nature of the opinions of those policy makers, but defendants failed to include this argument in its response. Rather, defendants' argument merely presumes that the privilege applies and moves immediately to a discussion of a few of the relevant factors.
Defendants have also asserted the broader executive privilege to shield disclosure of these documents. With respect to the audiotapes of the interviews, they failed to substantiate their privilege claim. They argue that the information sought is otherwise available. However, while the final report of the Board of Inquiry has been disclosed, the transcripts of the 38 interviews have not. Nor have the individual notes of the Board members been made available. Defendants argue that the witnesses were sworn to secrecy and assured their testimony would remain confidential. Importantly, the witnesses were also alerted that a court order might override the promise of confidentiality.
The critical element of plaintiffs' claims involves the defendants' motivation for discharging them from their jobs. While plaintiffs' positions may have been at-will, they nevertheless enjoyed the protections of the First Amendment as they became involved in union activities and disclosure of abuses in the fire department. Plaintiffs' complaint has survived motions to dismiss. Direct evidence of motivation is exceedingly rare; rather, it resides in the many subtleties of employment decisions. The interviews of current and former employees conducted by the Board of Inquiry into the command structure and allegations of wrongdoing within the fire department are obviously relevant and include information not available through any other source. The disclosure of this information is therefore exceedingly important to the plaintiffs' case.
The most persuasive of defendants' arguments is that disclosure would "thwart governmental processes in the future by discouraging its employees from giving government information truthfully and without fear of public disclosure of their testimony." However, they provided no argument to support this conclusion. The identities of those interviewed by the Board of Inquiry have been disclosed. The Board's summary report has been made public. Some of those interviewed by the Board were also interviewed in the context of a criminal investigation, and that closed criminal investigation file has been disclosed. The interviewees were advised that while their testimony was confidential it might be disclosed in the future pursuant to a court order. Given the potential importance of the interviews to plaintiffs' case, defendants' mere speculation concerning the chilling effect of the disclosure of the audiotapes of the 38 interviews is unpersuasive.
Application of the executive privilege to the notes taken by the Board members results in a different conclusion. The plaintiffs' need for the Board members' notes in establishing their claims is unclear. Presumably the Board took notes during the interviews but the notes would not provide any information not already available in the interviews themselves. The notes might also contain summaries of group discussion following the interviews, but to that extent the notes would be "evaluative" and not "factual," a factor favoring application of the executive privilege. Accordingly, I conclude that the motion to compel should be denied as to those items.
For the reasons stated above, the motion to compel is ORDERED GRANTED insofar as defendants City of Converse and Hughes shall produce the 38 audiotaped interviews no later than August 5, 2005. The motion to compel production of the Boards' notes is ORDERED DENIED. The motion to compel defendant Dougherty is DENIED in all respects. The motion for protective order is GRANTED in part consistent with this opinion.