(PC) Landreth v. Lehil

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA BRANDON MICHAEL LANDRETH, No. 2:20-CV-00472-DMC-P 12 Plaintiff, 13 v. ORDER BHUPINDER LEHIL, et al., 15 Defendants.

17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983.

19 Pending before the Court is Plaintiff’s motion relating to discovery requests propounded on Defendant Carrick. See ECF No. 97. Plaintiff seeks an order compelling further discovery responses and documents from Defendant Carrick in response to Plaintiff’s Requests for Productions Nos. 1 and 2. ECF No. 97. Defendant opposes Plaintiff’s motion. ECF No. 98.

23 In dispute is a memorandum attached to a February 15, 2022, email from Defendant Carrick to Dr. Grace Song. The Court previously overruled Defendant Carrick’s objections that the requests at issue were overly broad as to time, unduly burdensome, and not proportional to the needs of the case and violated the privacy rights of third-party inmates. See ECF No. 110. The Court also found that because the email at issue containing attorney-client communication was forwarded to a third party and Defendant Carrick provided no reason why such disclosure was not a waiver, Defendant Carrick waived the attorney-client privileged communication contained in the February 15, 2022 email. See id. 3 With respect to Defendant Carrick’s objection that the production of the attached memorandum violated the deliberative process privilege, the Court ordered an in camera review so it could ascertain whether such privilege was appropriate. See id. The Court previously detailed the Parties’ positions regarding the deliberative process privilege and will not repeat those here. See id., pgs. 8-13.

8 For the following reasons, Plaintiff’s motion is granted with respect to Plaintiff’s Requests for Productions Nos. 1 and 2 as to Defendant Carrick.

11 II. DISCUSSION 12 The deliberative process privilege permits the government to withhold documents that reflect advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated. See F.T.C. v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). The purpose of the privilege is to promote open discussion among those responsible for making governmental decisions, and to protect against premature disclosure of proposed agency policies or decisions. See id.; NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975).

19 To qualify, a document must meet two requirements. Warner Commc’ns Inc., 742 F.2d at 1161. First, it must have been generated before the adoption of an agency’s policy or decision. See Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (noting satisfaction of the first factor is determined by whether the document is “pre- decisional”). Second, the document must be deliberative in nature—meaning it must contain opinions, recommendations, or advice about agency policies. See id. (determining whether the document reflects the give-and-take of the consultative process). “Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position.”

28 Id. Whereas, documents that contain only purely factual material are not protected. Warner | Comme’ns Inc., 742 F.2d at 1161.

2 The Court has reviewed the memorandum attached to the February 15, 2022 || email and finds that the deliberative process privilege does not apply. It is clear that the authors, | and Dr. Song, neither investigated nor drafted this memorandum before the December 15, 2015, || memorandum regarding transition lenses. Thus, the memorandum is neither pre-decisional nor || reflects the personal positions of the writers, as the December 15, 2015, memorandum authored || by Defendant Carrick already sets forth the official policy on transitions lenses. Therefore, || because the memorandum does not meet the first requirement set forth in F.T.C. v. Warner | Comme’ns Inc., 742 F.2d 1156 (9th Cir. 1984), the Court need not address whether the || memorandum contains opinions, recommendations, or advice about agency policies or whether a | qualified privilege applies.

13 Il. CONCLUSION 14 Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion to compel || discovery, ECF No. 97, is granted. Defendant Carrick shall serve further responses to Plaintiffs || Requests for Productions Nos. 1 and 2 and produce the memorandum within 30 days of the date || of this order. The Clerk of the Court is directed to terminate ECF No. 97 as a pending motion.

18 = Dated: May 15, 2023 Co 0 DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE