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Estate of Gugsa Dabela v. Town of Redding

United States District Court, D. Connecticut

March 23, 2018

ESTATE OF GUGSA ABRAHAM DABELA, et al, Plaintiffs,
v.
TOWN OF REDDING, et al., Defendants.

          RULING ON MOTION FOR PROTECTIVE ORDER

          Donna F. Martinez United States Magistrate Judge.

         The plaintiffs, the Estate of Gugsa Abraham Dabela and Abraham Dabela, the personal representative of the Estate, bring this § 1983 action against the Town of Redding, the Chief of Police Douglas Fuchs, certain Redding police officers (collectively "the Redding defendants") and "Killer John Doe." The plaintiffs allege that the Redding defendants "failed to conduct a proper investigation regarding the manner of death" of Gugsa Abraham Dabela ("Dabela") and "concluded the case [w]as a suicide because Dabela was an African-American."[1] (Compl. ¶97.) During the course of discovery, the plaintiffs deposed State's Attorney Stephen Sedensky ("Sedensky"), who is not a defendant, regarding his determination that the evidence did not support a conclusion that Dabela's death was a homicide. Sedensky declined to answer certain questions, asserting the attorney work-product and the deliberative process/mental process privileges. Pending before the court is Sedensky's motion for protective order. (Doc. #56.) He requests that the court (1) sustain his objections and (2) preclude the plaintiffs from disclosing the deposition transcript and/or video recording of the deposition and from making public comment concerning this case while this case is open. (Doc. #56 at 1.) The motion for protective order is granted in part and denied in part.

         I. Deposition Questions

         Sedensky argues that the "objectionable questions are focused on discovering [his] methodology and substance of his analysis of the evidence, the content of his discussions with investigators concerning the case, and his judgment as to the credibility of certain witnesses." (Doc. #57 at 19.)

         A. Deliberative Process/Mental Process Privilege[2]

         The deliberative process privilege protects communications that are part of the decision-making process of a governmental agency. See Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005) ("[T]he deliberative process privilege [is] a sub-species of work-product privilege that covers documents reflecting advisory opinions, [3] recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated."). It "has been applied to protect not only decisions made by federal government agencies, but also decisions by prosecutors." Starkey v. Birritteri, No. CIV.A. 12-10988, 2013 WL 3984599, at *2 (D. Mass. Aug. 2, 2013). To qualify under the deliberative process privilege, the document or testimony must be "(1) predecisional - that is, prepared in order to assist an agency decision maker in arriving at a decision, " and (2) deliberative - that is, actually related to the process by which policies are formulated. Unidad Latina En Accion v. U.S. Dep't of Homeland Sec., 253 F.R.D. 44, 47 (D. Conn. 2008). "[F]actual material not reflecting the agency's deliberative process is not protected." Local 3, International Brotherhood of Electrical Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988).

         "Courts sometimes distinguish between the deliberative process and mental processes privileges in that the former applies to material reflecting the pre-decisional, mental, and deliberative process, and the latter to the decision-maker's actual thought process. . . . However, each privilege complements the other, and in combination they operate to preserve the integrity of the deliberative process itself." In re World Trade Ctr. Disaster Site Litig., No. 05 CIV. 9141, 2009 WL 4722250, at *2 n.1 (S.D.N.Y. Dec. Anilao v. Spota, No. CV 10-32, 2015 WL 5793667, at *18 (E.D.N.Y. Sept. 30, 2015). 9, 2009); Dowling v. Arpaio, No. CV-09-1401-PHX-JAT, 2011 WL 1456732, at *3 (D. Ariz. Apr. 15, 2011) ("[T]he two concepts are viewed in conjunction with one another - a party seeks the mental impressions of a person as contained in that person's deliberative process.")

         The privilege is a qualified one: If the privilege is found to apply, the court uses a "balancing approach that considers the competing interests of the party seeking disclosure and of the government - specifically, its need to engage in policy deliberations without the omnipresent threat of disclosure." Winfield v. City of New York, No. 15CV05236, 2018 WL 716013, at *5 (S.D.N.Y. Feb. 1, 2018). "In assessing whether and to what extent the privilege bars disclosure, courts 'must balance the extent to which production of the information sought would chill the [government's] deliberations concerning such important matters . . . against any other factors favoring disclosure.'" Id. at *6. Courts weigh (i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the seriousness of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable. Id.

         B. Common Law Work Product Doctrine under Hickman v. Taylor The work product privilege "provides qualified protection for materials prepared by or at the behest of counsel in anticipation of litigation or for trial." In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007); see also United States v. Adlman, 134 F.3d 1194, 1196-97 (2d Cir. 1998) (work product doctrine "is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy 'with an eye toward litigation, ' free from unnecessary intrusion by his adversaries") (quoting Hickman v. Taylor, 329 U.S. 495, 510-11 (1947)). The work product doctrine under Hickman extends to nonparties and depositions. See In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., No. 05-MD-1720, 2018 WL 1162552, at *11 (E.D.N.Y. Feb. 26, 2018)("Work product that is not in a tangible form is protected under Hickman v. Taylor, 329 U.S. 495 (1947)"); Tankleff v. Cty. of Suffolk, No. 09-CV-1207, 2011 WL 5884218, at *1-2 (E.D.N.Y. Nov. 22, 2011)("The common law work product doctrine . . . extends to nonparties").

         "A party seeking discovery of attorney work-product must show 'substantial need, ' for fact work-product." In re Grand Jury Proceedings, 219 F.3d 175, 190 (2d Cir. 2000). As for work-product that shows mental impressions, conclusions, opinions, or legal theories of an attorney, "at a minimum such material is to be protected unless a highly persuasive showing [of need] is made." Id. at 190-91 (quoting Adlman, 134 F.3d at 1204).

         C. Discussion

         After careful review of the deposition transcript, following the principles enunciated above, the court rules as follows:

         1. The motion for protective order is granted and the objections sustained as to the following questions because the answers would reveal the deliberations, analysis, opinions, recommendations, debate, and/or advice regarding Sedensky's prosecutorial decision: dep. at 15, lines 3-5; dep. at 16, lines 8-10; dep. at 17, line 14; dep. at 22, lines 10-12; dep. at 23, lines 2-4; dep. at 25, lines 18-19; dep. at 30, lines 17-21; dep. at 57, lines 13-17; dep. at 60, lines 12-15; dep. at 66, lines 19-22; dep. at 78, line 25 to dep. at 79, lines 1-3; dep. at 89, lines 18-19; dep. at 102, lines 5-6; dep. at 103, lines 2-3; dep. at 119, lines 8-11; dep. at 168, line 18 and lines 23-25; dep. at 175, lines 9-11; dep. at 176, lines 23-25; dep. at 177, lines 14-16; dep. at 192, lines 17-19; dep. at 235, lines 6-7; dep. at 236, lines 20-22; dep. at 238, lines 2-6 and lines 23-25 and dep. at 240, lines 3-5.

         The plaintiffs contend that even if the deliberative process privilege applies, the court should allow discovery because "all of the factors" of the balancing test ...


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