United States District Court, D. Nevada
JAMES CURREY, SR., J.C., a minor by and through his guardian ad litem JAMES CURREY, et al., Plaintiffs,
CARSON CITY SCHOOL DISTRICT, et al., Defendants.
ORDER RE: ECF NO. 26
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.
the court is Plaintiffs' Motion to Compel (ECF No. 26).
Defendants' opposed (ECF No. 28) and Plaintiffs'
replied (ECF No. 31). The issue presented by Plaintiffs'
motion pertained to Defendants' assertion of what is
called the “qualified privilege for official
information” which if recognized would allow the
Defendants to withhold production of certain documents which
Defendants claim are confidential or private, i.e., mainly
documents comprising the individual Defendants' personnel
files maintained by Defendant Carson City School District
(CCSD). The court ruled on Plaintiffs' motion at a
hearing held on April 3, 2018, the outcome of which is set
forth in this court's Minutes of Proceedings (ECF No.
33). The intent of this order is to delineate the protocol a
party asserting the qualified privilege for office
information must follow in general civil litigation cases.
common law recognizes a qualified privilege for official
information. Kerr v. United States Dist. Ct. for N.D.
Cal., 511 F.2d 192, 198 (9th Cir. 1975); aff'd, 426
U.S. 394 (1976). Kelly v. City of San Jose, 114
F.R.D. 653, 668 (N.D. Cal. 1987); Sanchez v. City of
Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1991).
Questions of privilege arising in an action predicated upon
primarily issues of federal law, as in the instant matter,
are resolved by federal law. Kerr, supra,
511 F.2d at 197, citing Heathman v. U.S. Dist. Ct.,
503 F.2d 1032, 1034 (9th Cir. 1974). While federal courts
should not ignore state law or rights recognized by state
government (and should take into account the views of state
authorities on the importance of privacy rights),
nevertheless state privilege doctrine is not binding on
federal courts in actions arising under federal law.
Kelly, supra, 114 F.R.D. 1114, 1115 (9th Cir. 1976).
files fall under the gambit of official information.
Sanchez at 1033, citing Zaustinsky v. University
of Cal, 96 F.R.D. 622, 625 (N.D. Cal. 1983), aff'd,
782 F.2d 1055 (9th Cir. 1985). The qualified privilege
doctrine has been recognized in decisions from the District
of Nevada: Smith v. Casey, No.
2:06-cv-01188-BES-GWF, 2008 WL 2570855 (D. Nev. 2008);
Boar Inc. v. County of Nye, No.
2:08-cv-01091-PMP-RJJ, 2010 WL 5070888 (D. Nev. 2010);
Carrillo v. Las Vegas Metropolitan Police Department
(LVMPD), No. 2:10-cv-02122, -KJD-GWF, 2013 WL 592893 (D.
Nev. 2013). The undersigned has authored several decisions
which recognized this privilege. Those orders, however, arose
in the context of § 1983 prison conditions of
confinement cases. Manley v. Zimmer, No.
3:11-cv-000636-RCJ-WGC, 2013 WL 5592328 (D. Nev. 2013), and
Cross v. Jaeger, No. 3:13-cv-00433-MMD-WGC (D. Nev.
2015). While certain of the protocols which the court
concluded should be followed with respect to the assertion of
the qualified information privilege in § 1983 cases, and
while those decisions are instructive, the procedures and
analysis to be undertaken in a general federal civil
litigation matter differ somewhat, which the court will now
party withholds information which is otherwise discoverable
by claiming it is privileged in some fashion, “the
party must (i) expressly make the claim; and (ii) describe
the nature of the documents, communications or tangible
things not produced or disclosed and do so in a manner that,
without revealing information itself privileged or protected,
will enable other parties to address the claim.”
Fed.R.Civ.P. 26(b)(5)(A). Typically, the description of
withheld documents required by Rule 26(b)(5)(A) is satisfied
by the contemporaneous production of a privilege log.
Kelly, supra, 114 F.R.D. at 669. Ramirez v.
County of Los Angeles, 231 F.R.D. 407, 410 (C.D. Cal.
2005). In this instance, Defendants' counsel timely
invoked the qualified privilege for official information by
serving a privilege log which identified (by general
description) the documents which were being withheld by the
CCSD under this doctrine. (ECF No. 28-2 at 2-8.)
decisions on the official information privilege also hold,
however, that the party asserting the privilege must submit a
declaration or affidavit from the head of the governmental
department which has control over the information. This
declaration affidavit must include: (1) an affirmation that
the agency generated or collected the material in issue and
has in fact maintained its confidentiality (if the agency has
shared some or all of the material with other governmental
agencies it must disclose their identity and describe the
circumstances surrounding the disclosure, including steps
taken to assure preservation of the confidentiality of the
material), (2) a statement that the official has personally
reviewed the material in question, (3) a specific
identification of the governmental or privacy interests that
would be threatened by disclosure of the material to
plaintiff and/or his lawyer, (4) a description of how
disclosure subject to a carefully crafted protective order
would create a substantial risk of harm to significant
governmental or privacy interest, and (5) a projection of how
much harm would be done to the threatened interests if the
disclosure were made. Carrillo, supra, 2013 WL
592893, *3-4; Boar, supra, 2010 WL 5070888, *2-3;
Kelly, supra, 114 F.R.D. at 656.
purpose of the declaration (or affidavit) is to enable the
court “to make a reasonable assessment to the weight of
the interests against and in favor of disclosure.”
Miller v. Panucci, 141 F.R.D. 292 (C.D. 1992). The
Miller court explained the necessity of the
declaration as follows:
“The [declaration] procedure is essential since the
Court is ill-equipped to make an intelligent decisions as to
the discoverability during an in camera inspection
when it has insufficient information from the resisting party
as to why disclosure should not be permitted.”
Miller, supra, 141 F.R.D. at 300.
is no dispute among the authorities that such an affidavit or
declaration must be submitted by the party asserting the
privilege. The question unresolved, at least by the cases
discussing this privilege by the District of Nevada, is
when the declaration or affidavit is to be provided.
district courts of the District of California, the
declaration is to be served contemporaneously with the
assertion of a party's objections. In Ramirez,
the court restated the rulings in Miller and
Kelly that the declaration must be provided
“at the time it [ ] serves its response to the
discovery request.” Ramirez, 231 F.R.D. at
410; Miller, 141 F.R.D. at 300; Kelly, 114
F.R.D. at 669. The failure in those jurisdictions to
contemporaneously serve the declaration with the discovery
objection is fatal to the assertion of the official
information privilege: “should the threshold
requirements not appear in the papers, the privilege
assertion will be overruled in its entirety and complete
disclosure will be ordered.” Miller, 141
F.R.D. at 301; Ramirez, 231 F.R.D. at 411.
other hand, the cases in the District of Nevada on the
qualified privilege for official information doctrine which
the undersigned has been able to review do not seem to have
necessarily imposed this requirement, i.e., that the
declaration or affidavit regarding the confidential nature of
the records must be served along with the responding
party's objections and privilege log. The first District
of Nevada case on this subject was Smith v. Casey.
While recognizing the qualified information privilege as
enunciated in Kelly (Smith, supra, 2008 WL
2570855, *3-4), the Smith decision did not similarly
embrace the privilege log and declaration requirements.
Nevertheless, the court undertook a balancing test relating
to plaintiff's discovery requests from the standpoint of
consideration of the defendants' multiple motions for
protective orders in conjunction with extensive in
camera review of the contested documents. Smith,
supra, *1, 7-9.
court in Boar Inc., concluded the declaration is
essential (citing Kerr, Miller, and Kelly;
2010 WL 5070888, *2). But the defendants in Boar
Inc., never submitted a declaration either
simultaneously with their objections or with their court
filings. The court “overlooked this deficiency, ”
and “in the interests of justice and judicial economy,
proceeded to examine the merits of their arguments.”
(Id.) (The court concluded after its analysis of ...