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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

EL COMITE PARA EL BIENESTAR

DE EARLIMART, et al.,

Plaintiffs, No. CIV S-04-0882 LKK KJM

vs.

MARY-ANN WARMERDAM, et al.,

Defendants. ORDER

 /

 Plaintiff’s motion to compel production of documents came on regularly for

hearing August 10, 2005. Brent Newell appeared for plaintiffs. Michael Neville appeared for the

State defendants; Robert Jenne appeared for the Air Resources Board; Polly Frenkel appeared for

the Department of Pesticide Regulation. Upon review of the documents in support and

opposition, upon hearing the arguments of counsel, upon review of the disputed documents in

camera, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

Defendants have withheld fourteen documents on the basis of the deliberative

process privilege. The purpose of the deliberative process privilege “is to prevent injury to the

quality of agency decisions” by ensuring that the “frank discussion of legal or policy matters” in

writing, within the agency, is not inhibited by public disclosure. NLRB v. Sears, Roebuck &

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 Counsel for Department of Pesticide Regulation has advised the court that the copy

provided to the court of Exhibit 1 is the best available copy.

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Co., 421 U.S. 132, 150-51 (1975). To come within the ambit of the deliberative process

privilege, a document must be both “predecisional” and “deliberative.” National Wildlife Fed’n

v. U.S. Forest Service, 861 F.2d 1114, 1117 (9th Cir. 1988). A “predecisional” document is one

“prepared in order to assist an agency decisionmaker in arriving at his decision.” Assembly of

the State of California v. U.S. Dep’t of Commerce, 968 F.2d 916, 920 (9th Cir. 1992) (citations

omitted). Predecisional documents are a part of the “deliberative process” if “the disclosure of

[the] materials would expose an agency’s decisionmaking process in such a way as to discourage

candid discussion within the agency and thereby undermine the agency’s ability to perform its

functions.” Id. 

Even where the agency establishes the predecisional deliberative nature of the

documents, however, disclosure still may be compelled where the government’s interest in nondisclosure is overcome by the need of the opposing litigant and by the need for accurate factfinding. Federal Trade Commission v. Warner Communications, Inc., 742 F.2d 1156, 1161 (9th

Cir. 1984). In determining whether the privilege is overcome, the court should consider the

relevance of the withheld material, the availability of other evidence, the government’s role in the

litigation and the extent to which disclosure would hinder frank and independent discussion

within the agency. Id.

Applying these standards, the court finds disclosure of the following documents is

warranted: Exhibits 11 (with redaction only of the section titled “Options” and the section

including issues analyses beginning with “Issue 1" and continuing through and including the

“Timetable”), 2 (with redaction only of the section titled “Options”), 3 (with redaction only of

the section titled “Options”), 9 (with redaction only of the two pages titled “Meeting Notes”), and

10 (with redaction only of pages 3 through 8, beginning with the section titled “Issues and 

Options. . .”). The remaining documents are properly withheld under the deliberative process

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privilege and the Warner factors do not weigh in favor of disclosure in the circumstances of this

case.

Accordingly, IT IS HEREBY ORDERED that within ten days from the date of

this order defendants shall produce, for inspection and copying, the Exhibits as identified above.

DATED: August 16, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

006

elcomite.oah

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