United States v. Town of Colo. City
| Decision Date | 27 October 2014 |
| Docket Number | No. 3:12-cv-8123-HRH,3:12-cv-8123-HRH |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. TOWN OF COLORADO CITY, ARIZONA; et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
(Prescott Division)
Plaintiff moves pursuant to Rule 37(a), Federal Rules of Civil Procedure, for an order compelling defendants Town of Colorado City ("Colorado City") and City of Hildale ("Hildale"), Twin City Power, and Twin City Water Authority to produce minutes from executive session meetings of their respective councils or boards. The motion is opposed by the defendants. The defendants jointly have moved2 to strike a supplemental filing by plaintiff in furtherance of the provisions of Local Rule 37.1(a). This motion is also opposed. Oral argument has been requested on the plaintiff's main motion but is not deemed necessary.
Plaintiff served the defendants with requests for production of documents pursuant to Rule 34, Federal Rules of Civil Procedure. Each of the requests sought "minutes of allmeetings" or "all minutes of meetings" between specified dates.3 By its motion to compel, plaintiff has revised the scope of its requests to January 1, 2005 (instead of January 1, 2001), to present. The defendants responded by producing minutes; but in doing so, each of them withheld minutes of executive sessions of the several councils and boards.
Each of Colorado City and Hildale has responded to the motion to compel.4 Hildale is joined in its response by the power and water authorities. All of the defendants argue that plaintiff's motion violates Local Rule 37.1. Employing somewhat different words, both responses contend that plaintiff did not request minutes of executive sessions. Hildale and the utilities argue in the alternative that executive session minutes are protected and privileged. Colorado City argues that what plaintiff "actually wants" is to compel further deposition responses from town employees.5 Like its co-defendants, Colorado City also argues that executive session minutes may not be disclosed under Arizona law, the deliberative process privilege, the attorney-client privilege, or the work product doctrine.
The court first addresses the subsidiary motion to strike.
When filing its motion to compel, plaintiff in fact failed to include with its memorandum the attachment required by Local Rule 37.1. It has been suggested that omission of the attachment was a deliberate ploy that prejudiced the defendants.
Plaintiff's motion to compel in fact makes express reference to "the L.R. Civ. 37.1(a) Attachment."6 It is clear that plaintiff intended to comply with Rule 37.1, and the absence of the required attachment did not come to the attention of plaintiff's counsel until thedefendants responded and complained. Plaintiff then promptly made the requisite filing.7 The initial absence of the required attachment was plainly an administrative oversight. There is no harm to the defendants. It is clear from the parties' briefing that everyone understands what this motion is about. Defendants were not misled because of the absence of the attachment until after their responses were filed. Defendants do not suggest that their responses would have been any different had they received the attachment prior to responding.
The joint motion8 to strike the United States' Local Rule 37.1(a) attachment is denied.
The defendants' contention that plaintiff never requested the minutes of executive sessions fails for two reasons. First, it is clear from the parties' filings that there were extensive discussions between the parties in an effort to resolve the instant disagreement about the production of meeting minutes. In the course of those discussions, defendants came to know, beyond any question, that it was minutes of executive sessions that were being sought. After considering plaintiff's arguments for production, the defendants declined to do so, and the motion to compel followed. Second, plaintiff's Local Rule 37.1 attachment makes it clear that the defendants were called upon in the first instance to produce "all" minutes.
Colorado City contends that what plaintiff really wants is further deposition responses. That is not what plaintiff is requesting. That is not what plaintiff's Rule 34 requests sought.
The issues of substance presented by the motion to compel have to do with the federal law of privileges and local law with respect to the release of records such as minutes of executive sessions. The analysis starts with Rule 501, Federal Rules of Evidence, which provides:
• a federal statute; or
• rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
The instant motion to compel does not raise a constitutional issue; nor does it directly involve a federal statute or rules of the Supreme Court. This is a civil case, but it is one governed by federal statutes having to do with fair housing and policing. Thus the federal common law with respect to privileges applies in this case. "'[S]ince the adoption of the Federal Rules of Evidence, courts have uniformly held that federal common law of privilege, not state law, applies.'" United States v. Blackman, 72 F.3d 1418, 1423 (9th Cir. 1995) (quoting United States v. Sepenuk, 864 F. Supp. 1002, 1004 n.1 (D. Or. 1994)). There is no federal privilege with respect to the protection of minutes of executive sessions; although, as discussed below, other federally recognized privileges may come into play in this case.
If the court were to look to state law for guidance on the subject of whether or not minutes of executive sessions are privileged records, the answer would be there is no such privilege. Minutes of executive sessions of deliberative bodies are protected in both Arizona and Utah; but the minutes are not privileged.
A.R.S. § 38-431.03(B) provides for the confidentiality of minutes of and discussions made in executive sessions. Utah Code Annotated § 52-4-206(5) provides for the protection of recorded or written minutes of executive sessions. The Arizona law "prohibit[s] voluntary public disclosure [but] not disclosure pursuant to a legitimate legal inquiry." United States v. Phoenix Union High School Dist., 681 F.2d 1235, 1236 (9th Cir. 1982).Similarly the Utah statute does not make executive session minutes privileged. Indeed, Utah law makes express provision for the disclosure of protected records, "to the federal government ... if the requesting entity ... enforces, litigates, or investigates civil, criminal, or administrative law, and the record is necessary to a proceeding or investigation[.]" Utah Code Ann. § 63G-2-206(1)(b). Here, the federal government is investigating and seeks to enforce federal fair housing and policing laws. The records which plaintiff seeks may be relevant evidence of the alleged entanglement of the defendants with the FLDS Church. Thus, even if the court were to be guided by state law with respect to the production of executive session minutes, the laws of Arizona and Utah do not in this instance foreclose production of executive session minutes.
Although there is no privilege for executive session minutes per se, the parties aptly discuss the possible application of the attorney-client privilege, the work product privilege, and the deliberative process privilege. As to these, defendants appear to concede...
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