Debunking Metro’s Reliance on the Deliberative Process Privilege

If my experience is typical, subpoenaing Metro for documentation is a royal pain.  Often the response is an objection that the criminal investigation is ongoing and Metro refuses to respond.  Can Metro simply declare it will not respond to your subpoena?  Not really.

I interpret Metro’s response as asserting the deliberative process privilege.  Three decisions from the local federal court discuss it.  The first is from infamous Mazzeo v. Gibbons debacle.[1]  Plaintiff accused another of domestic violence, that person was charged, and the defendant entered a negotiated plea.  She subpoenaed the Clark County District Attorney’s office to find out why.  The DA objected and relied, in part, upon the deliberative process privilege.

“The Ninth Circuit has made it clear that facts and evidence are not protected by the deliberative process privilege.”  To qualify as privileged, “a document must be both: 1) predecisional or antecedent to the adoption of agency policy; and 2) ‘deliberative,’ i.e. actually related to the process by which policies are formulated.”   The privilege’s purpose is “to encourage forthright and candid discussions of ideas with the goal of improving the decision-making process.”  Again, facts are not protected.  This applies especially so in the prosecutorial context, where the prosecutor is ethically obligated to disclose exculpatory evidence.  The privilege did not apply in that case.

The deliberative process privilege also arose in Joseph v. Las Vegas Metro. Police Dep’t.[2]  Factually, Metro shot and killed a person, whose family then sued.  The family then subpoenaed the Clark County District Attorney’s office for documents from its investigation.  The DA responded but withheld one document, an attorney’s notes written while preparing for the coroner’s inquest concerning the shooting.[3]  The DA argued the document was privileged attorney work product.

First, the work product privilege had no application.  The DA was “not a party to the present litigation, nor is he a ‘representative of’ a party in this litigation for whom the work product was prepared.”  Second, a slew of cases had concluded “the privilege is unavailable in the analogous situation where a prosecutor in a prior criminal investigation later objects to discovery of work product by a litigant in a related lawsuit.”   Third, the document itself did not contain any of the DA’s mental impressions, but instead outlined anticipated factual testimony.

The deliberative process privilege also arose in Thompson v. Las Vegas Metro. Police Dep’t.[4]  Magistrate Judge Koppe first noted that the deliberative process privilege does extend to criminal prosecutions.  The privilege protects documents that “reflect advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated.”[5]  Again, the “privilege protects the expression of opinions or recommendations, but not purely factual information.”

Even if the privilege applies, “the privilege is a qualified one and the materials will be disclosed if a litigant’s need for the materials and the need for accurate fact-finding outweigh the government’s interest in confidentiality.”  The deliberative process privilege should be “strictly confined within the narrowest possible limits consistent with the logic of its principles.”[6]

In making that determination, courts look to several factors, including: (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. Additionally, courts have also looked to (5) the interest of the litigant, and, ultimately society, in accurate judicial fact finding; (6) the seriousness of the litigation and the issues involved; (7) the presence of issues concerning alleged governmental misconduct; and (8) the federal interest in enforcement of federal law.

Magistrate Judge Koppe did not actually conclude in this order whether the privilege applied.

All three of these opinions stand for the proposition that Metro cannot simply ignore a subpoena and cannot declare its entire file privileged or undiscoverable.  Instead, if it wishes to use the deliberative process privilege, then it should respond with a privilege log just like everyone else.

[1] 2:08-cv-01387, 2010 U.S. Dist. LEXIS 88523 (D. Nev. July 26, 2010).  Gibbons was the governor at the time.  If you don’t know about the case, you can start reading about it here.  This was not Gibbons’ only litigation while governor.  He got divorced and documents filed on his behalf stated being in “close quarters with [his wife] was like being locked in a phone booth with an enraged ferret.”
[2] 2:09-cv-00966, 2011 U.S. Dist. LEXIS 28510, 2011 WL 846061 (D. Nev. Mar. 8, 2011).
[3] The coroner’s inquest was a procedure used in police shootings to determine if the shooting was justified.  It is no longer used but you can read a little about it here.
[4] 2:14-cv-01286, 2015 U.S. Dist. LEXIS 134716 (D. Nev. Oct. 2, 2015).
[5] Id. (quoting FTC v. Warner Comm’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984)).
[6] Id. (quoting North Pacifica, LLC v. City of Pacifica, 274 F. Supp. 2d 1118, 1122 (N.D. Cal. 2003)).