McKillop v. Regents of University of California, C-73-1038-CBR.

• Decision Date: 02 January 1975
• Docket Number: No. C-73-1038-CBR.,C-73-1038-CBR.
• Citation: 386 F. Supp. 1270
• Parties: Susan Regan McKILLOP, Plaintiff, v. REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants.
• Court: U.S. District Court — Northern District of California

386 F. Supp. 1270

Susan Regan McKILLOP, Plaintiff, v. REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants.

No. C-73-1038-CBR.

United States District Court, N. D. California.

January 2, 1975.

Wendy W. Williams, Nancy L. Davis, Mary C. Dunlap, Joan M. Graff, Equal Rights Advocates, Davis, Dunlap & Williams, San Francisco, Cal., for plaintiff.

Donald L. Reidhaar, Milton H. Gordon, Norman I. Lustig, Berkeley, Cal., for defendants.

MEMORANDUM OF OPINION AND ORDER

RENFREW, District Judge.

In 1970 Dr. Susan Regan McKillop was denied tenure in the Art Department of the University of California at Davis. She now challenges that denial, setting forth essentially two claims: first, that the University, in denying her tenure, discriminated against her on the basis of her sex in violation of the United States Constitution and certain federal statutes, and second, that she was denied tenure without notice of the reasons for denial, and without an opportunity to be heard, thereby depriving her of liberty without due process of law in violation of the Fourteenth Amendment.

As part of her discovery efforts, plaintiff requested that defendants produce the following documents: all papers, letters, forms, reports and other documents included in the personnel files of the University concerning her hiring, evaluation, promotion and denial of tenure. Defendants produced documents which were written to or by plaintiff or which were otherwise provided to her in the normal course of University of California academic personnel procedures. Defendants refused, however, to provide (1) documents which were submitted or written in official confidence by University faculty members, administrators and committees and by scholars at other institutions and (2) documents which were written by or to defendants to or by its attorneys. In both instances the ground for refusal was privilege, as to the first category of documents, the privilege for official information, and, as to the second category, the attorney-client privilege.

Plaintiff conceded the propriety of the assertion of privilege as to attorney-client communications but moved to compel production of the documents allegedly protected by the official information privilege. On April 17, 1974, the Court orally denied this motion.

Plaintiff thereafter submitted a second request for production of documents. This request sought all written materials in the personnel files of (1) persons currently in tenure-track positions¹ in the Art Department of the University of California at Davis, (2) persons who now hold or have held tenure positions in the Art Department of the University of California at Davis, and (3) persons who have been in tenure-track positions in the Art Department of the University of California at Davis and who have been denied tenure. As with plaintiff's personnel file, defendants produced those documents in the specified files which were written by or to the persons involved or provided to them in the normal course of academic personnel procedures but refused to produce those documents submitted or written in official confidence.

Plaintiff now moves to compel the production of those documents which defendants refused to provide in response to her second request, and renews her motion to compel production of the documents from her own file which were withheld on the same basis. In the alternative, plaintiff requests that the Court certify to the United States Court of Appeals for the Ninth Circuit the question of her access to the documents involved, pursuant to 28 U.S.C. § 1292(b).

For the reasons set forth below, the Court concludes that the documents are protected by the privilege for official information and therefore denies plaintiff's motion to compel their production. Further, the Court finds that, at this stage of the litigation, the denial of access to the documents in question does not constitute an appealable interlocutory order under the standards set forth in 28 U.S.C. § 1292(b).

1. The Privilege Question

Rule 26 of the Federal Rules of Civil Procedure set forth the following general rule regarding discovery:

"Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * *." (emphasis supplied)

In applying this mandate to the instant problem the Court confronts a threshold choice of law issue. Plaintiff strenuously argues that in a case, such as the present action, predicated upon federal law, a district court must apply a federal standard to privilege questions. Defendants, on the other hand, contend that controlling authority requires deference to the applicable state rule of privilege. Both parties concede that the leading case on the choice of law question in this Circuit is Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960).²Baird involved an attempt by the Internal Revenue Service to compel an attorney to divulge the identity of his client. To decide this question the court had first to consider whether the availability of the attorney-client privilege in a federal question case was governed by federal common law or the law of the forum state. The court there concluded that the law of the forum state controlled. 279 F.2d at 632. The result reached in Baird was based upon a solicitude for the important state interest in safeguarding the confidentiality necessary to foster certain relationships.³ As such, Baird cannot be limited to the specific facts of that case nor to the precise privilege considered therein; rather it sets forth a principle applicable to privilege questions in general.⁴ To determine, therefore, the availability of a privilege for official information with regard to the documents sought by plaintiff, the Court turns to the law of the State of California, specifically § 1040 of the California Evidence Code. That section provides:

"(a) As used in this section, `official information' means information acquired in confidence by a public employee in the course of his duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.

"(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing such information, if the privilege is claimed by a person authorized by the public entity to do so and:

"(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or

(2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered."

Defendants first contend that the documents sought by plaintiff are within the "absolute" privilege provided in § 1040(b)(1). They argue that Section 51 of the Administrative Manual of the University of California, promulgated by the President of the University pursuant to a delegation of authority from the Regents, forbids disclosure of these documents⁵ and that the regulations contained in that Manual are to be considered statutes of the State of California within the meaning of § 1040(b) (1). Defendants rely on Hamilton v. Regents of the University of California, 293 U.S. 245, 55 S.Ct. 197, 79 L. Ed. 343 (1934) in support. That case held that an order of the Regents of the University was a state statute for purposes of sustaining jurisdiction under the provision for review, by appeal, in the United States Supreme Court of state judgments "where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity."⁶ The suggested analogy between 28 U.S.C. § 1257 and § 1040 of the California Evidence Code is unpersuasive. The broad reading of the term "statute of any state" in 28 U. S.C. § 1257(2) rests on the policy of ensuring Supreme Court review of allegedly unconstitutional state action with potentially far reaching impact and the recognition that "unlike other state action, legislation consists of rules having continuing force and intended to be observed and applied in the future; and this regardless of the state agency from which it proceeds." King Mfg. Co. v. Augusta, 277 U.S. 100, 104, 48 S.Ct. 489, 490, 72 L.Ed. 801 (1928). In contrast, the relevant policy considerations militate strongly in favor of a narrow construction of the words "statute of this state" in § 1040(b)(1) of the California Evidence Code. The official information privilege, like the other enumerated privileges, is an exception to the basic policy of full disclosure in litigation.⁷ It would be most inappropriate, therefore, to construe § 1040(b)(1) in such a way as to maximize the amount of information protected under the mantle of absolute privilege. For this reason the Court concludes that the term "statute of this state" in § 1040(b)(1) comprehends only enactments of the state legislature and not regulations promulgated by a state instrumentality such as those contained in the Administrative Manual of the University of California.⁸

Since defendants have not cited, and independent research has not revealed, any enactment of the state legislature which forbids disclosure of the documents sought by plaintiff, in order to resolve the privilege question presented here, the Court turns to section 1040(b)(2).

Section 1040(b)(2) requires the Court to balance the necessity for preserving the confidentiality of the information sought against the necessity for its disclosure in the interest of...