Thomas v. Matthew Cate

• Decision Date: 19 February 2010
• Docket Number: No. 1:05-cv-01198-LJO-JMD-HC.,1:05-cv-01198-LJO-JMD-HC.
• Citation: 715 F.Supp.2d 1012
• Parties: Brian THOMAS, Petitioner, v. Matthew CATE, Respondent.
• Court: U.S. District Court — Eastern District of California

715 F.Supp.2d 1012

Brian THOMAS, Petitioner,

v.Matthew CATE, Respondent.

No. 1:05-cv-01198-LJO-JMD-HC.

United States District Court,E.D. California.

Feb. 19, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Gary K. Dubcoff, Law Offices of Gary K. Dubcoff, San Francisco, CA, Marc E. Grossman, Law Offices of Marc E. Grossman, Upland, CA, for Petitioner.

ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION TO COMPEL DISCOVERY RESPONSES

ORDER DIRECTING CLERK OF COURT TO SUBSTITUTE RESPONDENT

JOHN M. DIXON, United States Magistrate Judge.

Procedural Background

Petitioner Brian Thomas (“Petitioner”) is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On March 19, 2009, the Court scheduled an evidentiary hearing in this matter in order to permit Petitioner to present evidence that article V, section 8(b) of the California Constitution created a significant risk of prolonging Petitioner's incarceration and therefore violated Petitioner's rights under the Ex Post Facto Clause of the United States Constitution. (Doc. 27). ¹ On July 10, 2009, Petitioner filed a request for leave to propound discovery pursuant to Rule 6 of the Rules Governing Section 2254 Cases. (Doc. 36).

The Court granted Petitioner's request for leave to propound discovery on July 21, 2009, 2009 WL 2171564. (Doc. 38). On August 7, 2009, 2009 WL 2424683, the District Judge denied Respondent's ² motion for reconsideration of the order granting Petitioner leave to propound discovery. (Doc. 44).

Petitioner filed a motion to compel discovery on August 31, 2009. (Doc. 48). On October 19, 2009, the parties filed a Joint Statement regarding the parties' outstanding discovery disputes. (Doc. 19). For reasons explained below, Petitioner's motion to compel is granted in part and denied in part.

Discussion

I. Introduction

The Ex Post Facto Clause of the United States Constitution prohibits the States from enacting a law which, by retroactive operation, increases the punishment for a crime after its commission. U.S. Const., Art. I § 10; E.g. Garner v. Jones, 529 U.S. 244, 249-50, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000) (citing Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)). In the parole context, a prisoner may demonstrate an ex post facto violation by establishing that, as applied to him, a retroactive parole law “creates a significant risk of prolonging [his] incarceration.” Garner, 529 U.S. at 250, 120 S.Ct. 1362 (citing Lynce v. Mathis, 519 U.S. 433, 445-46, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997)); Brown v. Palmateer, 379 F.3d 1089, 1095 (9th Cir.2004). In Garner, the Supreme Court established that whether a retroactive parole law violates the Ex Post Facto Clause depends on the manner in which the law is applied to the prisoner challenging its application. Garner, 529 U.S. at 256-57, 120 S.Ct. 1362.

In addition to imposing a new, substantive standard for evaluating ex post facto claims in the parole context, the Supreme Court's decision in Garner revealed the importance of affording a prisoner the opportunity to obtain discovery. Id. at 257, 120 S.Ct. 1362. Although the Supreme Court noted that the proper scope of discovery lies within the discretion of the district courts, it identified two types of information that are generally relevant to ex post facto inquiries: 1) internal policies regarding implementation of the challenged statute by the agency charged with implementing the statute, and 2) data reflecting the real-world operation of the challenged statute.

Id. at 255-57, 120 S.Ct. 1362. Much of Petitioner's requested discovery falls within the two categories of information discussed by the Supreme Court's decision in Garner: the Governor's practices and policies regarding his implementation of article V, section 8(b), and the real-world practical effect of article V, section 8(b) on parole trends in California. Because the Governor's internal practices and policies are relevant to Petitioner's claim for relief, discovery in this action raises important privilege issues that must be decided with care.

A. The Deliberative Process Privilege

As this case is before the court based on a federal question, federal privilege law applies. NLRB v. North Bay Plumbing Inc., 102 F.3d 1005, 1009 (9th Cir.1996) (citing Fed.R.Evid. 501). “Federal common law recognizes the deliberative process privilege.” North Pacifica, LLC v. City of Pacifica, 274 F.Supp.2d 1118, 1120 (N.D.Cal.2003). The deliberative process privilege exempts from discovery information reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which government decisions and policies are formulated. FTC v. Warner Comm's., Inc., 742 F.2d 1156, 1161 (9th Cir.1984). The deliberative process privilege is designed to allow agencies to freely explore possibilities, engage in internal debates, or play devil's advocate without fear of public scrutiny. Assembly of California v. United States Dep't of Commerce, 968 F.2d 916, 920 (9th Cir.1992) (discussing Exemption 5 of the Freedom of Information Act, 5 U.S.C. § 552(b)(5)). ³ Information is protected by the deliberative process privilege if it predates the governmental decision and is “deliberative” in nature. Warner Comm's., 742 F.2d at 1161. The key inquiry in determining whether particular information is “deliberative” is whether disclosure of the information would expose the decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions. Carter v. United States DOC, 307 F.3d 1084, 1090 (9th Cir.2002).

The burden of establishing application of the deliberative process privilege is on the party asserting it. E.g. North Pacifica, 274 F.Supp.2d at 1121. Assertion of the deliberative process privilege requires: (1) a formal claim of privilege by the head of the department having control over the requested information; (2) assertion of the privilege based on actual personal consideration by that official;(3) a detailed specification of the information for which the privilege is claimed, with an explanation why it properly falls within the scope of the privilege; and (4) a showing that the material for which the privilege is asserted has been kept confidential. Coleman v. Schwarzenegger, 2008 U.S. Dist. LEXIS 111653 *19 (E.D.Cal.2009) (citing Landry v. F.D.I.C., 204 F.3d 1125, 1135 (D.C.Cir.2000) and National Wildlife Federation v. U.S. Forest Service, 861 F.2d 1114, 1117 (9th Cir.1988)). While the party invoking the deliberative process privilege must establish that material subject to its privilege claim contains personal opinions of the type that would chill deliberations, the invoking party does not bear the burden of showing each individual document would actually chill deliberations.

See Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d at 866, 869 (D.C.Cir.1980).

The deliberative process privilege is a qualified privilege, and a litigant may obtain deliberative materials if his or her need for the materials and the need for accurate fact-finding override the government's interest in non-disclosure. E.g. Warner Comm's., 742 F.2d at 1161. Among the factors to be considered in determining whether to sustain a deliberative process privilege claim are: 1) the relevance of the evidence; 2) the availability of other evidence; 3) the government's role in the litigation; and 4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions. Id.; accord Hinckley v. United States, 140 F.3d 277, 285 (D.C.Cir.1998) (employing similar balancing approach). ⁴

1. The Parties' Contentions

Petitioner contends that the deliberative process privilege does not apply at all to Petitioner's claim because the Governor's decision making process is itself at issue in this action. (Joint Statement at 28). ⁵ The Governor and Respondent contend that even where the government's decision-making process is at issue, the privilege prohibits discovery of deliberative materials unless the party seeking discovery makes “a clear showing of misconduct or wrongdoing.” (Joint Statement at 35). The Court cannot fully accept either position.

a. Petitioner's Contention

A number of courts have held that the deliberative process privilege does not apply in actions where the government's decision making is central to the plaintiff's case. E.g. In re Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 145 F.3d 1422, 1424-25 (D.C.Cir.1998); United States v. Lake County Bd. of Comm'rs, 233 F.R.D. 523, 526 (N.D.Ind.2005) (collecting cases). As the Court of Appeals for the District of Columbia explained in In re Subpoena:

The privilege was fashioned in cases where the governmental decisionmaking process is collateral to the plaintiff's suit. See, e.g., In re Subpoena Served Upon the Comptroller of the Currency, 296 U.S.App.D.C. 263, 967 F.2d 630 (D.C.Cir.1992) (shareholders sought Comptroller's bank examination reports to prove fraud charges against corporation); Singer Sewing Machine Co. v. NLRB, 329 F.2d 200 (4th Cir.1964) (petitioner wanted deliberative materials to establish a defense to an unfair labor practice charge). If the plaintiff's cause of action is directed at the government's intent, however, it makes no sense to permit the government to use the privilege as a shield. For instance, it seems rather obvious to us that the privilege has no place in a Title VII action or in a

constitutional claim for discrimination. The Supreme Court struggled in Crawford-El [ v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) ] and Webster [ v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) ] with governmental claims that discovery in such a proceeding should be limited, but no one in any of these cases ever...